Underwood & Ors, R v

A Newton hearing is appropriate only where a defendant’s factual basis for a guilty plea raises a disputed fact which may materially affect sentence. The judge is not bound by an agreed basis of plea and may require evidence, including evidence from the defendant, before determining the facts.

The procedure cannot determine whether a defendant committed a distinct criminal offence, since that issue requires a jury’s verdict. Findings must also remain consistent with accepted pleas. An unsuccessful and unfounded factual challenge may reduce, and exceptionally remove, credit for a guilty plea. A sentence must not reflect broader offending which is not charged or is inconsistent with the accepted basis of plea.

Four sentencing challenges were heard together so that the court could give guidance on Newton hearings.

• Underwood had received five years’ imprisonment after guilty pleas to two offences of offering to supply class A drugs.
• Arobieke had received a total of six years’ imprisonment for prolonged harassment of young men and witness intimidation.
• Khan had received six years’ imprisonment for robbery, followed by a consecutive month for breach of licence.
• Connors had received eight years’ detention in a young offender institution for conspiracy to burgle and rob elderly householders.

The central issue was how a sentencing court should deal with a guilty plea advanced on a factual basis which differs from the prosecution case and may affect sentence.

1. The court allowed the sentence appeals of Underwood, Khan and Connors, and refused Arobieke’s renewed application for leave to appeal.

2. A sentencing judge’s duty is to sentence on facts which accurately reflect the individual case. Where a factual dispute may affect sentence, the defence should identify it and give the Crown written notice of its proposed basis of plea. The Crown may agree it, reject it, or state that it lacks evidence to contradict it. Lack of contradictory evidence does not require either the Crown or the judge to accept assertions which depend solely on the defendant’s account.

3. Neither an agreement between advocates nor an agreed basis of plea binds the judge. The judge may require relevant evidence and determine the disputed facts, applying the ordinary burden and standard of proof and giving reasons. The procedure derives from R v Newton (1983) 77 Cr App R 13.

4. A Newton hearing is unsuitable where the dispute is whether the defendant committed a distinct offence. For example, disputed proof of the intent required by section 18 of the Offences against the Person Act 1861 must be determined by a jury. The judge must not make findings inconsistent with accepted pleas, and should not treat one co-defendant’s written basis of plea as evidence against another. The procedure is usually unnecessary for immaterial disputes, mitigation alone, or a case which is plainly untenable.

5. Credit for a guilty plea is not reduced if the defendant succeeds on the disputed issues. It may be reduced where the defendant is disbelieved, causes unjustified distress by an unfounded challenge, or demonstrates neither insight nor remorse. In an exceptional case, the hearing may wholly dissipate the usual credit.

6. Underwood was sentenced on a basis of broader drug offending than the two accepted counts permitted, and on inadmissible material from co-defendants’ plea documents. His sentence was reduced to three years and six months. Khan was entitled to be sentenced on his plea basis because the sentencing judge had not openly rejected it, found it untenable, or allowed evidence upon it. His robbery sentence was reduced to four years; the consecutive licence sentence remained. Connors’s sentence was reduced to six years to reflect his youth, limited role and older co-conspirators. Arobieke’s sentence remained appropriate and consistent with his accepted pleas.

• Court of Appeal (Criminal Division): In [2004] EWCA Crim 2256, the court reduced the sentences imposed on Underwood, Khan and Connors, and refused Arobieke’s renewed application for leave to appeal against sentence.
• Crown Court: Underwood was sentenced at Peterborough; Arobieke at Preston; Khan at Birmingham; and Connors at Leeds. Each challenge concerned sentence following guilty pleas.