R v Azam

1. This appeal concerns a claim for payment under Schedule 1 to the Criminal Legal Aid (Remuneration) Regulations 2013. The relevant Representation Order was made on 19 July 2022. The 2013 Regulations apply (and shall be referred to in this judgment) as in force on that date.

2. Defence advocates such as the Appellant are paid for their work by reference to the Graduated Fee provisions of Schedule

1. The Graduated Fee due is calculated, along with other factors, by reference to the number of served Pages of Prosecution Evidence (“PPE”). The PPE count is subject to a cap (which in this case is 700 pages) but it is open to advocates, in addition to the Graduated Fee calculated by reference to the PPE count, to claim an additional payment for “special preparation.”

3. The definition of “pages of prosecution evidence” (“PPE”) is to be found at paragraph 1, subparagraphs (2)-(5) of Schedule 1: (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 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.”

4. The special preparation provisions are to be found at paragraph 17 of Schedule

1. Insofar as pertinent for the purposes of this appeal, they read as follows: “17.— Fees for special preparation (1) This paragraph applies where, in any case on indictment in the Crown Court in respect of which a graduated fee is payable… … (b)  the number of pages of prosecution evidence, as defined and determined in accordance with paragraph 1(2) to (5), exceeds… …(bi) in cases falling within bands 3.1 to 3.5 (serious violence), 700…  …and the appropriate officer considers it reasonable to make a payment in excess of the graduated fee payable under this Schedule. (2) Where this paragraph applies, a special preparation fee may be paid, in addition to the graduated fee… (3) The amount of the special preparation fee must be calculated… where sub-paragraph (1)(b) applies, from the number of hours which the appropriate officer considers reasonable to read the excess pages… using the hourly fee rates set out in the table following paragraph 24… (5) A trial advocate claiming a special preparation fee must supply such information and documents as may be required by the appropriate officer in support of the claim. (6) In determining a claim under this paragraph, the appropriate officer must take into account all the relevant circumstances of the case, including, where special preparation work has been undertaken by more than one advocate, the benefit of such work to the trial advocate.”

5. The subject of this appeal is a claim for special preparation, claimed by the Appellant at 85.5 hours and allowed by the Legal Aid Agency’s Determining Officer at 36 hours. The Background and the Served Evidence

6. The Appellant represented Salma Azam (“the Defendant”) in the Crown Court at Leeds. The Defendant was indicted on three counts of attempted murder of her young children. On 11 August 2023 the Defendant pleaded guilty to all three counts on the indictment.

7. There remained significant disagreement between prosecution and defence as to the responsibility and culpability of the Defendant. Among the factual issues to be resolved were whether the Defendant had been culpable in failing to seek medical intervention (or the level of medical intervention she had sought) prior to her offences; the psychiatric symptoms suffered by the Defendant at the time; the presentation of the Defendant and her behaviour at various stages of her life including before, during and after the offences; the behaviour of the Defendant during and after the offences (including whilst on remand at a secure hospital); and conversations SA was said to have had pre-offending and post-offending relevant to her understanding, insight and future risk.

8. From 1 February 2024, the court heard factual and expert evidence on those issues. There were a number of hearings, with witnesses cross-examined. On 3 July 2024 the Defendant was sentenced by Mrs Justice Lambert to a total of 10 years and 8 months imprisonment (a section 45A Mental Health Act 1983 Hybrid Order).

9. The Appellant says that there were 354 pages of non-electronic PPE: the Determining Officer’s count appears to be 347 pages, but the difference is not material for present purposes.

10. The Appellant also received, by way of service, a telephone download report in spreadsheet format with a “print preview” page count of 174,105 pages (the Appellant’s count). The Appellant’s special preparation claim is based upon his review of the chats and emails sections of that report (by his count, 4,797 pages and 6,864 pages respectively), both of which were quite clearly of sufficient evidential importance to justify inclusion within the PPE (see Lord Chancellor v SVS Solicitors [2017] EWHC 1045 (QB) for the relevant test).

11. It is common ground that the 700 page PPE limit was substantially exceeded and that a special preparation claim is justified.

12. The Determining Officer, having reviewed the report, accepted (rightly, in my view) that this was not a case in which time could have been saved by the use of electronic searching methods. It would have been incumbent upon the Appellant to review the entirety of the contents of the chats and emails sections from the download report. The Determining Officer was however concerned at the fact that the Appellant’s worklog, produced in support of the claim, referred not only to reading the contents of the chats and emails sections, but “assessing the relevance to the issues in the case".

13. The Determining Officer bore in mind a number of Costs Judge decisions emphasising that on the wording of paragraph 17(3) of Schedule 1, a special preparation fee must be calculated by reference only to the time needed to read the PPE, and not to additional work, for example preparing schedules.

14. Those decisions include one of my own, R v Swaby (SCCO 228/18, 21 May 2019), and the decisions of Costs Judges Whalan and Brown in R v Starynskyj (SCCO 93/16, 27 April 2017) and R v Bhatti (SCCO 33/18, 18 June 2018).

15. In R v Swaby I took the view that cross-referencing to other evidence fell outside the scope of paragraph 17(3) and so could not found a claim for special preparation. In R v Khaliq [2022] EWHC 2663 (SCCO), referred to by the Appellant, Costs Judge Nagalingam accepted the logic of R v Swaby but on the facts of that particular case, found that cross-referencing was an inseparable part of the reading process and in consequence fell within the scope of paragraph 17(3).

16. The Appellant’s case is, similarly, that the assessment of the relevance of what he was reading was an inseparable part of the reading process. Conclusions

17. A page count derived from spreadsheet print previews is, as a basis for assessing time spent on reading it, notoriously unreliable, including as it tends to do a large number of “pages” containing minimal or no relevant information.

18. In R v Rimon Ali [2024] EWHC 1699 (SCCO) I approved of, and adopted, a Determining Officer’s method of deriving a more reliable page count from a download report in spreadsheet format by eliminating completely blank columns in the relevant sections before generating a print preview.

19. I applied the same method to a spreadsheet copy of the telephone download report from this case, supplied to me by the Appellant. This produced a page count for the chats section of 1484 pages (portrait format) or 1430 pages (landscape format), and for the emails section of 5733 pages (portrait format) or 6485 pages (landscape format).

20. In short, even having removed all empty columns and adopted the lower of two alternative page counts, it seems fair to adopt a page count of 7,163 pages for the evidence with which the Appellant had to contain in the chats and emails sections of the download report. That brings the PPE in excess of the limit of 700 to approximately 6,800 pages.

21. The evidence I have seen has not allowed me fully to understand the Determining Officer’s methodology. It is clear that on assessing the claim, she made allowance for the large volume of blank, or partly blank, pages in the download report, and that she assumed that about 50% of the time claimed by the Appellant was spent on work that fell outside the scope of paragraph 17(3). It still not entirely clear to me whether her allowance of 36 hours represents a straightforward calculation of a reasonable amount of time for reading at the PPE, or that she assessed the work described in the Appellant’s worklog at 72 hours and allowed 50% of it.

22. Either way, I have come to a different conclusion.

23. The words “assessing the relevance to the issues in the case" in the Appellant’s worklog could (as the Appellant contends) describe consideration of what is being read, as an innate part of the reading process, or (as the Determining Office concluded) a separate exercise of evidential analysis, which would properly be regarded as general trial preparation, following outside the scope of paragraph17(3).

24. I have fallen back on a cross-check which I have found useful on similar appeals. Whilst special preparation claims (based as they must be upon time reasonably spent) are not based on an allowance of time per page, calculating the minutes claimed per page can offer a useful cross-check and put such claims in perspective.

25. A claim of 85.5 hours (5,130 minutes) for reviewing approximately 6,800 PPE in excess of the specified limit is less than one minute per page. That is consistent with reading, not additional analysis. It would seem to follow that the words “assessing the relevance to the issues in the case" in the Appellant’s worklog describe the evaluation of what he was reading, as an innate part of the reading process, rather than a separate exercise of evidential analysis.

26. For those reasons, this appeal succeeds in full.