A Summary of Case Law in relation to Pages of Prosecution Evidence (PPE)

May 13, 2020

By Fiona Clancy

Additional research and editing by Julian Goode and Harriet Lavin

In the current climate, it is ever more important to get paid for the work that you carry out in defence of a client’s liberty. The Defence must satisfy their duty to thoroughly interrogate the evidence and unused material to the greatest extent possible. We know that there is also a duty to expedite proceedings and present trials in an efficient way. Where is the line drawn between proper preparation of the defence case and fair remuneration of the efforts taken to consider not only the accuracy of prosecution analysis but important underlying material which may have been omitted or adduced without the proper context?

We hope that in reading this brief summary of some of the main principles at play, it may assist you to substantiate fair claims for remuneration by successfully negotiating the two hurdles to billing PPE:

Hurdle 1 – Getting the Crown or Court to agree

• The evidence must be served and classed as used material – unused material does not count
• The Defence should seek the Prosecution’s agreeement to serve the material as used
• In the absence of agreement, the parties should apply for a ruling from the trial Judge in ample time before trial

Hurdle 2 – Getting the LAA to agree

• The served and used evidence needs to be treated as PPE for billing purposes in accordance with Sched 2 Para 1 of the 2013 Regulations
• This is not the decision of the Trial Judge or Prosecution, it is at the discretion of the Determining Officer to decide whether it is special preparation or PPE
• The Determining Officer will decide whether it is appropriate to include the material as PPE taking into account the nature of the document and any other relevant circumstances

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CASE LAW TO ASSIST WITH HURDLE 1: GETTING THE EVIDENCE ‘SERVED’ AND ‘USED’

The Secretary of State for Justice the Lord Chancellor v SVS Solicitors [2017] EWHC 1045 (QB)

This is a High Court Judgment which is universally cited in costs appeals and continues to be of assistance.

• The High Court applied the case of Lord Chancellor v Edward Hayes LLP [2017] EWHC 138 (QB)
• The High Court quoted Haddon-Cave J in R v Furniss [2015] 1 Costs LR 151 who concluded that the electronic material in that case was integral to the prosecution case and required the defence to review and examine it in detail for the purposes of properly preparing the defence case. The crucial nature of this material to the trial was not in any dispute. That case in particular emphasised forcefully that defence advocates had to check all of the telephone downloads with care if they were to agree to the schedule of calls and other details which the prosecution wished to put before the Jury. He noted that it would have been open to the defence teams to refuse to agree the schedule until all the relevant material had been properly served.
• Holroyde J’s general observations are of assistance. He considered the agreement of schedules and agreed facts in order to reduce masses of evidence to be central to the proper progression of many criminal trials. He also considered it important to bear in mind that the role of defence lawyers is often not confined to checking the accuracy of the summaries of the material which the prosecution has chosen to include. It often extends to also checking the surrounding material to ensure that the schedule does not omit anything which should be properly included in order to present a fair summary of the totality of the evidence and exhibits which are being summarised. Justice Holroyde considered that it may often be necessary to review what has been omitted before being able to agree to the accuracy of that which has been included.
• Whether material is included as PPE will be case-specific. However, it was agreed that it will very often be the case that, where the prosecution rely on part of the data in relation to a mobile phone, and seek agreement of either that data or a summary of that data, fairness will demand that all of the data be exhibited so that the full picture is available to all parties.
• Holroyde J emphasised that the question of whether particular material must be served as evidence should be concluded at first instance by agreement, in so far as is possible, between the Prosecution and Defence.
• If agreement cannot be reached, the trial judge can be asked to make a ruling as to whether the particular material must be served as evidence. The Court has the discretion to hear this argument as part of their case management powers and in considering all the circumstances, either direct the exhibiting of underlying material or decide whether the Crown should present their case without the extracted material on which they seek to rely. However, a trial judge may decline to exercise that power and refuse to hear an application.
• Holroyde J went on to state that in exceptional circumstances, if the defence were unable to get a ruling by the trial judge then the Determining Officer (or on appeal, the Costs Judge) would have to determine the issue.
• Holroyde J held that the “view initially taken by the prosecution as to the status of the material will be a very important consideration, and will often be decisive, but is not necessarily so: if in reality the material was of central importance to the trial (and not merely helpful to the defence), the Determining Officer (or Costs Judge) would be entitled to conclude that it was in fact served, and that the absence of formal service should not affect its inclusion in the PPE. Again, this will be a case‐ specific decision. In making that decision, the Determining Officer (or Costs Judge) would be entitled to regard the failure of the parties to reach any agreement, or to seek a ruling from the trial judge, as a powerful indication that the prosecution’s initial view as to the status of the material was correct. If the Determining Officer (or Costs Judge) is unable to conclude that material was in fact served, then it must be treated as unused material, even if it was important to the defence”.
• The High Court went on to state that it is sometimes possible for the prosecution to
  sub-divide an exhibit and serve only part of it, on which they rely. For instance, when the defendant has only used a specific messages platform in relation to the offence. The High Court noted that this situation will not arise very often because often fairness may demand that the whole of the data be served, for instance in order to enable the defence to see what other use the defendant was making of his phone around the times of calls which are important to the prosecution case.
• In further guidance, Holroyde J urged the defence litigator or advocate to raise any issue as to PPE status at trial and ensure it is recorded in an appropriate notice, rather than leaving the matter to be determined at a later stage by the Determining Officer or Costs Judge. Any fresh evidence on the classification of PPE should be adduced as soon as possible. Failure to do so could lead to sanctions or costs.
• NB: The importance of resolving matters at trial is further confirmed because an appeal could delay payment for a significant number of months following conclusion of a trial.

Lord Chancellor v Edward Hayes LLP [2017] EWHC 138 (QB)

• Nicola Davies J noted that the prosecution relied on a schedule of text messages which were at the core of the Crown’s case. She said, at para 20 of her judgment:
• “Given the importance of the evidence it is unsurprising that the defence refused to agree to admission of the extracted data until it was able to examine all the data on the download. This was the defence application to the trial judge which he granted. The request was not only reasonable, it enabled the defendant’s legal team to properly fulfil its duty to the defendant. It enabled the defendant’s legal representatives to satisfy themselves of the veracity of the extracted data and to place the same in a context having examined and considered the surrounding and/or underlying data. It also enabled the defendant’s legal team to extract any communications which they deemed to be relevant. Given the importance of the extracted material to the Crown’s case and resultant duty upon the defendant’s team to satisfy itself of the veracity and context of the same I am satisfied that this was additional evidence which should have been accompanied by a Notice in the prescribed form”.
• “I make those general observations because it seems to me that difficulty has arisen in the present case because both the CPS and the determining officer assumed that only the evidence and exhibits on which the prosecution rely can ever be “served”, and that “served” evidence is necessarily identical to the evidence and exhibits on which the prosecution rely. Sometimes that will be so; but it is in my judgment a mistake to think that it will always be so. It is frequently the case that the prosecution evidence and exhibits include material which cannot realistically be said to be “relied upon” by the prosecution, for example because it is an irrelevant part of a statement or exhibit which also contains relevant material, or because it is a part of the material which is inconsistent with the way the prosecution case is put but is necessarily included in order to be fair to the defence”.

Joshua Conroy and Others, HHJ Gittins sitting at Teesside Crown Court, 24 September 2018

Whilst this is a Crown Court ruling on the service of telephone data and does not have the same authority as the above two cases, it is still useful and is contrary to the frequently cited decision MA, Unreported, Leeds Crown Court 18 April 2018:

• “Every case with regard to the issue of digital evidence must be determined upon its own facts.”
• “There have been clear concerns in other cases that the Defence sought to secure service of such data to simply unlock countless pages of additional evidence, rather than to test that the prosecution case is properly founded or to ensure the defence is properly prepared and put, in accordance with instructions.”
• “The Defendant’s clear instructions to challenge all aspects of the telephone evidence meant it was incumbent upon Defence Counsel to properly check the accuracy and veracity of the evidence relied upon by the Crown.”
• “I acknowledge at once the detailed judgement of HHJ Collier QC in the case of MA and the concerns he raised about the requirement for service of digital material as evidence, which will often run to many hundreds of pages that will be completely irrelevant to any issue in the case, even where the telephone evidence is challenged. But it is not the fault of defence practitioners that such material is necessary to be checked or considered and is not easily separated from the remainder. In that sense, I disagree with HHJ Collier’s assessment of that underlying information as ‘unused material’ that, in fairness, need only be provided as disclosure. It is ‘used material’ in the sense that the Officers have been unable to present their analysis without it or at least, a proportion of it.”

• “Of course, it may be open to the Prosecution, in certain cases, to provide the raw data in limited parameters that more closely mirrors the material they have used in their analysis. That may be the case if it is one or two days or incidents. I suspect that in a case such as this one, where there are numerous days and a wide span of dates that are to be relied upon, that exercise of extracting the reasonable proportion of the data would be more time consuming than is worthwhile for the Police to undertake and the simpler course is to serve the entirety of the network data. But that is a matter for the Prosecution to ensure that they have provided the material and with sufficient breadth to provide context.”

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CASE LAW TO ASSIST WITH SURMOUNTING HURDLE 2 – THE LAA

Schedule 2 Paragraph 20 of the Criminal Legal Aid (Renumeration) Regulations 2013 provides the second hurdle:

A documentary or pictorial exhibit which (a) has been served by the prosecution in electronic form; and (b) has never existed in paper form is not included within the number of pages of prosecution evidence unless the appropriate officer decides that it would be appropriate to include it in the pages of prosecution evidence taking into account the nature of the document and any other relevant circumstances.

R v Jalibahodelezhi [2014] 4 Costs LR 781

This case was heard before Costs Judge Gordon-Saker.

The LAA argued that because the evidence had only ever existed in electronic format, it could not be remunerated as PPE.

This case concerned material on discs consisting largely of telephone evidence used by the prosecution to connect the defendant to imported drugs. This was the evidence exhibited by the forensic investigator instructed by the prosecution. This evidence had been clearly served and the discs were exhibited.

Judge Gordon Saker observed that “my view is this is the sort of evidence which would previously have been served in paper format. Following [the Agency’s] own guidance it should have been included in the page count”.

While that was enough to decide this appeal in the solicitors’ favour, the Judge added commentary which is capable of assisting and undermining some defence applications:

“So in a case where, for example, thousands of pages of raw telephone data have been served and the task of the defence lawyers is simply to see whether their client’s mobile phone number appears anywhere (a task more easily done by electronic search), it would be difficult to conclude that the pages should be treated as part of the page count.

Where however the evidence served electronically is an important part of the prosecution case, it would be difficult to conclude that the pages should not be treated as part of the page count”.

Claims for payment for considering documents which have been served electronically but have never existed in paper form, should be treated as Pages of Prosecution Evidence if they require a similar degree of consideration to evidence served on paper

Regina v Napper [2014] SCCO 160/14

The Determining Officer must consider whether the evidence is pivotal; whether the evidence underpins the understanding or admissibility of any other piece of evidence.

The wording of the Regulation is quite clear. If the electronically served evidence had previously existed in paper form, then it can be included as PPE.

The Judge was satisfied from the nature of the documents and all of the other circumstances that it was appropriate that the pages of digitally served evidence should be included as PPE.

However, note that one of the circumstances that the Judge considered was whether there had been duplication of this work by the Litigator and the Advocate. The solicitors had not satisfied the Judge that there had been no duplication between Advocate and Litigator and consequently it was not appropriate for both the Advocate and the Litigator to make a claim for PPE. Accordingly, the appeal made by the litigator succeeded. The appeal by the Advocate did not succeed.

We hope that the above summary assists. Further relevant non-binding case law on PPE costs can be found as below:

King, SCCO 170/19, 15 November 2019

Mooney, SCCO, 99/2018, 28 May 2019

Daugintis, SCCO 154/127, 155/17 and 177/17, 7 January 2018

R v T Mahmood and Z Mahmood (SCCO Ref 149/15; 155/16 and 185/16), 16 March 2017