Appeal Committee Ruling 2 of 2021: 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 D and concerned the charges of Possession of a Class A Drugs with Intent to Supply - a category ‘B’ offence for fee purposes.
Issue in appeal
The issue in appeal relates to the uploading of electronic material, in this case telephone and Sim downloads, to the DCS and whether that changes the status of the evidence from “electronic material” to “pages” of evidence.
Counsel and the CPS agree that this material is electronic material, telephone download exhibits MES5 and MES6, and that it was served evidence. The issue in dispute is whether the act of uploading the material onto DCS changes the evidence from electronic material to pages, which in turn changes the remuneration from viewing time paid at the hourly rate to pages of evidence and therefore changing the base fee from the standard rate to the enhanced rate.
Counsel’s position
Counsel submits that the electronic material was served in evidence and that the actual uploading of the telephone download to DCS changed the status of the download material and it became pages of evidence and counsel is therefore entitled to be paid for the material as pages.
CPS position
The CPS maintain that the telephone download remains electronic material and should be remunerated as “reasonable time spent viewing the material at the appropriate GFS hourly rate” in accordance with paragraph 71(b) MOG.
Fees Bulletin 2 of 2018 was issued in August 2018 and relates to evidence held and served electronically and the requests by defence practitioners to provide page count information. At paragraph 3 it states the following:
3. The basic principle is that the method of service and storage of evidence does not change the way that we determine whether evidence can be added to the page count.
The CPS Fee Scheme
The relevant section of the CPS Graduated Fee Scheme Manual of Guidance (MOG) for Scheme D reads as follows:
Electronic Material
71. Evidential material which is produced and served in an electronic format, such as images from a computer copied to disc or documents scanned on to disc, should be dealt with as follows:
a) Witness statements and records of defendant interviews formally served in evidence will always be counted as pages. If paper pages of exhibits are scanned and produced on disc for convenience, they should be counted as pages for the purpose of remunerating the advocate;
b) If, however, electronic media material, such as telephone data and billing, a copy of a computer hard drive or a CCTV recording, is served on disc, the advocate is paid for any reasonable time spent viewing the material at the appropriate GFS hourly rate. The advocate must provide detailed work records of all work undertaken in the case highlighting that work which relates solely to the review of electronic material.
Material that does not qualify as a page under paragraph 71(a), can never be treated as a page even if it is subsequently printed off in to paper format. However, any page that is printed directly from a disc and copied for use by a jury during an effective trial will be added to the page count subject to the principle that the same page will only be counted once.
72. If the advocate is to be paid ‘pages’ because the material served on disc falls in to category 71(a) above, the advocate will not be paid viewing time in addition for consideration of that material on disc.
Consideration by the committee
The Fees Appeal Committee convened to consider the appeal on 9 September 2021 and considered the following documents before arriving at their decision:
GFS Manual of Guidance scheme D
Taxation note from Counsel 20 May 2021
Fee Bulletin 2 of 2018
Final CPS written reasons 23 June 2021
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 and Fees Bulletin 2 of 2018.
It is the view of the Committee that the CPS have interpreted the Guidance correctly in this instance. The material was agreed to be electronic material and the fact that is was uploaded to DCS did not change the status of the material. It is important to focus on the underlying material rather than its form of service. The act of uploading electronic material to DCS or any other storage facility would not change the electronic material into pages for remuneration purposes because DCS is considered a storage device in the same way as a disc.
However, the Fees Appeal Committee recommend that those who complete NAE front sheets follow the clear guidance that already exists to distinguish between material served within paragraph 71(b) of the Guidance and that which does not in order to avoid any confusion or uncertainty and to avoid the issue that arose here occurring again.
Ruling
For reasons outlined above the appeal is dismissed
The Fees Appeal Committee convened to consider the appeal on 9th September 2021