R v Smiley

For a Newton Hearing to qualify under the Graduated Fee provisions, the judge must undertake a fact-finding exercise concerning disputed sentencing facts. Live evidence is not essential. Submissions alone may suffice where the judge hears them in order to resolve the factual dispute and reaches a conclusion. Preliminary submissions about whether a Newton Hearing should take place do not amount to such a hearing where the judge is never required to determine the facts.

Solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against a determination that they were entitled to a cracked trial fee rather than a trial fee. The Defendant had pleaded guilty to drug offences but initially disputed the extent of his supply. Counsel raised the possibility of a Newton Hearing, but, after discussion and further advice, the Defendant accepted the prosecution’s factual case. No Newton Hearing took place and the matter was adjourned for a pre-sentence report. The issue was whether the events constituted a Newton Hearing under Schedule 2.

1. The appeal was dismissed. The applicable provisions were those in force when the Representation Order was made on 24 September 2021.

2. The definition of Newton Hearing in Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013 refers to the principles of R v Newton. Those principles recognise three possible procedures: determination by a jury, a judicial hearing of evidence, or a judicial determination based on submissions without live evidence.

3. Accordingly, live evidence is not a necessary condition. The essential requirement is that the judge must be called upon to carry out a fact-finding exercise for sentencing purposes.

4. The case was distinguishable from R v Makengele. Although counsel made submissions about the possibility of a Newton Hearing, those submissions concerned whether such a hearing should be held at all. The judge made observations about the evidence but was not required to determine the disputed facts. The Crown’s later, limited submissions concerned sentencing guidelines on which the parties did not disagree.

5. The Defendant’s change of position avoided the factual hearing. The solicitors were therefore entitled only to a cracked trial fee.

This was an appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the Determining Officer’s decision awarding a cracked trial fee. The High Court dismissed the appeal.