A costs judge has questioned the reasoning behind the Legal Aid Agency’s decision over pages of prosecution evidence – but dismissed an appeal challenging the assessment. 

Mackrell Marsh & Co Solicitors, based in Hove, East Sussex, had acted for a defendant to five counts of exposure. It appealed the agency's decision to allow 109 pages of prosecution evidence rather than the 6,450 pages for which the firm had claimed. Mackrell Marsh said analysis of the defendant's phone led to the Crown offering no evidence three days into the trial.

The determining officer said counsel for the defence considered the material to be unused evidence, not relied on by the prosecution, and claimed time for 10 hours’ work.

Costs judge Rowley said he did not understand the determining officer’s reasoning that ‘the advocate had already claimed and been allowed the same evidence as unused material'. The judgment added: ‘Whilst it is obviously desirable for all the fees to be calculated on the same factual basis, I am afraid I do not understand the determining officer’s approach in this case. However, that does not mean the solicitors are successful in their appeal.’

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The judge acknowledged that documents originally provided as unused material ‘can be treated as served material if it is sufficiently pivotal to the case’ but said ‘it does not seem to me in either case the solicitors can demonstrate that the evidence was ever going to be relied upon in respect of the prosecution itself as opposed to combating the defendant’s case’.

The judge added: ‘PPE relates to prosecution evidence served by the Crown as being sufficient to convict the defendant. It does not relate to a response to the defendant’s case.’

Dismissing the appeal, the judge said the determining officer’s reason for calculating the PPE without the electronic evidence could not be upheld but ‘the outcome remains the same’.