George, R. v

A sentencing judge must not accept an artificial factual basis for a guilty plea. Where the papers suggest that the proposed basis may not reflect what occurred, the judge should state that provisional view and require a Newton hearing. This does not itself demonstrate apparent bias.

Under Article 6(1) of the Convention, the question is whether a fair-minded and informed observer, considering the circumstances as a whole, would see a real possibility of bias. Robust preliminary comments and a judge's decision to retain the case will not satisfy that test where the disputed facts are later resolved at a fair hearing on the evidence.

The appellant pleaded guilty at Cardiff Crown Court to possessing diamorphine with intent to supply and to a further drugs offence. He maintained that the diamorphine was for personal use and sharing with friends, rather than commercial street supply.

The sentencing judge rejected that basis of plea, directed a Newton hearing, and later found that the appellant was a commercial street dealer. The judge imposed five years’ imprisonment. The appellant appealed against sentence, contending that the judge’s earlier comments, including his description of the proposed basis as artificial, created apparent bias contrary to Article 6(1) of the Convention.

1. Appeal dismissed. The court applied the apparent-bias test in R v Porter & McGill [2002] 2 AC 357. The issue was whether a fair-minded and informed observer, having considered all the circumstances, would conclude that there was a real possibility that the tribunal was biased.

2. A sentencing judge must decide whether a proposed basis of plea is acceptable. If, on reading the papers, it appears artificial, the judge is bound to say so despite agreement between prosecution and defence. The judge’s view at that stage is provisional. A Newton hearing is the means by which the conflict between the written evidence and the offender’s account is resolved. The basis may be rejected only if, after hearing the evidence, the court is sure that it has not been made out.

3. The judge’s robust language did no more than express his provisional assessment that the appellant’s account appeared unlikely on the papers. The written evidence materially differed from that account. The subsequent Newton hearing was lengthy and fairly conducted, and the judge carefully analysed the evidence before making findings.

4. Considered as a whole, including the judge’s decision to retain the hearing, the sequence disclosed no real possibility of bias. The sentence therefore stood.

• Court of Appeal (Criminal Division) — dismissed the appeal against sentence: [2005] EWCA Crim 2813.
• Cardiff Crown Court — following a Newton hearing, sentenced the appellant to five years’ imprisonment for possession of diamorphine with intent to supply; no citation stated.