R v Anjum

1. This appeal from the Legal Aid Agency (“LAA”)’s Determining Officer concerns a claim for payment under Schedule 1 to the Criminal Legal Aid (Remuneration) Regulations 2013. The relevant Representation Order was made on 13 October 2022. The 2013 Regulations apply (and shall be referred to in this judgment) as in force on that date.

2. Defence advocates such as the Appellant are paid for their work by reference to the Graduated Fee provisions of Schedule 1. The Graduated Fee due is calculated, along with other factors, by reference to the number of served Pages of Prosecution Evidence (“PPE”).

3. The PPE count is subject to a cap (which in this case is 750 pages) but it is open to advocates, in addition to the Graduated Fee calculated by reference to the PPE count, to claim additional payment for “special preparation” and for “consideration of unused material”.

4. The definition of PPE is to be found at paragraph 1, subparagraphs (2)-(5) of Schedule 1: (2) For the purposes of this Schedule, the number of pages of prosecution evidence served on the court must be determined in accordance with sub-paragraphs (3) to (5). (3) The number of pages of prosecution 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 served prosecution documents or which are included in any notice of additional evidence. (4) Subject to sub-paragraph (5), a document served by the prosecution in electronic form is included in the number of pages of prosecution evidence. (5) A documentary or pictorial exhibit which— (a) has been served by the prosecution in electronic form; and (b) has never existed in paper form, is not included within the number of pages of prosecution evidence unless the appropriate officer decides that it would be appropriate to include it in the pages of prosecution evidence taking into account the nature of the document and any other relevant circumstances.”

5. The special preparation provisions are to be found at paragraph 17 of Schedule 1. Insofar as pertinent for the purposes of this appeal, they read as follows: “ 17.— Fees for special preparation (1) This paragraph applies where, in any case on indictment in the Crown Court in respect of which a graduated fee is payable… ... (b) the number of pages of prosecution evidence, as defined and determined in accordance with paragraph 1(2) to (5), exceeds… …(ai) in cases falling within bands 2.1 and 2.2 (terrorism offences), 750… …and the appropriate officer considers it reasonable to make a payment in excess of the graduated fee payable under this Schedule. (2) Where this paragraph applies, a special preparation fee may be paid, in addition to the graduated fee... (3) The amount of the special preparation fee must be calculated… where sub-paragraph (1)(b) applies, from the number of hours which the appropriate officer considers reasonable to read the excess pages… using the hourly fee rates set out in the table following paragraph 24... (5) A trial advocate claiming a special preparation fee must supply such information and documents as may be required by the appropriate officer in support of the claim. (6) In determining a claim under this paragraph, the appropriate officer must take into account all the relevant circumstances of the case, including, where special preparation work has been undertaken by more than one advocate, the benefit of such work to the trial advocate.”

6. Paragraph 17A of Schedule 1 incorporates the payment provisions for consideration of “unused material”, defined at Paragraph 1, subparagraph (1) as “material disclosed pursuant to the prosecutors’ obligations in Part 1 of the Criminal Procedure and Investigations Act 1996 ...”

7. The 1996 Act requires the Prosecution to disclose material which might reasonably be considered capable of undermining the case against a defendant or of assisting the case for a defendant.

8. Paragraph 17A reads: “(1) This paragraph applies in respect of any case on indictment in the Crown Court, in respect of which a graduated fee is payable… (2) In any case to which this paragraph applies, a fee (”the basic consideration fee”) is payable to a trial advocate in respect of the consideration of unused material… whether or not such consideration has actually occurred… (3) This sub-paragraph applies where— (a) a trial advocate has undertaken the consideration of unused material; and (b) the advocate has spent in excess of three hours undertaking that consideration. (4) In a case where sub-paragraph (3) applies— (a) a fee (”the additional fee”) is payable to the trial advocate in addition to the basic consideration fee… (5) The additional fee is payable only where the appropriate officer considers it reasonable to make such a payment. (6) A trial advocate claiming the additional fee must supply such information and documents as may be required by the appropriate officer in support of the claim. (7) In determining whether it is reasonable to pay the additional fee, the appropriate officer must take into account— (a) the reasonableness of the hours claimed in respect of the case taken as a whole; and (b) the reasonableness of the hours claimed in respect of the consideration of the unused material.

9. I have not included in the above extracts from Schedule 1 details of the hourly rates payable, but for present purposes they are the same for special preparation and for consideration of unused material. The Background and the Served Evidence

10. The Appellant represented Nabeela Anjum (“the Defendant”) in the Crown Court at Leeds.

11. The Defendant is the mother of Sameer Anjum, who was tried at Leeds Crown Court for one offence of preparation of acts of terrorism and two offences of dissemination of terrorist publications. Sameer Anjum was 14 years old and living with his family when the offending conduct started.

12. Sameer Anjum was charged jointly with an adult, Al-Arfat Hassan, with the offence of preparation of acts of terrorism. Al-Arfat Hassan was a musical performer living in north London, with a large following on social media.

13. The prosecution accepted that Sameer Anjum had come across the older, charismatic Al-Arfat Hassan on social media; that he had come under the influence of Al-Arfat Hassan; and that there was no evidence that Al-Arfat Hassan and Sameer Anjum had ever met each other physically prior to their arrest.

14. It was however initially alleged by the prosecution that Al-Arfat Hassan and Sameer Anjum had discussed and planned to carry out a joint terror attack, to be carried out at an undefined location at an undefined time.

15. Two jury trials of Sameer Anjum and Al-Arfat Hassan produced no verdict in the case of Sameer Anjum. When their cases were listed for retrial, the prosecution amended the indictment and preferred less serious charges against both defendants.

16. The prosecution now accepted that Sameer Anjum had not intended to carry out any terrorist attack but alleged that from his communications with Al-Arfat Hassan, he had become aware that there was a risk that Al-Arfat Hassan would carry out such an attack and that he had failed to alert the authorities about that risk.

17. Al-Arfat Hassan was ultimately convicted of possessing articles for a terrorist purpose and of possessing terrorist information.

18. Sameer Anjum pleaded guilty to possessing terrorist information and failing to disclose his knowledge or belief as to the terrorist activities of Al-Arfat Hassan.

19. During the investigation into the activities of Sameer Anjum, the Defendant was identified as a person of interest due to a significant volume of messages passing between Sameer Anjum and the Defendant on WhatsApp.

20. The Defendant was indicted on two counts of failing to disclose information about acts of terrorism. The charges related to the information that the prosecution alleged the Defendant had received through her interaction with Sameer Anjum regarding the activities and intentions of Al-Arfat Hassan.

21. It was accepted by the Crown that there was no evidence that the Defendant had ever communicated directly or indirectly with Al-Arfat Hassan. The case against the Defendant was that by December 2021, the Defendant was aware that her son had been radicalised, holding extremist Islamic beliefs and supporting proscribed terrorist groups, and was alarmed by the deepening relationship between Sameer Anjum and Al-Arfat Hassan. The Defendant, said the Crown, became aware on 9 March 2022 that Al-Arfat Hassan had been charged with terrorist offences, but did not disclose to the authorities the information she possessed about his activities.

22. The Defendant pleaded not guilty. A preparatory hearing took place before Mr Justice Jeremy Baker sitting at the Central Criminal Court on 15 December 2023. The full trial before a jury and HHJ Bayliss KC at the Crown Court in Leeds commenced on 17 April 2024 and concluded on 14 May 2024, when the Defendant was convicted by the jury of both counts. Served Evidence and Unused Material

23. The Appellant’s claims for payment, the subject of this appeal, concern telephone download reports. Most of the relevant material appears to have been downloaded from PO/1, the Defendant’s mobile phone.

24. Due to the nature of the offences the Crown’s evidence and disclosure, rather than being uploaded to the Crown Court’s Digital Case System, was supplied to the defence team directly, subject to a strict undertaking not to disclose the relevant material to any third party.

25. It would appear that the Crown served what has been described as a “severed portion” of the download from PO/1 as evidence and disclosed the remainder as unused material. The “severed portion” has been included within the PPE count. There has been some confusion (addressed below) as to the timing of disclosure of the unused material, but that is the gist of it.

26. The Appellant has submitted claims both for special preparation (in respect of the served evidence) and for the consideration of the unused material.

27. In view of the fact that this appeal concerns two parallel claims, it has been necessary for the Appellant to apply for an extension of time, which has been granted. The Special Preparation Claim and the Appellant’s Submissions

28. It is common ground that the basic page count, for the purposes of the special preparation claim, comes to 14,826, that is to say 14,076 pages over the 750 page “cap”. That has to be qualified however by the Determining Officer’s observations as to the content of those pages, most of which are in spreadsheet format, and in particular the fact that the figure of 14,826 includes large numbers of blank pages and of pages wholly or partly comprising obviously irrelevant material.

29. It is firmly established that when deriving a PPE count from such evidence, it is appropriate to reduce it to take account of such blank pages or irrelevant content (Cotter J, The Lord Chancellor v Lam & Meerbux Solicitors [2023] EWHC 1186 (KB).

30. For reviewing this material the Appellant has claimed payment for 257.5 hours of special preparation. The Determining Officer has allowed 100 hours.

31. The Appellant emphasises that the prosecution case was encapsulated almost in its entirety in a timeline that presented a summary of many tens of thousands of messages that passed on numerous electronic devices as between the Defendant and Sameer Anjum on the one hand, and between Sameer Anjum and Al-Arfat Hassan on the other hand.

32. For example, the Crown contended that by the middle of February 2022, the Defendant’s fears were confirmed when she discovered from her son Sameer Anjum that Al-Arfat Hassan was planning to commit a terrorist attack. That assertion was based solely on the interpretation placed by the prosecution on messages passing between Sameer Anjum and Al-Arfat Hassan on the one hand, and between Sameer Anjum and the Defendant on the other hand. By 17 February 2022, the Defendant told Sameer Anjum to stop communicating with Al-Arfat Hassan.

33. The Crown’s timeline was 156 pages in length and exhibited some 2844 messages between 8 April 2021 and 12 March 2022. The prosecution relied upon a very detailed “Sequence of Events” schedule, running to 156 pages with 2,844 rows of information.

34. The issues for the jury centred upon whether the jury could be sure that the communications demonstrated the requisite knowledge on the part of the Defendant and the intent necessary for the alleged terrorism offences to be proved.

35. The defence necessarily had to consider in great detail the material served by the Crown in order to see if the evidence relied upon by the prosecution within various drafts of the timeline properly and fairly reflected the material (both inculpatory and exculpatory) found on these data devices.

36. This entailed reviewing many thousands of messages passing between the Defendant and Sameer Anjum and others to ensure that the material presented to the jury reflected fairly and fully the relationship between the Defendant and her son and the knowledge that the Defendant did or did not have as to his dealings with Al-Arfat Hassan.

37. This work was necessary in order to assess whether to seek to add to or reduce the entries on the Sequence of Events schedule. Virtually the whole trial (both the prosecution case and the defence cases) centred on that schedule, which was subject to extensive revision. At the point of agreement, the defence and prosecution had reviewed at least twelve versions.

38. The presentation of the Defendant’s case also involved an unpicking of all matters capable of demonstrating an interest in research, as opposed to any terrorist intention on the part of Sameer Anjum.

39. Search terms were deployed wherever possible to search this material, but it was impossible to rely on search terms alone. It was necessary to conduct a wider manual search of this material to see what it contained generally.

40. Nor could the use of search terms assist with many images that contained text, because the search terms could not be relied upon to detect the text used in images. All of this meant that the review of the excess PPE was a very lengthy exercise.

41. Even if one assumes, says the Appellant, that one third of the 14,076 pages of evidence were blank, that will still leave 9,384 pages, which at two minutes per page would come to almost 313 hours. The Special Preparation Claim: the Determining Officer’s Decision

42. The Determining Officer identified from the worklog (between 15 August 2023 and 7 February 2024) submitted by the Appellant that 19.5 hours had been spent reviewing the 750 pages that fell within the PPE “cap”, reducing the total claim to 236 hours or, as he pointed out, nearly 6 working weeks (a calculation with which, assuming an eight hour working day and a five-day working week, I agree).

43. Of this, 226 hours (over 5½ working weeks) was spent reviewing the phone material to consider amendments to the Sequence of Events schedule.

44. The Determining Officer requested and obtained access to the served evidence, most of which he found comprised spreadsheets with several columns listing phone numbers, dates and times of correspondence and a column showing the content of messages. The remaining columns were blank or contained metadata of no evident relevance. In addition, many pages were blank, had many empty columns or were entirely comprised of metadata or phone configuration data.

45. In addition, the Determining Officer took the view that a digital analysis approach would have been more accurate and saved time than the manual review undertaken. He considered it much more likely that something would be missed by spending periods of time looking at each individual line rather than by using the knowledge of the case, the pre-existing Schedule of Events and the client’s instructions to fully analyse the raw data through the application of digital search techniques.

46. Using digital search techniques and then reviewing relevant results in more detail should, he concluded, provide a more expedient way to review the material and home in on any relevant information. It is also possible to disregard irrelevant information quickly once the search has been performed, and to review in more depth relevant information yielded by a search.

47. Taking into account the facts of the case and the content and density of the material reviewed, he concluded that a block of 100 hours would be reasonable to undertake any necessary searches on the material, consider the product of those searches and facilitate a broader overview of the material. The Special Preparation Claim: Conclusions

48. The Determining Officer has seen the evidence upon which the special preparation claim is based. I have not, but as I have already observed, I am aware of the problems of the need to make adjustments to a PPE count derived (in this case, as is usual, via a simple “print preview”) from spreadsheets containing large volumes of blank or irrelevant data.

49. I do not find particularly helpful the Appellant’s hypothetical illustration of the time that would have been needed to review the evidence, assuming that one third of the 14,076 pages over the 750 page “cap” were blank. Unlike the Determining Officer, I have no idea of how many of those pages stand to be discounted as wholly or partly blank, or wholly or partly comprised of obviously irrelevant data.

50. The Appellant criticises the Determining Officer’s 100 hours as an arbitrary figure. I do not accept that that criticism is fair, but even if it were an assumed deduction of one third for blank pages would be equally arbitrary.

51. I do however accept the Appellant’s submission to the effect that a keyword search alone was not sufficient, and that it was necessary in addition to undertake a manual review of the evidence.

52. The offences with which the Defendant was charged were of having information which she knew or believed might be of material assistance in preventing the commission of an act of terrorism.

53. According to the Defendant’s case on appeal, the timeline was littered repeatedly with attempts by the Defendant to moderate her son’s behaviour and asking him to stop engaging in inflammatory behaviour that she believed was designed to infuriate her.

54. I accept that, in order to put into context what the Defendant was said to know or understand about the activities of Sameer Anjum and Al-Arfat Hassan, it was necessary for the defence team to analyse the nuances of the relationship between the Defendant and her son, so as to identify for example how much of what he said she believed to be true.

55. For that reason, it seems to me that the methodology employed by the Appellant, which was to supplement a keyword-based search with a manual analysis, was an appropriate one.

56. The difficulty is in knowing how to allow for this, given that I am not in a position to differ from the Determining Officer’s conclusions as to the amount of relevant content in the 14,076 pages upon which the claim is based.

57. Doing the best I can on very limited information, and taking the Determining Officer’s figure of 100 hours as appropriate for an analysis base only on keyword searches, I can allow another 90 hours, to bring the total allowance for this claim to 190 hours. The Claim for Considering Unused Material and the Appellant’s Submissions

58. The Appellant says that the Crown disclosed to the defence as unused material the entire download from exhibit PO/1, additional to the “severed portion” already served in evidence.

59. There has been some apparent confusion about the date of delivery to the defence team of the complete download from PO/1. The CPS has advised the Determining Officer that disclosure of the complete download did not take place until after the trial, for the purposes of an appeal. On the evidence I have seen, including contemporaneous correspondence, that is incorrect: the complete download was available to the defence by 24 January 2024.

60. The defence, says the Appellant, needed to analyse the whole download in order to identify any additional material to be included in the trial timeline and/or to be deployed at trial independently of the timeline.

61. The disclosed data files were so large that the defence had to download Cellebrite Reader software in order to analyse them. On that analysis, exhibit PO/1 was found to contain (amongst much other material) 1,164 lines of call logs ranging between 22 March 2020 and 18 March 2022; 522 message chats between the Defendant and various others including Sameer Anjum and other family members, from 29 August 2013 to 18 March 2022; 118,033 WhatsApp messages and/or notifications between the Defendant and others; and 1,860 contact details.

62. The formatting of the material is such, says the Appellant, that it does not lend itself to a page count.

63. This material required analysis and consideration for the same reasons that the served evidence required analysis and consideration. The Appellant claims 131.5 hours’ work to that end and, as with the special preparation claim, has produced a day by day worklog in support of the claim. Nothing has been allowed. The Claim for Considering Unused Material: the Determining Officer’s Decision

64. The primary reason for the Determining Officer’s rejection of the “unused” claim in its entirely appears to be the CPS’s statement to the effect that the unused part of PO/1 was not disclosed until the appeal stage. If that statement were correct, it would follow that the work reviewing it does not fall within the scope of the relevant Representation Order, but as I have said it appears to be incorrect.

65. That aside, I have a day by day worklog, presented by the Appellant as leading counsel, of work undertaken by him on the unused material between 12 February and 27 March 2024. It did not come from nowhere.

66. The Determining Officer also says that he has not been able to review the unused portion of PO/1: given that he was apparently sent a link to the unused material by the CPS, the reasons for his saying so are unclear to me. The Claim for Considering Unused Material: Conclusions

67. Under the circumstances I cannot see that the Appellant can be expected to do more to substantiate his “unused material” claim, the essential logic of which is as sound as the claim for special preparation. Based on such evidence as I have, it seems to me that an injustice would be done if this part of the appeal were to be dismissed in its entirety.

68. I had considered allowing the claim on a roughly pro rata basis to the special preparation claim, but I have so little to go on that a more conservative approach is called for.

69. Doing the best that I can, I can allow 80 hours for this work. Summary of Conclusions

70. In addition to the 100 hours allowed by the Determining Officer I have allowed a further 90 hours’ special preparation, to bring the total allowed to 190 hours against the 257.5 hours claimed.

71. The Determining Officer has disallowed in its entirety the Appellants claim for 131.5 hours’ work on unused material. I have allowed 80 hours.

72. The appeal succeeds to that extent.