R v Tyrone Barton

For LGFS purposes, a Newton hearing may exist even where the case was listed for sentence and no live evidence was called. The decisive question is whether the court determined disputed facts relevant to sentence, rather than merely resolving competing submissions or inferences on facts that were substantially agreed.

Where the underlying facts are agreed and the dispute concerns their emphasis or characterisation, the hearing is not a Newton hearing and is paid as a cracked trial. The classification depends on the substance of the hearing, not its listing or length.

EBR Attridge LLP appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the Determining Officer’s decision on an LGFS claim.

The appeal concerned a four-day sentencing hearing following the defendant’s guilty pleas. No evidence was heard, but the parties made extensive submissions concerning the defendant’s role in a drugs conspiracy. The issue was whether those submissions required the court to determine disputed facts, so that the hearing qualified as a Newton hearing and was remunerated as a trial, or whether it was a sentencing hearing involving agreed facts and competing characterisations, remunerated as a cracked trial.

1. The appeal was dismissed. The hearing on 29 June 2023 was correctly classified and paid as a cracked trial.
2. Paragraph 1 of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013 defines a Newton hearing by reference to a hearing at which evidence is heard for sentencing purposes in accordance with R v Newton. The case guidance establishes that a Newton hearing may nevertheless be found where no live evidence is called, including where evidence is read or contrasting submissions are made.
3. The absence of live evidence and the fact that the hearing was listed for sentence are therefore relevant but not determinative. The substance of the court’s task must be examined.
4. The material distinction is between a court determining disputed facts and a court resolving competing inferences, emphases or conclusions drawn from facts which are effectively agreed. Only the former engages the Newton hearing provisions. The distinction identified in R v Shehu was applicable.
5. Although the judge resolved competing submissions concerning the defendant’s role before sentencing him, the core underlying facts were effectively agreed. The dispute concerned the characterisation and emphasis of that role, including whether the activity was commercial in scale. It remained a matter of submission rather than an issue of fact requiring litigation.
6. The length and complexity of the hearing did not alter that conclusion. The hearing was not properly classified as a Newton hearing or, consequently, as a trial for LGFS purposes.

• Senior Courts Costs Office: The Determining Officer allowed remuneration for the hearing as a cracked trial. The High Court dismissed the appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013.