Gillan v Director of Public Prosecutions

An appeal by way of case stated in criminal proceedings ordinarily lies only from a final decision of the Crown Court. An interlocutory ruling should instead be challenged by judicial review, although such applications will be rare and exceptional.

On committal for sentence, the Crown Court has jurisdiction under the Powers of Criminal Courts (Sentencing) Act 2000 to hold a further Newton hearing where fairness and justice require it. That jurisdiction is discretionary. The court should ordinarily decline to reopen factual findings made by magistrates unless a significant new matter, such as important further evidence, has arisen. The guidance is not an inflexible formula; each case depends on its facts.

The claimant pleaded guilty before magistrates to assault occasioning actual bodily harm, but disputed the factual basis for sentence. The magistrates conducted a Newton hearing, rejected his account and committed him to the Crown Court for sentence.

The Crown Court judge held that he had no power to conduct a second Newton hearing. The claimant challenged that ruling. The High Court treated the hearing as the substantive judicial review and considered whether the Crown Court had jurisdiction to reopen the factual basis for sentence.

1. Procedure and jurisdiction. Mr Justice Forbes, with whom Lord Justice Latham agreed, followed Loade v Director of Public Prosecutions [1990] 1 QB 1052. Section 28(1) of the Supreme Court Act 1981, read in context and against the history of case stated appeals, concerns final decisions. It does not permit an appeal by way of case stated from an interlocutory decision in criminal proceedings. The appropriate route was judicial review under section 29(3), outside the exclusion for matters relating to trial on indictment.

2. The court nevertheless treated the hearing as the substantive judicial review, following the approach adopted in Sunworld Limited v Hammersmith and Fulham LBC [2000] 1 WLR 2102. This enabled the important legal issue to be decided on its merits.

3. Power to hold a fresh Newton hearing. Section 5(1) of the Powers of Criminal Courts (Sentencing) Act 2000 requires the Crown Court to inquire into the circumstances of the case. That language gives the Crown Court jurisdiction to hold a further Newton hearing where fairness and justice require it. The existence of the power does not require a rehearing whenever magistrates have already made findings.

4. The discretion must be exercised judicially, with the touchstone being what is necessary in the interests of fairness and justice. The observations in R v Warley Justices ex parte DPP [1999] 1 WLR 216 were adopted as useful guidance. Ordinarily, reopening should not be allowed unless there has been a significant development or other significant matter, such as important further evidence. That is not an absolute or strict formula, and every case must be considered individually. Munroe v DPP [1988] 152 JP 567 was materially different because the magistrates had not conducted a Newton hearing.

5. There was no feature making a rehearing necessary in the interests of fairness and justice. The Crown Court judge therefore reached the correct result in refusing a fresh Newton hearing, although for the wrong reason. The judicial review application was dismissed. The answer to the modified question was “Yes”: the Crown Court had power to hold a second Newton hearing.

• Crown Court at Winchester: HHJ Hooton ruled that he had no power to conduct a second Newton hearing after the magistrates had determined the factual basis for sentence.
• High Court (Administrative Court): The court treated the matter as the substantive judicial review, held that the Crown Court had jurisdiction but a discretion not to reopen the issue, and dismissed the application. It answered the modified case-stated question affirmatively.