R v O'Hare & Anor

For a Newton Hearing to qualify as a trial under the graduated-fee provisions, the sentencing judge must undertake a fact-finding exercise concerning disputed facts. Live evidence is unnecessary: the judge may decide the issue after hearing submissions. A dispute and submissions alone do not suffice. Nor does an observation about the evidence amount to a finding of fact unless the judge actually resolves the disputed issue. Where subsequent concessions remove any material sentencing dispute requiring determination, no Newton Hearing has taken place for remuneration purposes.

Cobleys Solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013. It represented Craig O'Hare and Nathan Harding in Crown Court proceedings. After initially entering not guilty pleas, both defendants pleaded guilty following discussions about the interpretation of text messages concerning the proposed supply of drugs.

The Appellant claimed a trial fee, arguing that the judge had conducted a Newton Hearing by considering submissions on whether Craig O'Hare had actually supplied adulterant. The Determining Officer awarded a cracked trial fee. The issue was whether the judge had carried out the required fact-finding exercise.

1. The appeal was dismissed. Under Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013, a Newton Hearing is a hearing at which evidence is heard for the purpose of determining sentence in accordance with R v Newton.
2. Live evidence is not essential. Consistently with the principles in R v Newton (1983) 77 Cr. App. R. 13, disputed facts may be determined by the jury, by the judge after hearing evidence, or by the judge after hearing submissions without live evidence.
3. The essential requirement is a fact-finding exercise for the judge to conduct. It is not enough that counsel identify a dispute, invite the judge to resolve it, or make submissions on the interpretation of documentary evidence.
4. On the transcript, HHJ Flewitt KC expressly declined at that stage to say that a Newton Hearing was required. His observation that there might be little difference between proving that the defendant was about to act and proving that he had acted was only an observation. It was not a finding on disputed facts.
5. The Crown’s subsequent concessions meant that the case no longer involved a material sentencing difference dependent on a judicial finding. The appeal therefore failed and was dismissed.

• Determining Officer — concluded that the appropriate remuneration was a cracked trial fee.
• High Court (Senior Court Costs Office) — dismissed the appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013.