R v Phillip Ali

Introduction

1. Edwards Duthie Shamash Solicitors (‘the Appellants’) appeal the decision of the Determining Officer at the Legal Aid Agency (‘the Respondent’) to reduce the number of pages of prosecution evidence (‘PPE’) forming part of its Litigator’s Graduated Fees Scheme (‘LGFS’) claim. Background

2. The Appellants represented Mr Philip Ali (‘the Defendant’), who was charged with four co-defendants at Chelmsford Crown Court on an indictment alleging 22 counts under the Animal Welfare Act 2006 , comprising allegations concerning the keeping, training or promoting animals for animal fighting. He pleaded not guilty on 12 th January 2023 and was convicted on 3 rd April 2024.

3. The Appellants claimed 4485 PPE. Insofar as one element is now conceded, namely pages in respect of voicemail messages, the PPE count advanced on appeal is 4114. The Determining Officer has allowed 1289 PPE, comprising 224 pages of witness statements, 409 pages of exhibits and 656 pages of electronic datum downloaded from a mobile phone recovered from the Defendant. The 656 electronic PPE comprised call logs (3 pages), contacts (14), locations (328), web history (74) and images (240). The Regulations

4. The Criminal Legal Aid (Remuneration) Regulations 2013 (‘the 2013 Regulations’) apply, as amended.

5. Paragraph 1 of Schedule 2 to the 2013 Regulations provides (where relevant) as follows:

1. Interpretation … (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 committal or 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 in account the nature of the document and any other relevant circumstances . Case guidance

6. Authoritative guidance was given in Lord Chancellor v. SVS Solicitors [2017] EWHC 1045 (QB) where Mr Justice Holroyde stated (at para. 50): (i) The starting point is that only served evidence and exhibits can be counted as PPE. Material which is only disclosed as unused material cannot be PPE. (ii) In this context, references to “served” evidence and exhibits must mean “served as part of the evidence and exhibits in the case”. The evidence on which the prosecution rely will of course be served; but evidence may be served even though the prosecution does not specifically rely on every part of it. (iii) Where evidence and exhibits are formally served as part of the material on the basis of which a defendant is sent for trial, or under a subsequent notice of additional evidence, and are recorded as such in the relevant notices, there is no difficulty in concluding that they are served. But paragraph 1(3) of Schedule 2 to the 2013 Regulations only says that the number of PPE “includes” such material: it does not say that the number of PPE “comprises only” such material. (iv) “Service” may therefore be informal. Formal service is of course much to be preferred, both because it is required by the Criminal Procedure Rules and because it avoids subsequent arguments about the status of material. But it would be in nobody’s interests to penalise informality if, in sensibly and cooperatively progressing a trial, the advocates dispense with the need for service of a notice of additional evidence, before further evidence could be adduced, and all parties subsequently overlooked the need for the prosecution to serve the requisite notice ex post facto. (v) The phrase “served on the court” seems to me to do no more than identify a convenient form of evidence as to what has been served by the prosecution on the defendant. I do not think that “service on the court” is a necessary pre-condition of evidence counting as part of the PPE. If 100 pages of further evidence and exhibits were served on a defendant under cover of a notice of additional evidence, it cannot be right that those 100 pages could be excluded from the count of PPE merely because the notice had for some reason not reached the court. (vi) In short, it is important to observe the formalities of service, and compliance with the formalities will provide clear evidence as to the status of particular material; but non-compliance with the formalities of service cannot of itself necessarily exclude material from the count of PPE. (vii) Where the prosecution seek to rely on only part of the data recovered from a particular source, and therefore served an exhibit which contains only some of the data, issues may arise as to whether all of the data should be exhibited. The resolution of such issues would depend on the circumstances of the particular case, and on whether the data which have been exhibited can only fairly be considered in the light of the totality of the data. It should almost always be possible for the parties to resolve such issues between themselves, and it is in the interests of all concerned that a clear decision is reached and any necessary notice of additional evidence served. If, exceptionally, the parties are unable to agree as to what should be served, the trial judge can be asked whether he or she is prepared to make a ruling in the exercise of his case management powers. In such circumstances, the trial judge (if willing to make a ruling) will have to consider all the circumstances of the case before deciding whether the prosecution should be directed either to exhibit the underlying material or to present their case without the extracted material on which they seek to rely. (viii) If – regrettably – the status of particular material has not been clearly resolved between the parties, or (exceptionally) by a ruling of the trial judge, then the Determining Office (or, on appeal, the Costs Judge) will have to determine it in the light of the information which is available. The view initially taken by the prosecution as to the status of the material will be a very important consideration, and will often be decisive, but is not necessarily so: if in reality the material was of central importance to the trial (and not merely helpful to the defence), the Determining Officer (or Costs Judge) will be entitled to conclude that it was in fact served, and that the absence of formal service should not affect its inclusion in the PPE. Again, this will be a case-specific decision. In making that decision, the Determining Officer (or Costs Judge) will be entitled to regard the failure of the parties to reach any agreement, or to seek a ruling from the trial judge, as a powerful indication that the prosecution’s initial view as to the status of the material was correct. If the Determining Officer (or Costs Judge) is unable to conclude that material was in fact served, then it must be treated as unused material, even if it was important to the defence. (ix) If an exhibit is served, but in electronic form and in circumstances which come within paragraph 1(5) of Schedule 2, the Determining Officer (or, on appeal, the Costs Judge) will have a discretion as to whether he or she considers it appropriate to include it in the PPE. As I have indicated above, the LAA’s Crown Court Fee Guidance explains the factors which should be considered. This is an important and valuable control mechanism which ensures the public funds are not expended inappropriately. (x) If an exhibit is served in electronic form but the Determining Officer (or Costs Judge) considers it inappropriate to include it in the count of PPE, a claim for special preparation may be made by the solicitors in the limited circumstances defined by paragraph 20 of Schedule 2. (xi) If material which has been disclosed as unused material has not in fact been served (even informally) as evidence or exhibits, and the Determining Officer has not concluded that it should have been served (as indicated at (viii) above), then it cannot be included in the number of PPE. In such circumstances, the discretion under paragraph 1(5) does not apply.

7. I am referred additionally to the decisions in R v. Jalibaghodelezhi [2014] 4 Costs CLR 781, R v. Sereika [2018] SCCO Ref: 168/18, R v. Barrass [2020] SC-2020-CRI-000083, R v. Mucktar Khan [2019], SCCO Ref: 2/13, R v. Lawrence [2022] EWHC 3355, and Lord Chancellor v. Lan and Meerbux Solicitors [2023] EWHC 1186, R v. Gyanfi [2022] EWHC 2550 (SCCO) and Lord Chancellor v. IMS Law [2025] EWHC 2018 (KB). The submissions

8. The Respondent’s case is set out in Written Reasons dated 10 th January 2025 and in Submissions drafted by Uchechukwuka Edozie of the Government Legal Department on 19 th August 2025. The Appellants’ case is set out in a Note to the LAA dated 23 rd July 2024, the Notice of Appeal and in Written Submissions drafted by Mr Shaun Murphy on 21 st August 2025. Mr Murphy, solicitor and Mr Edozie, counsel, attended and made oral submissions at the hearing on 22 nd August 2025. My analysis and conclusions

9. The Respondent, in summary, submits that the DO made reasonable allowance for all the categories of relevant electronic datum. Insofar as images were concerned, it was accepted that the prosecution relied on specific images downloaded from the Defendant’s phone. Most of the pictures on his phone, however, fell “within the broad categories of selfies, photos of family, friends, animals or children, internet jokes, memes and quotes, celebrities and politicians or pre-installed images”. Such pictures were “on the whole irrelevant”. Insofar as the Defendant’s phone contained approximately 2393 pages of images, the DO allowed approximately 10% for the PPE count.

10. The Appellants, in summary, challenge primarily the DO’s assessment of the images/pictures on the Defendant’s phone. First, the Defendant submits that the images comprise 4179 pages (pp 143-4322) of electronic datum. Second, the Defendant submits that the 10% allowance was “pulled out of the air” and inadequate. The prosecution had relied on various images downloaded from the Defendant’s telephone to demonstrate that he was a ringleader of organised dog fighting activities, in this country and overseas. It was common ground that he had received pictures from people with similar interests in dogfighting. The defence asserted that all such images emanated from overseas and not this country. Credibility of his defence, in other words, rested on broad brush issues relevant to geography, as well as those pertinent to the question of animals and animal fighting. The Appellants also identified a secondary issue concerning ‘Installed Applications’ (66 pages), although it was not entirely clear at the hearing, despite specific enquiry, whether this comprised a truly separate category of evidence, or whether it formed part of what the DO had described as ‘web history’.

11. It is clear to me that the DO adopted an assessment of the electronic datum that was broadly reasonable. The PPE count included call logs, contacts, locations, web history and a portion of the images, considering that images comprised a relatively significant part of the prosecution evidence. The % allowance approach is adopted widely and it has been endorsed as reasonable in numerous reported cases. Evidently, as is often the case, most of the images downloaded from the Defendant’s phone were necessarily irrelevant to either the prosecution or the defence at trial. Nonetheless, I find that the DO, on the particular facts of this case, restricted unreasonably the PPE count. I am satisfied that the total amount for images of 2393 may have been a little conservative; the Appellants were persuasive at the oral hearing in suggesting that the total page count was higher, although it may not have been as great as the 4179 asserted originally in the July 2024 Note. Second, giving the specific and general relevance of images to the prosecution case, I find that a 10% allowance was too low in this case. Again, on the particular facts of this case, PPE allowance for images would reasonably have been in the range of 20-25%. It is also likely, on the written and oral evidence available to me, that the DO’s allowance for installed applications was too low. As noted above, meanwhile, the original claim relevant to voicemails were abandoned, following the appellant court’s decision in Lord Chancellor v. IMS Law (ibid).

12. Doing the best I can, I would allow a total PPE count of 1850. This incorporates an additional allowance for images, assuming that the total page count was 3000+, plus something for installed applications. The appeal is accordingly allowed to the extent that I direct that the LGFS claim be re-calculated by reference to a PPE count of 1850. Costs

13. The appeal has been successful, in part, and I allow £1500 (+ any VAT payable) in costs, in addition to the £100 paid on lodging the appeal. TO: COPIES TO: Edwards Duthie Shamash Solicitors Bank House Ilford IG1 42G Determining Officer Legal Aid Agency Nottingham DX 10035 Nottingham Uchechukwuka Edozie Government Legal Department 102 Petty France London SW1A 9AJ DX320 London The Senior Courts Costs Office , Thomas More Building, Royal Courts of Justice, Strand, London WC2A 2LL: DX 44454 Strand, Telephone No: 020 7947 6468, Fax No: 020 7947 6247. When corresponding with the court, please address letters to the Criminal Clerk and quote the SCCO number.