R v Umal [2025] EWHC 1103 (SCCO)

[2025] EWHC 1103 (SCCO)Case No 06KK0497921SCCO Reference: SC-2024-CRI-000151
IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE
Thomas More Building
Venue Royal Courts of JusticeDate 7 May 2025
London, WC2A 2LL
Before
COSTS JUDGE LEONARDRvUMALJudgment on Appeal under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013Appellant: Maguires SolicitorsThe appeal has been successful (in part) for the reasons set out below.The appropriate additional payment, to which should be added the sum of £500 (exclusive of VAT) for costs and the £100 paid on appeal, should accordingly be made to the Applicant.COSTS JUDGE LEONARD
Between
UmalDefendantRCrown
[1]This appeal from the Legal Aid Agency (“LAA”)’s Determining Officer concerns payment to defence solicitors, pursuant to the Criminal Legal Aid (Remuneration) Regulations 2013, under the provisions of the Litigators’ Graduated Fee Scheme set out at Schedule 2. The Representation Order was made on 16 November 2022 and the 2013 Regulations apply as in effect on that date.[2]A fee is due to the Appellant for each case undertaken by the Appellant. Paragraph 1 of Schedule 2 defines a case, for present purposes, as:
“… proceedings in the Crown Court against any one assisted person… on one or more counts of a single indictment…”
[3]The fee due for each case is calculated, along with other factors, by reference to the number of served Pages of Crown Evidence (“PPE”). The issue on this appeal is the appropriate PPE count.[4]The relevant provisions of Schedule 2 for calculating the PPE count are at paragraph 1, subsections (2)-(5), which explain how, for payment purposes, the number of pages of PPE is to be calculated: “(2) For the purposes of this Schedule, the number of pages of Crown evidence served on the court must be determined in accordance with sub-paragraphs (3) to (5). (3) The number of pages of Crown evidence includes all—(a) witness statements;(b) documentary and pictorial exhibits;(c) records of interviews with the assisted person; and(d) records of interviews with other defendants, which form part of the committal or served Crown documents or which are included in any notice of additional evidence. (4) Subject to sub-paragraph (5), a document served by the Crown in electronic form is included in the number of pages of Crown evidence.

(b) has never existed in paper form,

[5]The PPE count is subject to a cap, which for present purposes is 10,000 pages.[6]Paragraph 20 of Schedule 2 allows for a “special preparation” claim to be made for electronic evidence excluded from the PPE count:
“(1) This paragraph applies in any case on indictment in the Crown Court…where a documentary or pictorial exhibit is served by the Crown in electronic form and— (i) the exhibit has never existed in paper form; and (ii) the appropriate officer does not consider it appropriate to include the exhibit in the pages of Crown evidence… (2) Where this paragraph applies, a special preparation fee may be paid… calculated from the number of hours which the appropriate officer considers reasonable… to view the Crown evidence… using the rates specified in the table following paragraph 27…”

Key Authorities on the Inclusion of Electronic Data Within the PPE

[7]By virtue of paragraph 1(5) of Schedule 2 to the 2013 Regulations, served electronic evidence which has never existed in paper form may be included in, or excluded from, the PPE count as the Determining Officer considers appropriate.[8]In Lord Chancellor v SVS Solicitors [2017] EWHC 1045 (QB) Holroyde J (as he then was) gave guidance as to how that discretion should be exercised. At paragraph 50(viii) of his judgment he identified the key criterion: whether the evidence was of central importance to the trial (and not merely helpful or even important to the defence).[9]At paragraph 50(vii) Holroyde J explained that where the prosecution seeks to rely on only part of the electronic data recovered from a particular source, issues may arise as to whether all of the data should be included in the PPE count. The resolution of such issues will depend on the circumstances of the particular case, and on whether the data which have been exhibited can only fairly be considered in the light of the totality of the data.[10]Holroyde J also mentioned the observations of Costs Judge Gordon-Saker in R v Jalibaghodelehzi [2014] 4 Costs LR 781, in which (referring to similar provisions in the Criminal Defence Service (Funding) Order 2007) the Costs Judge said, at paragraph 11:
“The Funding Order requires the Agency to consider whether it is appropriate to include evidence which has only ever existed electronically “taking into account the nature of the document and any other relevant circumstances”
. Had it been intended to limit those circumstances only to the issue of whether the evidence would previously have been served in paper format, the Funding Order could easily so have provided. It seems to me that the more obvious intention of the Funding Order is that documents which are served electronically and 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…”[11]In Lord Chancellor v Edward Hayes LLP & Anor [2017] EWHC 138 (QB) Mrs Justice Nicola Davies DBE (as she then was) concluded that, given the importance to the prosecution in that particular case of text messages, it was incumbent upon the defence team to look at all the underlying data from which the prosecution had extracted samples upon which it relied. The defence needed to test the veracity of text messages, to assess the context in which they were sent, to extrapolate any data that was relevant to the messages relied on by the Crown, and to check the accuracy of the data finally relied on by the Crown. The underlying data should accordingly (although never formally served) be included within the PPE count.[12]Hayes indicates that where key prosecution evidence is extracted from a particular category of electronic data, one would generally expect all of the electronic evidence in that category (in Hayes, messaging data) to be included within the PPE count.[13]Every case will however (as Holroyde J observed in Lord Chancellor v SVS)turn on its own facts. Mobile telephone download reports tend to incorporate huge volumes of patently irrelevant images which can be scanned through at speed, but among which a relatively small number of relevant images may be found. In such cases Cost Judges have, in decisions such as R v Sereika (SCCO 168/13, 12 December 2018), taken the pragmatic approach, of allowing an appropriate percentage of the full body of image data. That approach was approved by Cotter J in The Lord Chancellor v Lam & Meerbux Solicitors [2023] EWHC 1186 (KB), referred to further below.

The Background

[14]The Appellant represented Jama Umal (“the Defendant”) before the Crown Court at Bolton. The Defendant had been arrested in November 2021. At the time of his arrest he had been in the driving seat of a car which was found to contain substantial amounts of cash and drugs. He was charged with two counts of supplying Class A drugs between January 2019 and 19 November 2021.[15]The evidence relied upon by the Crown against the Defendant included extracts from two PDF download reports extracted from two mobile telephones (PRT/1 and PRT/2) seized from the Defendant upon his arrest and of which he admitted ownership.[16]I am advised by the Appellant that at the beginning of the Defendant’s Trial, the defence applied to exclude any reference to the circumstances of his arrest. The Crown conceded the point and the case proceeded on the evidence retrieved from his phones.[17]I have seen a Prosecution witness statement dated 6 July 2022 from DC Melanie King, described as an expert in drug trafficking. DC King’s statement refers to the quantities and value of the drugs seized at the time of the Defendant’s arrest. It refers to and exhibits copies of messages from PRT/1 and copies of notes and messages from PRT/2.[18]DC King’s statement gives page references for the copy messages and notes exhibited to it. They did not match the correct pages in the download reports from PRT/1 and PRT/2 supplied to the Appellant. This, I understand, was queried by the Appellant on multiple occasions without receiving an explanation until two days before trial.[19]That explanation came in a witness statement dated 12 March 2024 from PC Trecarichi, who explains that when he took over the case in September 2022, the telephone download reports for PRT/1 and PRT/2 could not be found. He had to ask for further copies from the “mobile data unit”, and he supplied those to the Appellant. The content of the reports supplied to the Appellant is the same as those referred to by DC King, but the page order and page numbering is different, so DC King’s page references are of no use.[20]PC Trecarichi’s statement is followed, in the hearing bundle produced for this appeal, by telephone attribution documents PRT/7 (produced for PRT/2) and PRT/8 (produced for PRT/1), apparently extracted from the original phone reports before they were lost.[21]They are in turn followed by, from PRT/2, four pictures of the Defendant, alone and together with others charged with possession, or possession with intent to supply, Class A drugs; two photographs of driving licences, belonging to the Defendant and another person charged with possession with intent to supply class A drugs; a page of notes which appears to be a “debtors list”; a photograph of what also appears to be a “debtors list”; and copy messages.[22]The bundle continues with, from PRT/1, two photographs of the Defendant, alone and with another person charged with possession with intent to supply Task A drugs and messaging and call data.[23]It is not entirely clear to me whether these documents were formally exhibited to PC Trecarichi’s statement, but evidently they were all relied upon by the Crown.

The Appellant’s Claim

[24]The Appellant submitted a claim on 11 September 2024 for a fee appropriate to a 6-day trial with a PPE count of over 10,000. The Determining Officer assessed the claim on the basis of 4,204 PPE (a reference in his written reasons to an allowance of 5,750 PPE appears to be a typographical error).[25]The Determining Officer’s PPE count included 737 paper pages. His electronic PPE allowance broke down as follows. From PRT/1, he allowed 993 pages of call logs, chats (social media messages) and where she sang of and contacts, and one page of notes, totalling 994 pages. From PRT/2, he allowed 126 pages of call logs, 2,346 pages of chats and contacts and one page of notes, totalling 2473 pages.[26]The Determining Officer concluded that the images section of each download report did not appear to be of central importance to the prosecution case. The Appellant’s claim for the inclusion of the timeline was refused on the basis that the timeline duplicates the data in the other sections of the report which have already been included within the PPE (and provide a full picture of the data.

The Appellant’s Submissions

[27]The Appellant argues that from PRT/1, 6,977 pages out of a total of 23,120 justify inclusion in the PPE. These comprise Summary and Device information (2 pages); 50% of 4,627 pages of images (2,313 pages), claimed “in view of the reliance placed upon images and the unusual circumstances”; Contacts (182 pages); Chats (691 pages); Call log (120 pages); Emails (22 pages); Instant messages (97 pages); Timeline (3,245 pages); and Web History (305 pages).[28]From PRT/2, the Appellant maintains that 15,408 out of 19,159 pages justify inclusion in the PPE. These comprise Summary and device information (2 pages); Autofill (268 pages); Call log (126 pages); 50% of 6,559 pages of images (3,279 pages); Documents (19 pages); Emails 241 pages); Notes (1 page); Chats (2,170 pages); Contacts (175 pages); Instant messages (59 pages); Network usages (1143 pages); Web History (3,842 pages); and Timeline (4,083 pages).[29]The Appellant argues that a high percentage of images should be included within the PPE. Although the Crown relied heavily upon the Defendant’s communications it also relied upon his association with known drug dealers and his lifestyle generally. A great deal of reliance was placed upon images of the accused in company with individuals as well as his association with property and the suggestion that he has a luxurious lifestyle funded by criminality.[30]The Defendant’s case was that he ran a barber’s shop and bought and sold cars as a sideline. His explanation for internet usage on his phone where he is searching for vehicles was not evidence of a lavish lifestyle but rather of that entirely legitimate income producing stream. This also explained the number of mages of cars on his phone.[31]The provision to the defence of different documents to those from which the Crown had extracted its material and upon which they had invited opinion from DC King also represents a ‘relevant circumstance’ that ought to be taken into account in favour of including the additional sections of the downloads as PPE, in particular bearing in mind the need to confirm that the data relied upon by the Crown was consistent with its source. The sections of the download reports to which the defence were mistakenly directed by incorrect page references should be included within the PPE. This incorrect page referencing caused the Appellant to undertake significant additional work.[32]Once the Crown concentrated its case on his communications and associations, it became apparent that, in many instances, the Defendant had not replied to messages received from alleged criminal associates. The Crown suggested the reason for this was his forensic awareness of the risk of messaging being used against him, so that he chose to speak on the phone rather than to send messages. In order to illustrate this the Crown relied heavily upon the timeline sections of both download reports to demonstrate a pattern of calls which was consistent with him engaging with his criminal associates. This was not apparent from the messaging section or call log when looked at in isolation.[33]The Appellant concedes that the timeline arranges chronologically and so duplicates data elsewhere in the PDF report and that it would not, in most cases, be included in the PPE. The Crown however had relied upon different downloads from those later served on the defence and did not produce a sequence of events document.[34]In those exceptional circumstances the timeline within each download assisted the defence in piecing together the source of the evidence against the Defendant. It was necessary to consider and cross reference material from all relevant sections, including the timelines. That included relevant material which was not available anywhere else on the phone because of deletions. This justifies the inclusion of the timeline within the PPE.

The Respondent’s Submissions

[35]Mr Edozie for the Lord Chancellor submits that the starting point under paragraph 1(5) of Schedule 2 of the 2013 Regulations is that electronic evidence is not to be included in the PPE count. It can be included in the proper exercise of the Determining Officer’s discretion, but Holroyde J emphasised at paragraph 50(ix) of his judgment in Lord Chancellor v SVS, that discretion must be exercised in order to ensure that public funds are not expended inappropriately.[36]Cotter J, in Lord Chancellor v Lam and Meerbux, stated that the word “inappropriately” was intended to cover circumstances of significant overpayment, such as payment for consideration of pages of an exhibit that required no consideration at all. The “lodestar” of the assessment, he said, is to ensure adequate remuneration and to avoid either underpayment or overpayment.[37]It is for the Appellant (R v Jalibaghodelehzi and R v Lawrence [2022] EWHC 3355 (SCCO)) to show that the evidence relied upon to establish was relevant and needed to be considered closely, as opposed to being material that only required a glance.[38]With regard to the Timeline, Mr Edozie refers to the decision of Costs Judge Brown in R v Roberts [2023] EWHC 2197 (SCCO). The timeline, even if it shows the dates and times of various activities and even details of messages, essentially duplicates material that, insofar as relevant, will be allowed elsewhere. It is no more than a consolidation of material found in other sections, placed in chronological order. It is not appropriate to make an additional PPE allowance for material that is essentially duplicated. To do so would he submits distort the proper operation of the Graduate Fee scheme at Schedule 2.[39]Mr Edozie concedes, for the purposes of the appeal, an allowance of 5% of pages of images from each download. On the basis that (on the available evidence) very few images were actually relied upon, he argues that that is a reasonable allowance.[40]Beyond that, Mr Edozie submits that any additional work imposed upon the Appellant by poor preparation on the part of the Crown could be the subject of a special preparation claim. It cannot justify including within the PPE evidence that does not meet the established criteria.

Conclusions

[41]Mr Edozie’s summary of the authorities on the appropriate exercise of a Determining Officer’s discretion as to the allowance of electronic evidence within the PPE, seems to me to be apt. One must strike a proper balance. That requires the exclusion from the PPE count of electronic evidence which is duplicative or otherwise of no material evidential value.[42]Applying the established principles to which I have referred, this is my reasoning on the appeal.[43]Because mobile telephone download reports contain absolutely everything extracted from the relevant mobile telephone the great majority of the material in those reports will typically have little or no evidential significance.[44]PDF telephone download reports are normally (as in this case) clearly divided into discrete, clearly identified sections such as messaging, images or metadata. It is, accordingly, possible for a legal representative to focus on those sections that are important to the case and to give little or no consideration to those that are not. The distinction will be readily apparent to any competent practitioner.[45]For the reasons I have already given, if the Prosecution in any given case has relied upon extracts from a particular category of data within a download report such as messaging or images, then it will generally be appropriate to allow within the PPE count the whole of the relevant section (as tends to be the case with messaging) or, on a broad-brush basis if necessary, an appropriate percentage of it (as tends to be the case with images).[46]The statement of DC King refers to messaging evidence and notes from the download reports. Assuming that any given page reference refers to the wrong section of a download report, the obvious response is not to spend time examining irrelevant data in the wrong section of the report but to refer to the right section or sections, which will be readily identifiable.[47]If the entirety of the correct section or sections is already included within the PPE (which, in accordance with Hayes, reflects the understanding that the legal representative will consider the prosecution evidence in the context of every message within those sections) there is no logical basis for making any greater allowance.[48]In the download reports for PRT/1 and PRT/2, messages are to be found in the chats and instant messaging sections. DC King’s statement gives incorrect page references for the messages referred to by her, and does not otherwise identify their source. It would have been necessary, accordingly, for the Appellant to check the messaging extracts referred to in DC King’s statement against both the chat sections and the instant messaging sections of each download report.[49]The Determining Officer has allowed in their entirety the chat sections from the two download reports, but not the instant messaging sections. It seems to me, for the reasons I have given, that it is appropriate to add to the PPE count the instant messaging sections from both reports.[50]My own review of the download reports indicates that whilst I can agree with the Appellant’s page count for the instant messaging section of PR/1 (97 pages), the correct count for the instant messaging section in PR/2 is 78 pages (rather than the Appellant’s 59). The appropriate additional PPE for instant messaging would, accordingly, be 175 pages.[51]With regard to images, I have found nothing to substantiate the proposition that the Crown relied extensively upon “lifestyle” images. I have seen only a small number of images associating the Defendant with others allegedly involved in drug dealing. For that reason, the 5% allowance conceded by Mr Edozie seems to me to be entirely reasonable.[52]I would however add the four pages of attribution data referred to by PC Trecarichi, which appears to be relied upon to help establish the evidential link between PR/1, PR/2 and the download reports supplied to the Appellant.[53]As for the timeline, to the extent that it includes evidence that belongs within the PPE, it merely duplicates (as Mr Edozie says) what has already been allowed for from other sections of the report. There is nothing in the timeline that adds to that evidence: it just puts it into chronological order. The decision of Costs Judge Brown in R v Roberts is one of a long line of decisions (including my own) in which Costs Judges have refused to add a timeline to the PPE for that reason.[54]I am unaware of any basis for the proposition that the timeline could in this case have added anything pertinent in relation to deleted messages, nor any idea of the additional PPE that might have been allowed if it had. Nor can I see how the incorrect page references in the witness statement of DC King have any bearing.[55]As for the other sections of the reports which the Appellant says should be included within the PPE, I can find no basis for concluding that they were in any way central to the case.[56]In summary, in addition to the 4,204 PPE assessed by the Determining Officer I would add 175 pages of instant messaging data, 4 pages of attribution data and 560 pages of images, giving a total PPE count of 4,943. The appeal succeeds to that extent.[57]From what Mr Edozie says I take it that the LAA would also consider a late special preparation claim, but that is not a matter for me.