Appeal Committee Ruling 1 of 2022 - R -v- [REDACTED]

GFS Appeals Committee

R-v- [REDACTED] 

Appeal of [REDACTED] 

Introduction

This case falls to be remunerated under the CPS Graduated Fee Scheme E. This case concerns the prosecution of [REDACTED], and relates to the supply of Class A drugs and the production of Class B drugs

Issue in appeal

The issue in this appeal is whether certain electronic material [REDACTED] counts towards the PPE, which determines the level of base fee to be paid to counsel. If it does not, counsel will instead be paid for the reasonable time spent viewing or reading that material, except for any material included in other exhibits which have counted towards the PPE.

Counsel’s position

Counsel submits that the analyst mentioned these four downloads in his report and, because a different officer downloaded these reports and served them, they should be counted as pages. 

CPS position

The CPS believes that the material in question was a selective download [REDACTED] by [REDACTED] (who was not the analyst), who exhibited this material in a statement and was not served as a report by the analyst. The CPS maintain that the WhatsApp material [REDACTED] was exhibited electronic material that should be remunerated as ‘time spent viewing’ rather than pages.

Documentation

The Fees Appeal Committee convened on 18th May 2022 to consider the appeal and considered the following documents before arriving at their decision: 

• GFS Manual of Guidance scheme E
• Taxation note from Counsel 
• Final CPS written reasons 23 February 2022
• List of Exhibits
• Statement from [READCTED]
• Statement from the Analyst

The Committee considered the information advanced by counsel as well as all the other documentation listed above, including the relevant paragraphs of the Manual of Guidance. 

Consideration by the Committee

Under paragraphs 60(b) and 61(g) of Graduated Fee Scheme E (the relevant fee scheme in this case) documentary exhibits count towards the PPE, except where they are excluded by the specific guidance given for electronic material.  That specific guidance is set out in paragraphs 71 to 73.  

Under paragraph 71(a)(v), “documentary exhibits created electronically and individually exhibited” count towards the PPE, unless excluded by paragraphs 71(b) and 72.  Likewise, under paragraph 71(a)(vi), analyst reports relating to telephone data, social media download material or any other type of computer/device download material count towards the PPE, except any such material which is merely exhibited by an analyst, which is excluded by paragraphs 71(b) and 72.

Paragraphs 71(b)(ii) and (iii) refer to “social media material” and “download material”.  Under paragraph 72, that material does not count towards the PPE; instead, paragraph 71(b) provides that counsel are to be paid for the reasonable time spent viewing or reading it.  However, paragraph 73 provides that counsel are not to be paid viewing time for any material which has been included in the PPE.  That is relevant, for example, where the same material is included in different exhibits, some of which count towards the PPE, others of which do not.

Against that background, the central question in this appeal is whether exhibits [REDACTED] amount to social media or download material “merely exhibited” to a report or instead form part of an analyst’s report such that they should count towards the PPE.  If the former, counsel will be paid for the reasonable time spent viewing or reading the material, except where that material is also included in other exhibits that are counted towards the PPE.

Conclusion

Exhibits [REDACTED] were exhibited to the witness statement of [REDACTED] (not the analyst) dated 20 June 2021.  In that statement, there is no substantive analysis of the material contained in the exhibits.  Rather, [REDACTED] merely says that she extracted relevant material from phone downloads and exhibited it.  

Accordingly, as regards [REDACTED] statement, exhibits [REDACTED] amount to social media or download material “merely exhibited” to a report.  [REDACTED} statement does not, therefore, provide a basis for treating exhibits [REDACTED] as counting towards the PPE.

The analyst describes four separate exhibits he created from the wider download material, namely exhibits [REDACTED].  Those exhibits comprise the download material which, in his view, was “relevant to this investigation”.  He draws various conclusions from that material contained in exhibits [REDACTED] and not the more comprehensive exhibits [REDACTED].  The material in the exhibits the analyst created is that which he thought was “relevant to this investigation”

Exhibits [REDACTED] do not count towards the PPE but, in accordance with paragraph 71(b) of the Graduated Fee Scheme, counsel is entitled to payment for the reasonable time spent viewing or reading material contained in those exhibits

Ruling

The committee concluded that Exhibits [REDACTED] do not count towards the number of pages of prosecution evidence (“PPE”).  They are social media or download material “merely exhibited” to a report.  As such, counsel should be paid for the reasonable time spent viewing or reading the material contained in exhibits [REDACTED], except for any such material also included in exhibits [REDACTED] since that material did count towards the PPE.

The Committee dismissed the appeal.