One of the delights of having a common law practice at the Bar, is the wide variety of work that you get to undertake in your early years. I have fond memories of my time in the criminal courts: I used to prosecute regulatory offences in the Magistrates Court from time to time, undertake the occasional defence brief and also developed a niche, for a while, in appeals to the Crown Court, particularly where there was a public law defence.
All of this work as well as being part time in nature, was privately paid. I never had to worry too much about Legal Aid or the labyrinthine procedures of getting money out of the Legal Aid agency. There is thus a certain irony that over the years, I have had to venture back into those statutory thickets, in order to advise upon and argue costs appeals in criminal cases, including plumbing the depths (and the depths are very deep) of the graduated fee scheme.
One of the issues that arises with frequency on such appeals is the question of whether material that is served by the Crown in digital form, counts towards the page count of Pages of Prosecution Evidence (PPE). This matters a lot to criminal litigators, because if it does, the fee payable on the case can increase enormously as a formula is used to calculate the fee, of which the amount of PPE is a very important variable; whilst if it does not, the perusal and consideration of such evidence may be paid much less generously as “special preparation”.
The issues that arise and the question of how they should be dealt with when considering what counts, or conversely does not count as PPE, were considered in the case of The Secretary of State for Justice the Lord Chancellor v SVS Solicitors  EWHC 1045 (QB). The law provides as follows:
(2) For the purposes of this Schedule, the number of pages of prosecution evidence served on the court must be determined in accordance with sub-paragraphs (3) to (5).
(3) The number of pages of prosecution 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 […] 7 served prosecution documents or which are included in any notice of additional evidence.
(4) Subject to sub-paragraph (5), a document served by the prosecution in electronic form is included in the number of pages of prosecution evidence.
(5) 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.
As the case of The Secretary of State for Justice the Lord Chancellor v SVS Solicitors  EWHC 1045 (QB) makes clear, the approach taken by the costs assessor should take account of the Crown Court Fee Guidance (for cases before 1st April 2018) appropriate to the date of the representation Order. The guidance at the material time in Appendix noted:
- Some examples of documentary or pictorial exhibits that will ordinarily be counted as PPE are:
– Scene of crime photographs.
– Prosecution analysis carried out on phone data.
– Bank statements.
– Raw phone data where a detailed schedule has been created by the prosecution which is served and relied on and is relevant to the defendant’s case.
– Raw phone data if it is served without a schedule having been created by the prosecution, but the evidence nevertheless remains important to the prosecution case and is relevant to the defendant’s case e.g. it can be shown that a careful analysis had to be carried out on the data in order to dispute the extent of the defendant’s involvement.
– Raw phone data where the case is a conspiracy and the electronic evidence relates to the defendant and co-conspirators with whom the defendant had direct contact.
18. The basic position under the Regulations is that electronically served evidence is not included in the number of pages of prosecution evidence unless the determining officer concludes that it would be appropriate to include the material as PPE. (R v Tunstall SCCO Ref: 220/15) and R v Sana  6 Costs LR 1143).
19. If the determining officer is unable to conclude that the electronic evidence ought to be included within the pages of prosecution evidence it may be remunerated as special preparation.
20. Whether material is properly remunerated as PPE or special preparation will depend on the specific facts of the case. The following costs judge decisions provide some guidance on the distinction between material paid as PPE and material paid as special preparation:
– R v Jalibahodelezhi  4 Costs LR 781: material should be paid as PPE where it is pivotal to the case and requires same degree of consideration as paper evidence.
R v Sibanda (SCCO Ref 227/14): where a defendant is charged with substantive offences telephone data relating to co-defendants is not sufficiently relevant to merit inclusion in the PPE.
R v Sana  6 Costs LR 1143: The Costs Judge held that if some electronic evidence is relevant to the case and some is irrelevant to the case, the nature of the document and the circumstances mean that it is not reasonable to treat the irrelevant material as PPE. However, reasonable time spent considering the material could still be the subject of a claim under the special preparation rules.
– R v T Mahmood and Z Mahmood (SCCO Ref 149/16;155/16 and 185/16): in cases where a telephone report is served it may be appropriate to subdivide a report into its individual sections and allow only the relevant tabs or sections. In particular, there is a distinction between “social material” i.e. audio files, images, photographs, internet history, cookies, installed applications etc that may properly be remunerated as special preparation and telecommunications data i.e. contacts, call history, SMS and other messages which is more likely to be paid as PPE.
– R v Robertson (SCCO Ref 22/17): personal photographs or images contained on a defendant’s telephone are unlikely to merit inclusion within the pages of prosecution evidence.
– R v Yates (SCCO Ref 66/17): in certain cases, it is appropriate to draw a distinction between material directly attributable to the defendant which is integral to the case and should be included in the PPE and material attributable to the co-defendant which is useful only as additional background and therefore payable as special preparation.
It follows that there is a merits based test to be applied by the costs judge, requiring judgment to be exercised on the facts of a particular case, as to whether electronic material should be counted as PPE for remunerative purposes, or only special preparation, which would be available under regulation 20 in the light of the approach demonstrated above.
But many thousands of pounds in fees, can ride upon whether the ever increasing volume of digital material goes into the page count and hence the calculation of the graduated fee payable, or whether the material must still be read, but for much lower fees at the special preparation rate.
The problem for a criminal litigator, is that they simply can’t be sure whether material which must be read, is going to attract the higher fee, until, of course they have read it. In such circumstances, hindsight can be a very costly exercise.