Riley Hayes Solicitors v The Lord Chancellor

For remuneration purposes, a Newton hearing must actually take place. Listing a Newton hearing, or undertaking preparatory work for one, is insufficient. A Newton hearing may occur without live evidence, without being formally listed as such, and without a ruling on disputed facts where the issue has been opened and addressed during the hearing. For the third form of Newton hearing, there must be a substantial conflict between the parties. A late query about factual matters, resolved through discussion with an investigating officer outside the judge’s presence, does not convert an ordinary sentencing hearing into a Newton hearing.

Riley Hayes Solicitors appealed under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the Determining Officer’s assessment of the fee payable for representing Mitchell Davies. Davies had initially pleaded not guilty to two conspiracy charges but later pleaded guilty. At sentencing, a dispute arose about the valuation of property involved in the offences. The issue was resolved after discussions with the officer in the case, without evidence being called or submissions being made before the judge on the disputed valuation.

The central issue was whether that sentencing hearing was a Newton hearing, so that the fee was calculated as a trial fee under Schedule 2, rather than as a cracked-trial fee.

1. Appeal dismissed. The Determining Officer was correct to conclude that the relevant hearing was not a Newton hearing in any meaningful sense. There was no order as to the costs of the appeal.
2. Under Schedule 2, paragraph 2(4) of the Criminal Legal Aid (Remuneration) Regulations 2013, where a Newton hearing takes place, the case is treated as having gone to trial. The requirement is that the hearing must actually take place. It is insufficient that a Newton hearing was merely listed or that preparatory work was undertaken for it, as illustrated by R v Stafi (SCCO Ref 448/18).
3. The authorities recognise that a Newton hearing may take place without live evidence, as in R v Hoda (SCCO Ref 11/15), and may take place without being listed as a Newton hearing, as in R v Makengele (SCCO Ref SC-2019-CRI-0000072). A hearing may also qualify where the disputed issue has been opened and submissions made, even though the judge ultimately does not need to rule on it, as in R v Asseum (SCCO Ref 194/18).
4. The third form of Newton hearing described in R v Newton 77 Cr. App. R. 13 CA requires a substantial conflict between the parties. The Determining Officer may examine whether a Newton hearing occurred in a meaningful sense, consistent with R v Huang (SCCO Ref SC-2019-CRI-000057). A standard sentencing hearing does not become a Newton hearing merely because an issue is raised late and discussed.
5. Here, the hearing was not listed as a Newton hearing. The defendant questioned the valuation of property, but the matter was resolved through discussion with the officer in the case outside court and was not determined by the judge during the hearing. The issue was therefore a query rather than a substantial conflict requiring resolution. Treating such events as a Newton hearing would distort the remuneration scheme.

• Senior Courts Costs Office: The appeal under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 was dismissed. The judgment appealed from was the Determining Officer’s assessment of the remuneration fee; no citation for that decision was stated.