R v Christian Dorot

Senior Costs Judge Rowley:

1. This is an appeal by Harewood Law solicitors against the number of pages of prosecution evidence (“PPE”) allowed by the determining officer when calculating the fee payable under the Litigators Graduated Fee Scheme pursuant to the Criminal Legal Aid (Remuneration) Regulations 2013, as amended.

2. The solicitors were instructed on behalf of Christian Dorot who faced eight counts of a nine count indictment. The nature of the case is neatly summarised in the first paragraph of the submissions of the Lord Chancellor in respect of this appeal as follows: “[Christian Dorot] was charged with two counts of arranging or facilitating the travel of another person with a view to exploitation; two counts of holding a person in slavery or servitude; one count of rape; one count of unlawful wounding; one count of making a threat to kill and one count of committing an act or series of acts tending and intended to pervert the course of justice. Christian Dorot entered not guilty pleas at the PCMH but amended a guilty plea to an alternative charge during the trial. The [solicitors] claimed that there were 10,000 pages of prosecution evidence. The determining officer decided there were 2,662 PPE.”

3. The question on this appeal therefore is the amount of PPE to be allowed. During the determination and redetermination process, the determining officer allowed 468 pages of witness statements, exhibits and transcripts on paper, and 2,194 pages of electronic evidence recovered from a mobile phone. The electronic evidence figure was allowed as follows: • 10 pages of call logs • 1,019 pages of chats • 6 pages of contacts • 64 pages of emails • 1 page of instant messages • 1 page of locations • 643 pages of web history • 450 pages of images (10% of the total number of pages)

4. It is common ground that the mobile phone evidence was served by the prosecution and indeed was central to its case. Therefore, whilst both the solicitors and the Lord Chancellor have cited many cases on such matters, there is no need for me to do so here. Similarly, there are submissions regarding duplicate formats and whether PDF documents or Excel documents are to be preferred when considering page count which are not relevant to my decision.

5. Indeed, by the end of the redetermination process, the dispute amounts to (1) a challenge as to the percentage of the images allowed and (2) whether the number of pages to which that percentage is applied should be based on each page containing 10 “thumbnail” images, or that each image should be treated as being a page in itself.

6. The defendant’s case was that the complainant was running a massage business unbeknown to the defendant. It is described in the second note of the solicitors in respect of the fee claim as follows: “The Crown’s case was that our client had arranged and facilitated the travel of the complainant from Romania with a view to exploit her. He held her in slavery and forced her to become an escort in the Bradford area. She alleged that our client was the mastermind on the mobile phone. She alleged that he communicated with the punters pretending to be her. She alleged that they both had access to the phone, but hers was limited access. The client stated that they both had access to the phone, but that his access was limited. He stated that he worked in construction between 7am – 7pm, during this time he would not have access and that the complainant would have the phone. It was imperative for us to understand the pattern of usage of said phone, searches that were done, messages received and sent during particular times, cross-referenced the web searches against tags of images, complainant’s allegations needed to be verified and checked against all areas of the phone. Each area of the phone is linked and location of phone, whether wireless or cellular, passwords retrieved from the device needs to be checked, emails connected to the vivastreet account. This device was the alleged business phone which our client denied, firstly, that he set it up, created the adverts, used passwords to connect to the business, communicate with the punters, search for specific images of escorts, create adverts based on images that the complainant alleges i.e. a woman with teddy bear etc. In a case such as this whereby the mobile phone is the key to the Crown’s case, they alleged the serious charges against our client happened as the complainant has stated, it was our job to ensure that we examined all aspects of this device to ensure that certain allegations made by the complainant may be rebutted, counter argued against, identify fabrications, et cetera. It simply would not be sufficient to look at a few pages and not examine the device properly and thoroughly. This was a case that went to trial and the trial proceeded. Who had access to this device was paramount in our case when they had access, what searches were done, who was using the phone at certain times, who created said adverts, payment cards used for the adverts. Both the client and the complainant’s names were used in said device.”

7. In the case of R v Sereika in 2018, the then Senior Costs Judge, Andrew Gordon-Saker considered a similar case regarding attribution of a mobile telephone and described the issue of the appropriate PPE in relation to images in the following, regularly quoted, passage: “In this particular case, the exercise of that discretion is not easy. On the one hand, the prosecution chose to serve this evidence as an exhibit. The solicitors were under a professional obligation to consider it. Given the nature of the defence, that the phone was used by others, it is not difficult to conclude that the solicitors would have wished to look for photographs indicating that use. On the other hand, it is unlikely that the vast majority of those photographs would have been relevant to that task. It would seem unlikely that the solicitors will have looked in detail at each of the 20,608 images served on this. Most would have required a glance or less. In short, it is clear that the evidence on the phone was central to the case against Sereika and his assertion that others had used the phone was central to his defence. The solicitors were required to consider the phone evidence carefully. However, much of the evidence on the phone would not require consideration. It seems to me that in these circumstances there is no reason why a Determining Officer (or costs judge on appeal), should not take a broad approach and conclude that as only a proportion of the images may be of real relevance to the case, only that proportion should be included in the page count. Inevitably that will be nothing more than “rough justice, in the sense of being compounded of much sensible approximation”: Per Russell LJ in re Eastwood [1974] 3 WLR 454 at 458. But that is the nature of the assessment of costs.”

8. This case similarly relates to the question of attribution of the phone. Consequently, the 5% allowed by the Costs Judge, which is the amount originally allowed by the determining officer, is of some relevance. The determining officer here has been persuaded to double that percentage to 10% following the further submissions of the solicitors.

9. It seems to me that the one significant difference to the case of Sereika is the defendant’s positive case that he was without the phone for several hours each day whilst working in the construction industry. This would enable enquiries to be made of the phone, including when images were made, and not just what the images were, in a way that seems to me to be different from most questions of attribution. They tend to be as described in Sereika and are rather more general in nature i.e. that the defendant was not the only person with access to the phone in question. In support of that positive case, the defence here would be able to make specific enquiries of other parts of the phone to attempt to garner evidence as to who was using it at a particular time.

10. However, there is a limit to the extent to which this justifies reviewing the images. Fundamentally, it was the defendant’s word against the claimant’s as to who used the phone to communicate with others. Examples which supported that evidence would, it seems to me, be likely to be just that, i.e. supportive rather than determinative.

11. There is also the point that phones are preloaded with some images and automatically collect them during ordinary use of the phone. It seems to me to be virtually impossible in any case to argue that all of the images on a phone need to be considered in the manner required to qualify them as being the equivalent of paper PPE.

12. It is for the solicitor to persuade the determining officer of the relevance and importance of the images, and the extent of them that need to be considered as PPE. Nevertheless, there seems to be something artificial in expecting the solicitor to point to each and every page out of 4,500 (in this case) in order to demonstrate that the allowance made by the determining officer (who, understandably, did not cite which pages made up the 450 ultimately allowed) is not a reasonable allowance. It is one thing to cite specific examples to demonstrate a point, but it is quite another to suggest that each and every page would have to be specified.

13. Consequently, like Costs Judge Gordon-Saker in Sereika , and indeed the determining officer here, my task is to consider a broad approximation in the shape of a percentage of the pages of images. Given the positive case I have referred to above, it seems to me that more images would need to be considered than might otherwise be the case and, as such, I consider that 25% of the pages of images should be used to calculate the graduated fee in this case.

14. The second part of this appeal is a determination of exactly what a “page” should be. In practice, the PDF will set out a number of small “thumbnail” images in the region of 10 per page. In the third note, the solicitors describe the issue in this way: “The images begin on page 7,862 and end on page 12,289. As part of our case, we considered each image. In regard to claiming 4,427 pages, each of these pages contains 10 images. Each image is a thumbnail. We did not claim each image as a separate page, which is what we would usually do. As we need to look at each image to ascertain if it is relevant to our case, we do not have this knowledge until we consider each image and cross reference it against other elements of the case, i.e. dates, times. Had we claimed each image as a separate page we would be claiming 44,270 pages. We streamlined the pages so that we were not claiming a large amount of pages. We decreased the number of pages which we submit is a significant number so that our claim was reasonable. Therefore, to be penalised and to allow only for 5% which is 225 pages in our submission is wholly unfair. If the LAA would like to take the approach they have of allowing a random percentage that it must be applied to 44,270 images.”

15. At the time of the submission, only 5% of the images had been allowed as the “random percentage” by the determining officer, but that has been increased by both the determining officer and subsequently by myself on this appeal.

16. There have been numerous decisions regarding what is a “page” for the purposes of the graduated fee schemes since they rely on the number of pages to provide some indication of the weight of the case. The movement to a digital age, as has often been said, has caused difficulties with continuing to apply the concept of a page. Therefore, there is no doubt that there is some artificiality in the method of calculation that has come about. Nevertheless, there is a common thread of attempting to allow electronic evidence in a manner which is essentially equivalent to an A4 sized piece of paper and which, historically, the Crown would have used to serve the prosecution evidence.

17. Bearing this in mind, it seems to me that the equivalent of a full page here is the one which contains 10 thumbnail images and is not equivalent to each individual image. There is, to some extent, a relationship between the percentage of the overall total of pages being allowed and the number of images per page. It seems to me that, having allowed a quarter of the pages of images in this decision, then this reasonably allows for the consideration of the thumbnail images, many of which will be plainly irrelevant without further investigation.

18. I therefore conclude that the PPE in respect of the images section of the telephone download should be allowed at 1,125 pages rather than the 450 pages which have been allowed to date. To this extent, the appeal has been successful and the solicitors are entitled to their costs of the appeal.