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	England and Wales High Court (Senior Courts Costs Office) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Senior Courts Costs Office) Decisions >> Odetunde, R. v [2025] EWHC 1069 (SCCO) (06 May 2025) URL: https://www.bailii.org/ew/cases/EWHC/Costs/2025/1069.html Cite as: [2025] EWHC 1069 (SCCO)

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IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE

		Thomas More Building Royal Courts of Justice London, WC2A 2LL
		6 May 2025

The appeal has been successful (in part) for the reasons set out below.

The appropriate additional payment, to which should be added the sum of £500 (exclusive of VAT) for costs and the £100 paid on appeal, should accordingly be made to the Applicant.

COSTS JUDGE LEONARD
1. This appeal concerns payment to defence solicitors, pursuant to the Criminal Legal Aid (Remuneration) Regulations 2013, under the provisions of the Litigators' Graduated Fee Scheme set out at Schedule 2. The Representation Order was made on 9 September 2023 and the 2013 Regulations apply as in effect on that date.
2. A fee is due to the Appellant for each case undertaken by the Appellant. Paragraph 1 of Schedule 2 defines a case, for present purposes, as:

"… proceedings in the Crown Court against any one assisted person… on one or more counts of a single indictment…"

3. The fee due for each case is calculated, along with other factors, by reference to the number of served Pages of Crown Evidence ("PPE"). The issue on this appeal is the appropriate PPE count.
4. The relevant provisions of Schedule 2 for calculating the PPE count are at paragraph 1, subsections (2)-(5), which explain how, for payment purposes, the number of pages of PPE is to be calculated:

"(2) For the purposes of this Schedule, the number of pages of Crown evidence served on the court must be determined in accordance with sub-paragraphs (3) to (5).

(3) The number of pages of Crown 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 Crown documents or which are included in any notice of additional evidence.

(4) Subject to sub-paragraph (5), a document served by the Crown in electronic form is included in the number of pages of Crown evidence.

(5) A documentary or pictorial exhibit which—

(a) has been served by the Crown in electronic form; and

(b) has never existed in paper form,

is not included within the number of pages of Crown evidence unless the appropriate officer decides that it would be appropriate to include it in the pages of Crown evidence taking into account the nature of the document and any other relevant circumstances."

5. The PPE count is subject to a cap, which for present purposes is 10,000 pages.
6. For the purposes of this appeal, I also need to refer to paragraph 20 of Schedule 2, which allows for a "special preparation" claim to be made for electronic evidence excluded from the PPE count:

"(1) This paragraph applies in any case on indictment in the Crown Court…where a documentary or pictorial exhibit is served by the Crown in electronic form and—

(i) the exhibit has never existed in paper form; and

(ii) the appropriate officer does not consider it appropriate to include the exhibit in the pages of Crown evidence…

(2) Where this paragraph applies, a special preparation fee may be paid… calculated from the number of hours which the appropriate officer considers reasonable… to view the Crown evidence… using the rates specified in the table following paragraph 27…"

Authorities on the Inclusion of Electronic Data Within the PPE

7. By virtue of paragraph 1(5) of Schedule 2 to the 2013 Regulations, served electronic evidence which has never existed in paper form may be included in the PPE count if the Determining Officer considers that appropriate.
8. In Lord Chancellor v SVS Solicitors [2017] EWHC 1045 (QB) Holroyde J (as he then was) gave guidance as to how that discretion should be exercised. At paragraph 50(viii) of his judgment he identified the key criterion: whether the evidence was of central importance to the trial (and not merely helpful or even important to the defence).
9. In Lord Chancellor v Edward Hayes LLP & Anor [2017] EWHC 138 (QB) Mrs Justice Nicola Davies DBE (as she then was) concluded that, given the importance to the Crown in that particular case of text messages, it was incumbent upon the defence team to look at all the underlying data from which the Crown had extracted samples upon which it relied. The defence needed to test the veracity of text messages, to assess the context in which they were sent, to extrapolate any data that was relevant to the messages relied on by the Crown, and to check the accuracy of the data finally relied on by the Crown. The underlying data should accordingly (although never formally served) be included within the PPE count.
10. Hayes indicates that where key Crown evidence is extracted from a particular category of electronic data, one would generally expect all of the electronic evidence in that category (in Hayes, messaging data) to be included within the PPE count.
11. Every case will however (as Holroyde J observed in Lord Chancellor v SVS) turn on its own facts. Where, for example, mobile phone downloads contain large numbers of images, only a small proportion of which are relevant, Cost Judges have, in decisions such as R v Sereika (SCCO 168/13, 12 December 2018), taken the pragmatic approach, of allowing an appropriate percentage of the full body of image data. That approach was approved by Cotter J in The Lord Chancellor v Lam & Meerbux Solicitors [2023] EWHC 1186 (KB).

The Background

12. The Appellant represented Hannah Odetunde ("the Defendant") in proceedings before the Crown Court at St Albans. The Defendant pleaded not guilty to one count of acquiring, between 14 April 2020 and 27 May 2020, the sum of £5,280 "which, as she knew or suspected, constituted or represented others' benefit from criminal conduct".
13. According to a police summary, the Defendant was arrested under "Operation Helicon", an investigation by the Serious Fraud and Cyber Unit of Hertfordshire Constabulary into offences of conspiracy to commit fraud by false representation and money laundering.
14. Three individuals were alleged to have been involved in the fraud. They were Hannah Lewis, George Haruna (the Defendant's brother) and the Defendant.
15. This was a "mandate fraud", in which fraudsters deceive their victim into changing a direct debit, standing order or bank transfer mandate by impersonating an organisation to which the victim makes regular payments. The target of this particular fraud was Hertfordshire Constabulary ("HC").
16. HC employed the services of G&L Property Maintenance Ltd ("G&L"), who communicated with HC via an email address. On about 11 March 2020, that email account was hacked by fraudsters who used it to establish contact with HC.
17. The fraudsters informed HC that G&L had changed its bank account to a Halifax account attributed to Hannah Lewis. They sent to HC bogus invoices purporting to be from G&L, and in response HC paid to the fraudsters £5,686.80 on 7 April 2020 and £8,649.60 on 7 May 2020.
18. The money received from HC was moved through bank accounts attributed to Hannah Lewis, George Haruna and the Defendant, as well as an unattributed bank account in South Africa. The movement of funds (characteristic of an attempt to disguise their original source) included a transfer of £5,280 from George Haruna's bank account to the Defendant's, with £3,000 being transferred back a month later. Each of the three defendants was said to have benefitted financially, with George Haruna as the largest beneficiary.
19. The Crown's case summary provided a detailed timeline of events, analysis of bank account statements, and attribution of mobile phones.
20. The police had seized mobile phones from all three suspects, and the Crown produced extraction reports from those mobile phones. Communications data demonstrated that George Haruna was in contact with Hannah Lewis and the Defendant at the time of each transaction, but that Hannah Lewis and the Defendant did not contact each other. This was said to demonstrate that George Haruna controlled the movement of the money.
21. The Crown also relied upon a small number of messages between telephones attributed to Hannah Lewis and George Haruna, but no messages between the Defendant and George Haruna were identified. Nor did the Crown rely upon images from any of the handsets seized.
22. The Defendant's trial was listed for 2 September 2024. On the day, the Crown offered no evidence against the Defendant and a not guilty verdict was recorded.

The Appellant's Claim

23. The Appellant submitted a claim for payment based upon a PPE count of 10,000, on the basis that a download report from the Defendant's mobile phone (which I have seen, and which comes to 74,500 pages in PDF format) was served evidence relied upon by the Crown and contained more than 10,000 pages of relevant evidence.
24. The Determining Officer declined to include any part of the download report in the PPE count on the basis that it did not meet the Lord Chancellor v SVS test. It was not, in the Determining Officer's view, served evidence and it was of little or no evidential value. The Determining Officer assessed the PPE count for this case at 285 pages.

Submissions

25. Mr Orde, in written submissions for the Lord Chancellor, argues that it was open to the Determining Officer to conclude that the telephone download report was not served evidence, but for the purposes of this appeal he accepts that it was.
26. On the basis that the Crown case was based on contact between the three suspects, and for the purposes of putting all of those communications evidence into context, Mr Orde concedes a further 472 PPE from the download report, comprising 29 pages of contacts, 5 pages of text messages and 438 pages of call logs.
27. The Appellant argues for the inclusion of a further 20,818 pages of photographs from the download report. This, says the Appellant, excludes over 30,000 pages of logos, emojis and other media which the Appellant accepts would not belong within the PPE count.
28. The Defendant's case was that she had no knowledge that the monies transferred to her were from the proceeds of criminal activity. She believed the monies to be the savings of her brother, intended to pay for a British citizenship application and transferred to her for safekeeping. She denied any knowledge either of the "Mandate Fraud" or of Hannah Lewis.
29. The Appellant requested a copy of the telephone download report because it was thought that it might assist the defence. It was then served under cover of a witness statement.
30. There are, within the download report, a large number of photographs of the Defendant with various different people. It was important for the defence to confirm that Hannah Lewis was not one of them.
31. Similarly, there were numerous photographs of documentation. It was necessary for those documents to be considered to ensure that they had no relevance to the fraud, and in particular that they did not refer to G&L.
32. Further, there were a large number of photographs of designer clothing and other branded items. Given that the Defendant was standing trial for a lifestyle offence, and the suggestion was that she had kept over £2,000 of the monies transferred to her, then the numerous photographs of designer goods could have been used by the Crown to establish a lifestyle and spending pattern beyond the means of the Defendant's legitimate income as a social worker and as such strengthen the Crown's case that the Defendant was acquiring the proceeds of crime to fund a lavish lifestyle.
33. Mr Orde submits that this was not a case where images appeared to be important. The Crown's case was that an email account was hacked, bogus invoices sent and money paid against those invoices, then moved between bank accounts. It is difficult on those facts to see how images could be relevant, which would explain the Crown's apparent decision to not rely on any photos. Nor did the Crown seek to make out a case by reference to photographs of clothing or paperwork.
34. The images relied upon by the Appellant do not belong within the PPE count, but reasonable time spent considering them should be remunerated as special preparation.
35. The Appellant says in response that a claim for special preparation, applying a conservative estimate of 30 seconds per page for each page of the download report, would total about 625 hours, which at a Category B fee rate would justify a claim in excess of £30,000. That can be compared to a total fee of £29,792.20, payable on a PPE count of 10,000 pages, and demonstrates that the Appellant's PPE claimant does not represent an inappropriate use of public funds.

Conclusions

36. It is common ground (see R v Lawrence [2022] EWHC 3355 (SCCO)) that it is for the Appellant to identify relevant images from the served evidence and to calculate a sensible approximation of the number of such images for the purposes of a PPE count. In my view the Appellant has not discharged the burden of showing that any photographic images in this case were of sufficient evidential significance to be included within the PPE.
37. In this case, it appears that the Crown did not rely upon any photographic evidence. The case against the Defendant was based upon communications and the movement of funds through bank accounts.
38. Even assuming (which I do not accept) that a PPE claim can be based upon what the prosecution might have done, rather than what the prosecution actually did, I have heard nothing to demonstrate that any of the photographs of people or documentation referred to by the Appellant could have been relied on by the Crown, had the Crown chosen to do so. They would appear to have been of no evidential significance.
39. To be included within the PPE, electronic evidence must be of central importance to the case. I have heard more than once an argument to the effect that the complete absence of any relevant evidence (for example, of association with a given person) within a given body of electronic data was precisely what rendered it important.
40. That, in my view, cannot be right. The electronic evidence has to have some probative value. The mere absence, within a given body of data, of anything upon which the Prosecution can rely cannot justify the inclusion of that data in the PPE count, however helpful that absence may have been to the defence.
41. As for pictures of clothing and branded items, had the Crown wished to show that the Defendant had spent £2,280 rather than holding it for her brother as she claimed, the obvious source of information would have been the same account records that showed the movement of monies through her account. I cannot see how pictures on her mobile phone could have been of any real probative value, and it is unsurprising that the Crown did not rely upon them.
42. I accept, of course, that the Appellant considered it necessary to require a copy of the telephone download report and to review it to check, for example, whether there might be anything there that would undermine the Defendant's case. It does not follow that such evidence must in consequence, be included within the PPE count. That is not the test.
43. In this case some of that work may, as Mr Orde concedes, justify a claim for special preparation. It is not necessary for me to attempt to quantify such a claim, because the question before me is only whether the evidence referred to by the Appellant should be included within the PPE count. How a special preparation claim might compare with the Graduated Fee payable on a 10,000 PPE count is not to the point.
44. I would suggest however (without needing to make any finding) that the starting point for a viable special preparation claim would be the 20,818 pages of images referred to by the Appellant rather than the entire telephone download report. Most of the report (other than the parts already allowed as PPE) would be patently irrelevant and would not justify any significant expenditure of time. If that is right, any special preparation claim would be allowed at a fraction of the figure suggested by the Appellant.
45. In summary, this appeal succeeds only to the limited extent conceded by the Lord Chancellor (an additional 472 PPE). Given that the Appellant's electronic PPE claim should not have been rejected in its entirety by the Determining Officer, I also allow the sum of £500 sought by the Appellant for the costs of the appeal.