r-v-furniss-and-others

MR JUSTICE HADDON-CAVEApproved RulingR v Michael Furniss & Others23. In the present case, there are many hundreds of hours of telephone calls and texts,together with Police Advisory Service (“PAS”) evidence from Custody. All of thisevidence has had to be viewed, or listened to, and studied by the advocates andsubmissions made in relation to them. The advocates face the uncertain prospect ofhaving to persuade the taxing officer, in due course, that this is all work for which it is‘reasonable’ for them to be remunerated. There is no guarantee, however, that a taxingofficer (who has not had the benefit of sitting through the trial like the trial judge) willmake any, or any sufficient, allowance for it. Experience suggests that the Legal AidAgency (“LAA”) will not usually agree to pay anywhere near the actual amount of timeand work which was expended by the advocates in studying and marshalling this sort ofevidence.Digital working24. Prosecuting authorities have, for quite understandable reasons of technical convenienceand saving printing costs, taken to serving large tranches of material on disc which wouldhave previously appeared in written/printed form by way of un-paginated electronicformat. In the past, material such as telephone records, telephone downloads, evenphotographs, would have been printed off in paper format and would, therefore,automatically have formed part of the printed PPE material served by the Prosecution.Now such material is served electronically in digital format as explained above.25. Prosecuting authorities have not always counted such telephone material as part of thePPE. This has lead to an increasing number of appeals to Costs Judges against decisionsof the Prosecution and LAA. The Costs Judge’s rulings have all been to the effect thatsuch materials should be included in the PPE since the material would previously havebeen served on paper (see below). Regrettably, the rulings of Cost Judges do not seem tohave always been heeded by the Crown Prosecution Service or LAA.26. It should be noted that there have been a number of large and complex cases pilotedrecently where the entire case has been served electronically (including Indictment,statements, exhibits etc). These cases have not caused a problem or conflicted with theGFS, since the Prosecution have very properly counted all such pages served in electronicformat as ‘served’ material included in the PPE and evidenced this with an appropriateNAE cover sheet. Indeed, as noted above, the direction of travel is now more and moretowards electronic service. This is to be welcomed in the digital age.The LawFunding Order (2012 amendment)27. Remuneration for the Defence is provided for under the Funding Order 2007 asamended. Following the first amendment of 2012 (SI 2012/750), material is now to beincluded in the Graduated Fee Page Count (PPE) if it would have existed originally inpaper form but was served electronically. That was an amendment designed to heralddigital working in the Criminal Justice System. Importantly, however, the amendmentwent on to state that:“(2) For the purposes of this Schedule, the number of pages of prosecutionevidence served on the court shall be determined in accordance withparagraphs (2A) to (2C).