High Court Decision Addresses Legal Remuneration for Electronic Evidence in Drug Possession Case

Citation: [2023] EWHC 3123 (SCCO)
Judgment on

Introduction

In the recent case of R v Besard Gaxha, the High Court of Justice - Senior Courts Costs Office (SCCO) engaged in a detailed assessment of prosecution evidence within the context of legal remuneration. Costs Judge Nagalingam oversaw the appeal against the original determination of pages of prosecution evidence (PPE) deemed payable. This intricate decision centred on the applicability of The Criminal Legal Aid (Remuneration) Regulations 2013 to digital evidence in drug possession and criminal property cases.

Key Facts

Besard Gaxha was charged with possession of Class A and B controlled drugs with intent and possessing criminal property. Evidence included drugs, cash, and an iPhone (exhibit RBK/2) allegedly used in drug operations. Gaxha argued the phone was communal and used by others, denying sole ownership. The crux of the case pivots on the attribution of the phone to Gaxha and the interpretation of PPE, which included a vast amount of electronic evidence.

Claims for legal costs associated with the evidence were initially based on 10,000 PPE but were reduced and disputed. The key areas of contention included the proportion of electronic evidence categorized under ‘Files & Media’, ‘General info, Network info, Event Log, Installed Apps’, and ‘Web’ that should be compensable as PPE.

The legal principles applied in this case derive from paragraph 1 of Schedule 2 to the 2013 Regulations, which stipulate the criteria for determining the number of PPE. Specifically, electronic documents served by the prosecution form part of PPE, but there is discretion involved when considering exhibits that have never existed in paper form.

The case analysis focuses on the appropriate remuneration for PPE related to electronic evidence, requiring the application of a percentage approach to ensure fair compensation. Judge Nagalingam emphasizes the significance of attributing the phone, and by extension, the evidence, to ‘G’ conclusively and how this impacts the necessity to closely examine the electronic evidence page by page.

Throughout the judgment, there is a delicate balance between the need to scrutinize the evidence thoroughly and the practicality of remunerating professionals for their examination of possibly irrelevant or incidental information. The court also underscores the necessity of establishing ownership and differentiating between incriminating and innocent use of the defendant’s phone in constructing a fair payment assessment.

Outcomes

After examining the specifics of the case, Judge Nagalingam concluded that the Respondent’s increased allowance for ‘Files & Media’ was appropriate. For ‘General info, Network info, Event Log, Installed Apps’, a reasonable compensation would be a 10% allowance of the disputed pages, equating to 77 pages permitted for PPE. Regarding ‘Web Related Data’, Judge Nagalingam found an additional 88 pages of web history relevant and allowed over the Respondent’s proposals.

The Appellant’s appeal was, therefore, successful to some extent, as limited increases were made to the allowances for certain categories of the electronic evidence. Additionally, a cost award of £1,000 plus the court fee was granted in favor of the Appellant.

Conclusion

The case of R v Besard Gaxha is a demonstration of the complexities in attributing digital evidence and determining the compensable amount of PPE under the 2013 Regulations. Judge Nagalingam’s careful weighing of necessity, relevance, and fair remuneration, while not accommodating the Appellant’s complete claim, acknowledged the need for adequate assessment of the digital evidence pivotal to the accused’s defense. This judgment is a testament to the evolving nature of legal assessments as they intersect with the proliferation of electronic evidence in criminal proceedings.

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