R v Shehu

For the purposes of the Graduated Fee provisions, a Newton hearing requires the resolution of disputed facts relevant to sentence. A judge must therefore be called upon to make one or more findings of fact. The fact that prosecution and defence make submissions about the appropriate sentencing guideline category does not, without a factual dispute, create a Newton hearing. Live evidence is not essential: the principles of R v Newton include determination by a jury, findings after hearing evidence, and findings based only on counsel’s submissions. Applying sentencing guidelines to undisputed facts remains a sentencing hearing.

Harris Solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013. The appeal concerned the fee payable for representing Revi Shehu after his guilty plea. The appellant claimed a trial fee on the basis that a hearing on 2 September 2022 was a Newton hearing. The determining officer treated it as a guilty plea case. The central issue was whether the sentencing judge had resolved disputed facts, or had merely applied the sentencing guidelines to undisputed facts.

1. The appeal was dismissed. The hearing on 2 September 2022 was a sentencing hearing, not a Newton hearing.

2. Under Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013, a Newton hearing is identified by reference to the principles of R v Newton. Those principles recognise three forms of hearing: factual disputes may be determined by a jury; a judge may hear evidence and make findings; or a judge may hear submissions without live evidence and make findings.

3. Live evidence is therefore not a necessary condition. The essential requirement is that the judge is called upon to resolve a factual dispute relevant to the sentence by making a finding or findings of fact.

4. On the evidence and transcript, the defendant’s role in the cannabis operation was not factually disputed. The sentencing judge instead decided whether the undisputed conduct fell within the sentencing-guideline category of a significant role. The judge’s express conclusion that the defendant had played a significant role resulted from applying the guidelines to established facts, rather than resolving disputed facts.

5. Because no Newton hearing took place, the provisions treating the case as having gone to trial and excluding the cracked-trial and guilty-plea provisions did not apply. The appellant was consequently entitled only to the fee appropriate to a guilty plea.

• Senior Courts Costs Office: the appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 was dismissed. The Determining Officer’s treatment of the matter as attracting the guilty-plea fee was upheld.