England and Wales High Court (Senior Courts Costs Office) Decisions

IN THE SENIOR COURTS COSTS OFFICE
ON APPEAL FROM REDETERMINATION

		13th January 2010

REASONS FOR DECISION
1. This is an appeal by McLarty & Co, a firm of solicitors in Walthamstow, against the decision of the Legal Services Commission not to allow a special preparation fee for time spent watching closed circuit television footage.
2. The solicitors were instructed to represent Shafique Uddin on a charge of rape. When, at the conclusion of the proceedings, they submitted their claim for a graduated fee, they sought also a special preparation fee for 4½ hours spent "viewing video".
3. A copy of the file note for that work was attached to the claim and that note recorded:

JJM viewing CCTV and checking against guide to viewing CCTV exhibits and map. In total DVDs added up to 12hrs but fast-forwarded through "sections" in line with transcript provided.

4. At the material time paragraph 15 of Schedule 2 to the Criminal Defence Service (Funding) Order 2007 provided:

(1) This paragraph applies where, in any case on indictment in the Crown Court in respect of which a fee is payable under part 2, any or all of the prosecution evidence, as defined in paragraph 1(2), is served in electronic form only, and the appropriate officer considers it reasonable to make a payment in excess of the fee payable under Part 2.

(2) Where this paragraph applies, a special preparation fee may be paid in addition to the fee payable under Part 2.

5. Paragraph 1(2) of Schedule 2 provides:

For the purpose of this Schedule, the number of pages of prosecution evidence served on the court 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, but does not include any document provided on CD-Rom or by other means of electronic communication.

6. The Commission declined to pay a special preparation fee in this case. In their letter dated 20^th August 2009 they explained:

That definition [in paragraph 1(2)] expressly refers to "pages" of prosecution evidence and "documents" provided by way of electronic communication. It is therefore impossible to equate CCTV footage to documents or pages of evidence.

Additionally, the pre-enactment history of the Order makes it clear that the intention was expressly to exclude additional payment for work such as viewing CCTV footage. Payment for this work is included in the initial fee payable pursuant to paragraphs 7 and 8 of the Order.

Finally, the Order provides a detailed and carefully formulated scheme for the calculation of fees in criminal cases. If the intention had been to permit additional fees for viewing CCTV footage then the Order would have explicitly said so.

7. That view was reiterated in the Commission's written reasons dated 2^nd September 2009:

For the purposes of a special preparation claim the evidence served must fall within this definition, the definition as you can see refers to 'pages' and 'documents' and the said evidence must be served in an electronic format only. There is no denying that CCTV is served solely in an electronic format, however it does not fall into the definition of prosecution evidence laid out in the guidance above, as CCTV is not a document nor does it contain pages.

Your assumption that the LSC's interpretation of paragraph 1(2) would mean that nothing would fall within the ambit of paragraph 15, as everything would be claimed as the page count is also incorrect. There are certain items that are served solely in an electronic format that are classified as pages of evidence, for example sensitive images which are served electronically due to their nature or financial documents and statements which are served on CD ROM due to their large volume, special preparation claims would be valid for viewing such information.

8. The relevant regulations were recently considered by the High Court in Lord Chancellor v Michael J Reed [2009] EWHC 2981 (QB) in which I assisted the Court as an assessor. The hearing of the appeal in the present case was delayed pending the handing down of judgment in that case.
9. The issue in Reed was whether a litigator could be entitled to a special preparation fee for work done watching video footage of the scene of an alleged motoring offence which had been served by the prosecution on DVD. In granting the Lord Chancellor's appeal against the decision of the Costs Judge to allow a special preparation fee, Penry-Davey J said at paragraph 9 of his judgment:

(a) The wording of Paragraph 15 incorporating the definition in paragraph 1 (2) does not and cannot include DVD footage of the relevant section of road in this case. Indeed the wording clearly excludes such material.

(b) The costs judge's expressed reason for his conclusion, namely that the DVD was "central to the charge against the Defendant" and as such important for the solicitor to study, did not explain the basis on which he concluded that the DVD was within the definition, and was in itself no reason for such inclusion.

(c) His decision although expressed to be "on the facts of this case" is contrary to the clear wording of the Order.

(d) Although it is clear from the background material put before me by the appellant that express consideration was given to electronic material in the consultation process which preceded the Order and that the intention was to exclude from Paragraph 15 electronic material of this kind, I have not found it necessary in considering the construction of the Order to seek assistance from that background material because the meaning is clear. However, it is the position that the expressed intention is reflected in and entirely consistent with the wording and meaning of the Order.

(e) The clear effect of paragraph 1(2) is to exclude from the calculation of prosecution pages of evidence any DVD, CD Rom, audio or video tape or other electronically served material. The definition excludes or, to use the wording of the Order, "does not include any document provided on CD –ROM or by other means of electronic communication." There is a limited saving for "any document" so served in Paragraph 15; but any material served electronically which does not come within the definition of "any document provided on CD-ROM or by other means of electronic communication" for example a DVD of moving footage is outwith the definition in paragraph 1(2) and outwith Paragraph 15. The result is that such material is not part of the fee calculation at all save as part of the basic/initial fee. That result also reflects the intention of the authors of the Order.

(f) Paragraph 15 also excludes any special preparation fee being awarded in respect of such material unless the material is within the definition in paragraph 1(2). If (and only if) such material is served in electronic form only, and it consists of "any document" can the additional material so served qualify for a special preparation fee in excess of the fee payable under Part 2 if the appropriate officer considers it reasonable to make such payment. The words "any document" in my judgment in context mean a still image, rather than moving footage (whether in the form of a DVD, CD-ROM or video or audio tape or some other electronic form) not intended for conversion to still images or which can not be so converted .

(g) I am fortified in my conclusion as to the meaning of paragraph 1(2) by the decision of Walker J in Goodman and Farr v Secretary of State for Constitutional Affairs (2007) 3 Costs LR 366 He concluded that the words "pages of prosecution evidence" did not encompass the DVDs and inlays in that case, which constituted real evidence and had not been copied, photographed or converted in to the form of electronic documents as distinct from a hard document. They did not constitute such pages. He said this at paragraph 45 "The schedule has chosen to work by reference to pages of prosecution evidence. That connotes to my mind something which is on a page." He left open the question of whether a page might take the form of an electronic document. The definition in the Order at that time did not contain the words subsequently added referring to documents provided on CD-ROM or otherwise electronically. The additional words considered together with Paragraph 15 resolve the question which Walker J left open to the extent explained in this judgment.

10. In the present case the Lord Chancellor submitted written representations to the effect that Reed should be followed and the appeal should be dismissed. It therefore fell to Mr Dawnay, who represented the solicitors at the hearing of this appeal, to distinguish the present case.
11. He sought to rely on the words of Penry-Davey J at paragraph 9(f):

The words "any document" in my judgment in context mean a still image, rather than moving footage (whether in the form of a DVD, CD-ROM or video or audio tape or some other electronic form) not intended for conversion to still images or which can not be so converted.

12. Mr Dawnay sought to draw a distinction between the video footage in Reed and the CCTV footage in the present case. He submitted that the form in which the footage was held was not relevant and that it was the purpose that was relevant. In Reed the purpose would have been to show movement – the movement of a vehicle along the road. In the present case the purpose of the footage was identification. Conventionally, the output of closed circuit televisions was a series of still images recorded on video tape. These were generally printed off and produced as still images for use in the trial.
13. In support of his submission that the CCTV footage was "a document" Mr Dawnay relied on the decision of the Divisional Court in R v Calderdale Magistrates' Court ex p Donahue & Cutler [2001] Crim LR 141. There the issue was whether the prosecution should have disclosed a video tape which showed two men leaving a shop without paying for some compact discs that they had concealed in their coats. The court held that the tape should have been disclosed as it was a "document" for the purposes of the Magistrates' Court (Advance Information) Rules 1985, r.4(1)-(3).
14. Mr Dawnay also drew my attention to the decision of the Divisional Court in R v DPP ex p Croydon Magistrates' Court [2001] EWHC Admin 552. The issue there was whether the Court should have ordered the prosecution to serve DNA evidence under the 1985 rules. Brooke LJ considered the definition of "document" at paragraph 24 ff:

24. I wish only to add a few words in relation to the case of R v Calderdale Magistrates' Court, ex parte Donahue and Cutler (unreported Crown Office transcript 18th October 2000). As Harrison J has observed, that case was decided on the foundation of a concession recorded by Bell J in paragraph 24 of his judgment that a document meant anything in which information of any description was recorded for the purposes of the interpretation of the Magistrates' Court (Advance Information) Rules 1985.

25. The definition of the word "document" goes back into our legal history. In R v Hunt [1820] 3 Barn & Ald 566, 574, it was decided that a flag or banner bearing words or inscriptions should not be regarded as a document for the purpose of that part of the law of evidence in which a distinction was made between documents on the one hand and material objects on the other. In Bartholomew v Stephens [1839] 3 C&P 728 a notice board prohibiting trespassing was similarly not treated as a document, as opposed to a material object. Coming forward to the last century, in R v Daye [1908] 2 KB 333, Darling J said at page 340 that he did not assent to the argument that a thing was not a document unless it be a paper writing:

"I should say it is a document, no matter on what material it be, provided it is writing or printing capable of being made evidence."

26. In a number of modern statutes an express definition of the word "document" is included, and it is defined as meaning "anything in which information of any description is recorded". This definition appears in section 43 of the Gaming Act 1968, in schedule 2 paragraph 5(1) of the Criminal Justice Act 1988, referring to part 2 of that Act, in section 13 of the Civil Evidence Act 1995, and in section 5A(4) of the Magistrates' Court Act 1980 (as amended). It does not appear in the Magistrates' Court (Advance Information) Rules 1985, and it would fall for decision in another case in which a concession is not made, as it was made in ex parte Donahue, as to whether a video or other material which (might qualify as a document within the meaning of the statutory definition to which I have referred) needs to be produced pursuant to those rules when the prosecutor has already adduced a fair summary of the facts and matters on which he is going to rely.

27. As I say, we do not have to decide that point on the present application.

15. Included within the bundle for this appeal was the witness statement of Amina Tandel who produced the CCTV footage in the present case. The witness statement records:

I am a trained CCTV Operator working at the London Borough of Hackney CCTV Centre. The CCTV Centre's role is to monitor and record video images from CCTV Cameras situated mostly in public areas around the London Borough of Hackney. The CCTV Centre records the video images onto 'Vigilant' digital recorders in MPEG1 or MPEG4 format at a rate of 12.5 images per second. The video images are held on a series of servers for a period of about 28 days and can be archived onto Compact Discs (CDs), Digital Video Discs (DVDs) or Hard Disk Drives (HDDs).

The witness then produced the CCTV footage as an exhibit.

16. That may be of some significance in view of the solicitors' contention that the CCTV footage in the present case was a pictorial exhibit within the definition of paragraph 1(2): Grounds of Objection, paragraph 10.
17. It is not in issue in the present case that the CCTV footage was served by the prosecution in electronic form only for the purposes of paragraph 15. As in Reed, the only issue is whether it consists of "any document" so as potentially to fall within the prosecution evidence as defined in paragraph 1(2): see the judgment of Penry-Davey J at paragraph 9(f).
18. In my judgment, it does not. The definition provided by paragraph 1(2) is of "pages of prosecution evidence" the number of pages being a factor in the formulae provided for the calculation of litigator graduated fees in part 2 of schedule 2. It seems to me that Penry-Davey J had that in mind when he drew the distinction between still images on the one hand and "moving footage … not intended for conversion to still images or which cannot be so converted" on the other – the distinction between something which is intended to be put on a page and something which is not intended to be put on a page. That would also seem to be apparent from paragraph 9(g) of his judgment in which he refers to the decision of Walker J in Goodman & Farr v Secretary of State for Constitutional Affairs [2007] 3 Costs LR 366:

The schedule has chosen to work by reference to pages of prosecution evidence. That connotes to my mind something which is on a page.

19. The CCTV footage in this case was served as moving footage in either MPEG1 or MPEG4 format. Clearly it was intended to be watched as moving footage – as indeed it was. It was not intended for conversion to still images. 12 hours of footage at 12.5 images per second would amount to 540,000 images (12 x 60 x 60 x 12.5).
20. As I understand it, all moving footage of whatever format consists of a series of still images. The movement comes from the speed at which the still images are displayed Of course it may be that in a particular case the lawyers will wish to print off one or more frames of a video recording, but to my mind that would not make the footage as a whole "intended for conversion to still images" or something intended to be put on a page.
21. I can see no distinction between the digital video footage in the present case and the digital video footage in Reed. Either could have been printed off as a series of still images but, in my judgment, neither was intended to be printed off.
22. For the purposes of this appeal it seems to me that I do not need to attempt to decide whether a digital video recording is a "document", because I am bound to follow the decision in Reed, a decision with which I respectfully still agree.
23. I am fortified in my conclusions by the background material to the litigator graduated fee scheme, referred to by Penry-Davey J at paragraph 4. Clearly it was intended that watching tape footage would fall within the graduated fee rather than give rise to a special preparation fee.
24. It seems to me that the scheme that was intended is quite straightforward. The number of pages of prosecution evidence that is served is a factor in the calculation of the graduated fee. Pages served electronically do not count towards that number. However where pages which would otherwise count, do not count because they were served electronically, a special preparation fee may be paid. Moving images are not pages for these purposes unless it is intended that they are to be converted to still images.
25. Accordingly the appeal is dismissed.