R v Cobb

A sentencing hearing is a Newton hearing in substance only where the court must resolve a material dispute about facts relevant to sentence. The label applied to the hearing, the giving of formal evidence, or a judge’s express reference to a particular factual matter is not determinative. Submissions which merely seek to reduce a defendant’s culpability within the sentencing guidelines ordinarily amount to mitigation. Where the alleged factual dispute is immaterial to sentence, the hearing remains a sentencing hearing with pleas in mitigation. The burden lies on the party seeking a trial fee to establish that a Newton hearing took place.

Carson Kaye Solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013. The determining officer assessed the litigators graduated fee by reference to a cracked trial rather than a trial.

The underlying defendant had pleaded guilty to two counts and was no longer required to face trial on a third count. At sentence, the advocates made submissions on the defendant’s role and basis of plea. No evidence was formally called. The issue was whether those submissions constituted a Newton hearing in substance, so as to attract a trial fee.

1. Appeal dismissed. The determining officer was correct to assess the fee on the basis of a cracked trial followed by sentencing with pleas in mitigation.
2. The substance of the hearing is decisive. A Newton hearing may occur without formal evidence or an express description of the hearing as a Newton hearing. Conversely, the mere existence of competing submissions does not establish one.
3. The principle identified in R v Robert John Newton is that, where there is considerable disagreement about material facts, the court should adopt the defendant’s version to the extent possible. That principle presupposes a material factual dispute relevant to sentence.
4. In drug conspiracy cases, defendants commonly seek to lessen their involvement. Submissions placing a defendant more favourably on the culpability scale are ordinarily mitigation. They do not become a Newton hearing merely because the prosecution advances a more serious interpretation.
5. Here, the suggested social-supply basis was treated as irrelevant, and the disputed meeting was not the subject of factual findings because its significance did not affect sentence. The appellant therefore failed to discharge the burden of proving that the hearing was a Newton hearing in substance.

The appeal was brought under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the determining officer’s assessment of the litigators graduated fee. The High Court (Senior Court Costs Office) dismissed the appeal.