Thomas Schofield v The Lord Chancellor

For remuneration purposes, a Newton hearing requires the court to hear evidence resolving factual issues relevant to sentence. A guilty plea followed by sentencing does not become a Newton hearing merely because the judge makes observations about the defendant or the offending. The court must examine what actually happened, including the court record and the nature of the submissions and evidence. Where no Newton hearing is established, remuneration is assessed on the basis of a cracked trial.

The appellant advocate represented a defendant charged with offences involving the evasion, purchase and keeping of ivory. After the case was listed for trial, the defendant pleaded guilty to all counts following discussions about sentencing and was sentenced the following day. The appellant claimed a two-day trial fee, contending that factual issues had been resolved at a Newton hearing. The determining officer allowed only a cracked-trial fee.

The appeal concerned whether the sentencing proceedings amounted to a Newton hearing for the purposes of the Criminal Legal Aid (Remuneration) Regulations 2013.

Appeal dismissed. There was no order as to the costs of the appeal.

1. Under Schedule 2, Part 1, paragraph 2(4) of the Criminal Legal Aid (Remuneration) Regulations 2013, a case is treated as having gone to trial where a Newton hearing takes place. The length of the trial is then the combined length of the main hearing and the Newton hearing.
2. A Newton hearing requires evidence to be heard for the purpose of determining sentence in accordance with the principles identified in R v Newton (1982) 77 Cr. App. R. 13 CA. Unless factual issues were resolved at the sentencing hearing, the criteria are not met and remuneration on the basis of a cracked trial is appropriate.
3. The court must consider what actually happened. The absence of a formal listing for a Newton hearing is not decisive, but it makes the contemporaneous record and the substance of the hearing particularly important. The approach in R v Makengele [2019] SCCO Ref SC-2019-CRI-000072 was distinguished because there was no evidence here of extensive submissions, the court record showed no more than a short period of mitigation, and the sentencing judge did not treat the hearing as a trial of any issue.
4. The material relied on by the appellant did not establish factual findings. The descriptions of the defendant’s interest in ivory and his lack of association with elephant killing were observations or statements of the obvious, rather than findings resolving disputed factual issues. The appeal was accordingly dismissed.

The judgment records an appeal against the determining officer’s decision to allow remuneration on the basis of a cracked trial rather than a trial fee. The appeal was dismissed by the High Court (Senior Courts Costs Office).