The evolution of PPE: remuneration in a digital age

The definition of “pages of prosecution evidence” (“PPE”) in Schedule 2 of the Criminal Defence Service (Funding) Order 2007 (“the Funding Order”) has evolved over time. There has, of late, been a proliferation of decisions of cost judges on the subject and it is outside the scope of this article to consider them all in detail.

In its original form, the Funding Order did not define the term PPE.

When Litigator Graduated Fees were introduced by SI 2007/3552, a new Schedule 2 was introduced to the Funding Order that, for representation orders granted on or after 14 January 2008, expressly excluded from the definition of PPE “any documents provided on CD-ROM or by other means of electronic communication” (para 1(2)).

SI 2011/2065 broadened the definition of PPE by including documents which previously “existed in paper form and which the prosecution has converted into digital form to enable service by means of electronic communication” (para 2A). This exception applied in proceedings where a representation order was granted on or after 3 October 2011.

Paragraphs 1(2) and (2A) were replaced by SI 2012/750, which applied to proceedings where a representation order was granted on or after 1 April 2012. This SI afforded a discretion to include electronic evidence that had never previously existed in paper form as PPE if “the appropriate officer decides that it would be appropriate to include it…taking into account the nature of the document and any other relevant circumstances” (Para 2C).

In April 2012, “PPE Guidance” was issued by the Legal Services Commission to address the amended definition of PPE. At this time, the LSC’s stated position on determining electronic evidence as PPE in the Guidance was to limit electronic evidence, which had never existed in paper form, to “documentary and pictorial exhibits” that “would previously have been…printed out” (para 5).

R v Napper

The April 2012 PPE Guidance was, in effect, overturned on 4 September 2014 when Costs Judge Simons gave his judgment in R v Napper (Costs) [2014] 5 Costs L.R. 947.  In Napper it was held that, when determining whether electronically-served documents should be included as PPE, the role of the appropriate officer under the Funding Order was much wider than simply to ascertain whether documents had ever existed in paper form, and that he/she was positively required to take into account the nature of the document and all the relevant circumstances (including “whether the evidence is pivotal, whether the evidence underpins the understanding or admissibility of any other piece of evidence, and whether the volume of evidence disrupts the fair and predicted economic balance of the remuneration paid for a case in the light of the Legal Aid Agency's position statement that the statutory changes were not designed to disrupt the status quo“; para 29).

R v Furniss

The scope of whether electronically-served documents should be included as PPE appeared to be significantly broadened in R v Furniss and Ors [2015] 1 Costs L.R. 151. On 21 January 2015, Mr Justice Haddon-Cave delivered a first-instance judgment that made a number of points, including:

• “telephone, text and cell site evidence served by the Prosecution in digital form must now be included in the PPE page count and paid as such” (para 56);
• “Defence advocates should not be put to the time, trouble and expense of bringing costs appeals or required to prove “special preparation” in lieu of the page count. If they are forced to do so, consideration should be given to awarding indemnity costs against the LSC or LAA in respect of the unnecessary appeal hearing in question” (para 56);
• “it is not necessary…to demonstrate that the digital material in question is ‘important’ or ‘central’ to the Prosecution Case. The fact that such material is served by the Prosecution as part of its case means that, ex hypothesi, it is ‘relevant’ and required to be read by the Defence” (para 55);
• “the courts case management powers under CPR extend to ordering the prosecution to include telephone material as part of the PPE to ensure the smooth running of a trial” (para 42);
• The PPE limit of 10,000 is arbitrary, and where the PPE count exceeds 20-30%, the 10,000 threshold must yield and remuneration should be made on the actual PPE (para 57);
• “The problems encountered…appear also to extend to POCA cases. This approach breaches the LSC [April 2012] Guidelines and is not correct. The entire disc is served by Prosecution under s.16. The entire disc is, therefore, deemed to be an exhibit in the case… The entire disc must, therefore, be included in the PPE” (para 41);
• “Inadequate remuneration within a legal aid scheme may breach a defendant’s right to a fair trial under Article 6 ECHR” (para 46).

LAA Guidance

Current guidance from the LSC’s successor does not reflect the position in Furniss, but refers to the decision in Napper. On 5 February 2015 the LAA published the guidance document “Claiming Electronic Evidence as Pages of Prosecution Evidence (PPE) – Supporting Evidence following the Costs Judge decision in R v Napper“. The guidance provides that, when determining claims for whether electronic evidence should be paid as PPE, “the LAA considers that:

1. Whether the document would have been printed by the prosecution and served in paper form prior to 1 April 2012 is a relevant circumstance under paragraph 1(5) of Schedules 1 and 2 to the Regulations that the determining officer will take into account. If the determining officer is able to conclude that the material would have been printed prior to 1 April 2012, it will be counted as PPE for both the litigator and advocate. 


 

2. If the determining officer is unable to make that assessment, the determining officer will take into account ‘any other relevant circumstances’ such as the importance of the evidence to the case, the amount and the nature of the work that was required to be done and by whom, and the extent to which the electronic evidence featured in the case against the defendant.”

R v Manning

In the first-instance judgment of R v Manning & others, unreported, 3 April 2015, HHJ Mansell QC emphasised the fact that the decision in Furniss is not binding on any Crown Court judge, and he pulled no punches in stating that the reasoning behind Mr Justice Haddon Cave’s decision is “flawed for a number of reasons” (para 9). The Learned Judge was firm in his stance that “it is…no part of the function of a trial judge to dictate to the determining officer how fees in any given case should be calculated, or to dictate to the Crown Prosecution Service how to serve their evidence, provided that they serve it” (para 10(ii)).

R v Chilton

The same tribunal who gave the judgment in Napper, namely Costs Judge Simons, decided the case of R v Chilton, unreported, 15 June 2015, SCCO 400/14. In Chilton, the solicitors’ claim for 4,662 pages of electronic evidence consisting of telephonic data had been disallowed by the LAA on the basis that it was “peripheral to the case” against the Defendant and “no evidence had been provided by the solicitors to show that any form of careful analysis of the telephonic evidence was undertaken or that it was pivotal to the case” (para 2). On appeal, Judge Simons directed the LAA to remunerate the solicitors for the additional 4,662 PPE finding that, as a consequence of Furniss, it “is not necessary…to show that the electronically served evidence was pivotal to the case and did not have to be considered in detail” (para 7). No reference to the case of Manning is made within the judgment.

The Bar Council

In August 2015, the Bar Council was invited to intervene in the CACD in a renewed application by Mr Furniss for permission to appeal against conviction. This application was to be heard on 13^th October 2015, and the President had indicated that he would review the PPE ruling of Mr Justice Haddon-Cave, having regard to the recent conflicting authorities. This opportunity for clarification did not materialise, however, as the application for permission to appeal was abandoned.

The Bar Council has recently been invited to make written representations on the issue of PPE in a forthcoming costs appeal on 24 November 2015. Representations have been drafted by Alexandra Healy QC (Co-Chair of the Bar Council Remuneration Committee), and we await the outcome of the hearing with bated breath.