R v Williams

Whether a Newton hearing took place depends on what occurred, not merely on whether such a hearing was listed. A hearing qualifies where the judge must resolve disputed factual issues relevant to sentence. Live evidence is unnecessary: the dispute may be determined from submissions and other material. A hearing does not qualify where the judge simply draws factual conclusions from an earlier trial, or where the only issue is the application of sentencing guidelines to undisputed facts. The decisive question is whether the sentencing judge was called upon to make factual findings informing the sentence.

Black & Co appealed against the Legal Aid Agency’s determination that only a cracked trial fee was payable for representing the defendant in criminal proceedings. The appeal concerned the graduated fee provisions applicable under the Criminal Legal Aid (Remuneration) Regulations 2013.

The defendant had pleaded guilty to two counts shortly before trial. At sentencing, the prosecution and defence advanced materially different factual accounts concerning his role, the quantity of cocaine involved and his relationship with another offender. The issue was whether the sentencing hearing was a Newton hearing for the purposes of Schedule 2, so that a trial fee rather than a cracked trial fee was payable.

1. The appeal was allowed. The Appellant was entitled to the appropriate additional payment, together with £750 plus VAT for costs and the £100 paid on appeal.
2. Under Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013, a Newton hearing is a hearing at which evidence is heard for sentencing purposes in accordance with the principles of R v Robert John Newton. Those principles recognise three possible forms: disputed facts may be determined by a jury; the judge may hear evidence and determine them; or the judge may hear no live evidence and determine them from submissions.
3. The reference to evidence does not require live evidence. The essential feature is a fact-finding exercise for the judge. The question is whether a Newton hearing actually took place, rather than whether one was listed.
4. A Newton hearing does not arise where the sentencing judge draws factual conclusions entirely from a previous trial, or where no factual dispute requires resolution and the issue is only the application of sentencing guidelines to undisputed facts.
5. Here, the evidence was undisputed but the factual conclusions were not. The judge had to determine the defendant’s role, the quantity of cocaine involved, whether he was another offender’s right-hand man, and whether he supplied cocaine commercially. Those findings were directly relevant to sentence. The hearing was therefore a Newton hearing, and the Appellant was entitled to remuneration accordingly.

The appeal was brought under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the Legal Aid Agency Determining Officer’s decision that only a cracked trial fee was payable. The High Court (Senior Court Costs Office) allowed the appeal and directed payment of the appropriate additional amount.