R v James

For a hearing to qualify as a Newton hearing under the graduated fee provisions, the court must conduct a fact-finding exercise relevant to sentence. Live evidence is unnecessary: the judge may determine disputed facts from submissions alone. However, competing submissions about the legal characterisation of undisputed facts do not create a Newton hearing. A sentencing hearing remains a sentencing hearing where the judge is required only to decide the offender’s category or role on the facts already established.

The appellant represented a defendant charged with conspiracy to supply cocaine. After pleading guilty, the defendant advanced a basis of plea, but later withdrew it. At sentence, the prosecution and defence differed on whether his role was significant or leading. The sentencing judge imposed seven years and six months’ imprisonment without making findings on disputed facts. The appellant sought a trial fee, arguing that the hearing was a Newton hearing under the Criminal Legal Aid (Remuneration) Regulations 2013. The determining officer allowed only a cracked trial fee. The issue was whether the sentencing hearing involved the fact-finding exercise required by the Regulations.

1. The appeal was dismissed. The hearing on 6 September 2023 was a sentencing hearing and did not qualify as a Newton hearing for the purposes of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013.
2. The Regulations define a Newton hearing by reference to a hearing at which evidence is heard for the purpose of determining sentence in accordance with R v Newton. The reference does not require live evidence in every case. Consistently with the principles in R v Newton, disputed facts may be determined by the jury, by a judge after hearing evidence, or by a judge after hearing submissions without live evidence (paras [17]-[18]).
3. The essential requirement is a fact-finding exercise for the judge. A Newton hearing may arise where competing factual accounts require findings before sentence. It does not arise where the underlying facts are not materially disputed and the court is asked only to characterise the offender’s role or apply sentencing guidance to those facts (paras [14]-[19]).
4. R v Makengele was distinguishable because the defendant’s importance in the drug distribution network, including the effect of duress, depended on disputed facts which the trial judge had to determine. The present case was closer to R v Shehu and followed the approach summarised in R v O’Hare and Harding, because no factual finding was required (paras [15]-[19]).
5. The competing submissions concerned whether the established role was leading or significant. They did not place alternative factual accounts before the sentencing judge. The appropriate fee was therefore a cracked trial fee (paras [14], [19]-[20]).

• High Court (Senior Court Costs Office): appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 dismissed. The determining officer’s conclusion that the hearing attracted a cracked trial fee was upheld.