McCreesh & Anor, R. v

Where a defendant pleads guilty on a written factual basis concerning the nature of the offending, and the prosecution materially disputes that basis, fairness ordinarily requires a Newton hearing. The exception is where the judge regards the defendant’s account as incredible on the papers, but the defendant must then have an opportunity to advance evidence or argument and the judge must give reasons for accepting or rejecting the account.

If a judge considers the factual difference immaterial to sentence, the judge must say so clearly and sentence on the defendant’s written basis. A judge cannot refuse a Newton hearing yet resolve the material factual dispute adversely to the defendant on the papers.

The appellants pleaded guilty to conspiracy to contravene section 170(2) of the Customs and Excise Management Act 1979. Their written bases of plea accepted that they knowingly transported laundered rebated fuel, but asserted that they were drivers rather than organisers of the scheme.

The prosecution disputed that limitation. At Bristol Crown Court, the judge declined to hold a Newton hearing but sentenced each appellant to three years’ imprisonment as having an organisational role. The appellants appealed by leave, alleging error in principle and undue disparity with the sentence imposed on a more substantially involved co-defendant. The central issue was whether the judge could reject their written bases without conducting a Newton hearing.

1. The appeals were allowed. The judge erred in sentencing the appellants as organisers after declining to hold a Newton hearing. The prison terms of three years were quashed.
2. Where a defendant’s written basis of plea addresses facts going to the nature of the offending, the prosecution disputes it, and the difference may affect sentence, fairness requires a Newton hearing. A judge may initially regard the defendant’s account as incredible from the papers, but must identify that view, permit the defendant to adduce evidence or make submissions if desired, and give reasons for accepting or rejecting the account. If the judge considers the difference immaterial to sentence, that conclusion must be expressed unambiguously and the defendant must be sentenced on the written basis.
3. Here, the judge did not reject the written bases as incredible after affording the appellants that opportunity. Instead, he made clear that no Newton hearing would occur and that he would decide between the competing accounts on the existing material. In those circumstances fairness required sentence on the written bases. The court followed the analogous error identified in R v West [2007] EWCA Crim 801.
4. On the accepted bases, the appellants’ driving roles remained serious in a large-scale duty-evasion scheme, but did not justify sentence as organisers. Taking account of their good or effectively good character, the delay before sentence, and the promised full guilty-plea credit, the proper custodial term before credit was two years. The court substituted sentences of 16 months’ imprisonment for each appellant, less time spent on remand.

• Court of Appeal (Criminal Division): Allowed the sentence appeals and substituted 16 months’ imprisonment for each appellant: [2010] EWCA Crim 314.
• Bristol Crown Court: HHJ Darwall-Smith sentenced each appellant to three years’ imprisonment on 7 April 2009.