High Court Case Clarifies Page Count for Prosecution Evidence Under Criminal Legal Aid Regulations
Introduction
In the matter of R v Mohammed Ikhlaq, the High Court of Justice’s Senior Courts Costs Office (SCCO) grappled with the intricacies involved in determining appropriate Page Count for Prosecution Evidence (PPE) for the purpose of calculating the litigator’s fee under the Criminal Legal Aid (Remuneration) Regulations 2013. The case revolves around the appeal by Harewood Law solicitors, representing Mohammed Ikhlaq, challenging the number of pages deemed as PPE in regards to the electronic evidence presented, which largely consisted of data extracted from Ikhlaq’s mobile phone.
Key Facts
Mohammed Ikhlaq faced prosecution for money laundering related to the operation of “Wesellallcars.com.” The evidentiary complexities arose from the prosecution’s reliance on a vast amount of digital data, particularly from Ikhlaq’s mobile phone. The defense solicitors, Harewood Law, contended that a larger number of pages of evidence should be accounted for in the PPE calculation. The original determination was based on 4,680 PPE pages, whereas the defense argued for 10,000 pages based on their use of the content in its native UFED format compared to a produced PDF version.
Legal Principles
The determination of PPE is pivotal in ascertaining the litigator’s fee in accordance with the Criminal Legal Aid (Remuneration) Regulations 2013. The case elucidates several crucial legal principles.
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Preference for PDF Format: There is an established preference for using the PDF version of electronic evidence (such as mobile data extractions) when calculating PPE as it replicates a paper page. This underscores the principle that readability and comparability to traditional paper-format evidence are factors when considering electronic evidence as PPE.
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Relevance and Importance: The Regulations mandate the delineation of the relevant parts of electronic evidence served—distinguishing between elements essential to the litigation (e.g., messages, communications, etc.) and those that are not (e.g., technical metadata). What counts towards PPE must require the same level of concentration as physical evidence.
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Proportionality in Image Evidence: Adopting the percentage approach for image evidence — presence of relevant images mixed with non-relevant ones can result in a justifiable percentage of images being counted towards PPE. This is based on the principle that not all served material necessitates substantial legal scrutiny.
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Standard Position of Costs Judges: Precedents emphasize that only the evidence which is central to the case and requires detailed consideration merits inclusion in the PPE count. Material such as technical metadata or content that is merely duplicative may not be included.
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Special Preparation Time: If electronic evidence is deemed served but does not rise to the importance of PPE, practitioners may claim for the time spent reviewing such material under “special preparation” rather than PPE.
Outcomes
While the appeal was successful in part, the Costs Judge Rowley affirmed the principle that the PDF version of electronic evidence should be used for calculating PPE. However, the case deviated from historical norm by directing an increase in the number of images included in the PPE count from a standardized 5% to 30% based on the relevance to the defendant’s case, bumping the PPE count from 4,680 to 6,000 pages.
Conclusion
In conclusion, the R v Mohammed Ikhlaq case underscores the ongoing challenges of assessing PPE with the prevalence of digital evidence. The court’s decision establishes guidance on the assessment of PPE involving digital data, reinforcing the preference for a PDF version but also showing flexibility in assessing the relevance of such evidence to a defendant’s case. The nuanced judgment showcases an instance of judicial discretion being exercised, balancing the fixed standards with the specifics of a given case to ensure fair remuneration under the Criminal Legal Aid Scheme.