R v Adeniji

For remuneration purposes, a Newton hearing requires a material factual dispute which the sentencing judge must determine before passing sentence. Submissions about the significance or categorisation of undisputed evidence may resemble mitigation and do not, without more, establish a Newton hearing.

The litigator bears the burden of showing that the relevant threshold is met. Compelling evidence that the parties and judge treated the hearing as a Newton hearing, or a clear material factual issue requiring determination, will ordinarily be necessary. A judge’s consideration of undisputed evidence and conclusion about the seriousness or role of offending is insufficient where the judge regarded the exercise as ordinary sentencing submissions.

Faradays Solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the determining officer’s calculation of a litigator’s graduated fee on the basis of a cracked trial rather than a Newton hearing.

The defendant had pleaded guilty to one count of supplying Class B drugs and provided a basis of plea that he supplied cannabis mainly within his social circle. The prosecution disputed the suggested level of dealing, but the underlying telephone messages were accepted as undisputed. The sentencing judge heard submissions, determined the defendant’s role and sentenced on the basis of his plea. The central issue was whether that hearing constituted a Newton hearing for remuneration purposes.

1. Appeal dismissed. The determining officer correctly treated the case as a cracked trial followed by a sentencing hearing.
2. A Newton hearing exists to establish facts material to sentence. The authorities recognise that disputed facts may be resolved by a jury, by the judge hearing evidence, or, unusually, by submissions alone. The submission-only procedure remains a Newton hearing where the parties dispute material facts and the judge must determine them.
3. The present appeal concerned a different question: whether the hearing involved disputed facts at all and, if so, whether they were material to sentence. That question justified a demanding evidential threshold because submissions concerning the categorisation of undisputed evidence may be indistinguishable from mitigation.
4. The judge had confirmed that there was no dispute about the underlying telephone messages. The dispute concerned the conclusions to be drawn from them and the appropriate role category. The judge expressly considered that no Newton hearing was necessary and that counsel should make submissions about where the offending fell for sentencing purposes.
5. Although the exercise involved more consideration than the entirely agreed facts in R v Shehu, it did not involve determination of a material factual dispute. The judge sentenced on the basis of the defendant’s plea and treated the defendant as being at the lower end of the significant-role category.
6. The later digital case-system annotation describing the matter as listed for sentence/Newton did not alter the substance of the hearing. The appeal was therefore dismissed.

The judgment records an appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the determining officer’s calculation of the graduated fee. The High Court (Senior Court Costs Office) dismissed the appeal.