Articles Criminal Defence 1st Jul 2015

The Impact Of The Recent Case Of Manning On The Page Count Battle

With increasing amounts of prosecution evidence now served only on disc practitioners will be familiar with the tedious but financially important battle often required with the CPS to have certain categories of evidence, most commonly mobile phone and computer downloads, included in the page count. For an all too brief period the answer to an unreasonable refusal from the CPS not to include this prosecution evidence served in digital form on the PPE cover sheet was to seek, or threaten, an order from the trial judge requiring that they do so.

The order was founded on an application relying on the approach adopted by Mr Justice Hadden-Cave in R v Furniss & others [2015] EW Misc 21/1/15. As many readers will know in Furniss the Court expressly considered the position where digital material was used extensively during a trial but not properly identified as served material. The conclusion of the court was that “Where ‘cell site’, telephone and similar material is served by the Prosecution upon the Defence in digital form, such material must be included as PPE for Graduated Fees Purposes, and payment made to Defence advocates on that basis.” The Costs Court subsequently considered itself bound by the decision (R v Thompson SCCO 325/14).

In the recent case of R v Manning (3rd April 2015 Manchester Crown Court) HHJ Mansell QC revisited the issue. At an earlier stage in the case the judge had ordered that the prosecution serve in evidence telephone data on which the prosecution was largely based and the material was subsequently served on disc. However the prosecution printed off and served in paper form the actual pages used in the compilation of a Sequence of Events Schedule and included in these PPE but refused to include the full number of pages in the exhibits in the page count figure. The judge was consequently asked to make a Furniss style order and direct the Crown to include the total number of pages of telephone evidence contained on the discs in an updated page count of prosecution evidence.

The judge rejected the application and held that the evidence underpinning the prosecution case had been correctly served. He concluded that “the decision made by Mr Justice Haddon-Cave is not only not binding on any Crown Court judge, but the reasoning behind his decision is, with the utmost respect, flawed”. With reference to the Criminal Legal Aid (Remuneration) Regulations 2013 (“the Regulations”) he explained his reasoning as follows:

  1. “There is a clear legislative framework laid down in the regulations to determine the appropriate level of remuneration in a given case, which requires the submission of a claim form by the defence litigator/advocate, determination by the appropriate officer in accordance with the provisions of Schedule 1 or 2, redetermination by the appropriate officer on application by a litigator or advocate who is dissatisfied with the calculation, appeal to a costs judge and if the costs judge certifies a point of principle of general public importance, appeal to the High Court;
  2. It is therefore 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.”

He ruled that in accordance with the para 2(C) of the Regulations as the telephone evidence omitted from the page count in Manning had “never existed in paper form” it could not to be included in 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” (para 2(C)). As a consequence the defence litigators and advocates had to either persuade the appropriate officer to include some or all of the material in the PPE or claim an hourly rate for reasonable remuneration.

Facing up to reality of the current financing climate the consequence of the Manning judgment is likely to be the end of successful applications to the trial judge for Furniss style orders forcing the CPS to include digital evidence in the PPE.

Disappointing though this is the Manning judgment does nonetheless offer some potential assistance to practitioners in the strengthening of their hand on an application to the determining officer for discretionary inclusion of the relevant material in the page count figure.

In Manning the judge made reference to the costs decision in R v Napper SCCO Ref 160/14 which held that “relevant circumstances” within the Regulations would include “whether the evidence served electronically was pivotal, whether it underpinned the understanding or admissibility of other pieces of evidence, and whether the volume of evidence disrupted the fair and predicted economic balance of the remuneration paid for a case in the light of the LAA’s position statement that the statutory changes were not designed to disrupt the status quo” (para 29).

HHJ Mansell QC then went on to make detailed and case specific positive comment about the work undertaken by the defence litigators and advocates in the Manning case in regard to the omitted evidence under consideration. He concluded: “Applying the criteria as set out in Napper, I regard the telephone evidence against each of these three defendants as absolutely pivotal to the prosecution case against each of them.”

The practical consequence of Manning should be that in appropriate cases practitioners should prepare a short written note setting out in bullet point format the relevance and importance of the digital material omitted from the PPE and the reasons why it has required detailed consideration by the litigator and the advocate. The note should be submitted to the trial judge prior to the conclusion of the case. The judge should then be invited to make positive comment on its contents so that this judicial comment can then be reported in the subsequent fees application.

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