R v Saleha Saed

A Newton hearing may take place without live evidence, without being listed under that name, and through submissions on evidence already before the sentencing court. The essential question is whether the court had to determine a substantive dispute of relevant fact, rather than merely choose between competing interpretations or inferences from substantially undisputed facts. A Newton hearing is established where disputed factual findings materially affect the sentencing category or sentence. The assessment is fact-sensitive and must be made by examining what occurred at the hearing. Where those criteria are met, the case is treated as having gone to trial for criminal legal aid remuneration.

The appellant, the defendant’s solicitors, appealed against a determination awarding the fee for a cracked trial rather than a trial. The defendant had pleaded guilty to drug-supply and exploitation offences. At sentencing, the parties disputed her role, culpability, the applicable sentencing category and aspects of the drug quantity. No separate Newton hearing was listed and no live evidence was called, but the sentencing judge considered the evidence and made findings before imposing sentence.

The central issue was whether the sentencing hearing constituted a Newton hearing for the purposes of the Criminal Legal Aid (Remuneration) Regulations 2013.

1. The appeal succeeded. The appellant was to be remunerated on the basis of a trial rather than a cracked trial. The respondent was ordered to pay £350 plus VAT for Mr Carse’s fees and the £100 appeal fee.

2. It was common ground that a hearing is not prevented from being a Newton hearing because it was not listed or described as one. Live evidence is also not essential. The court must examine what factually occurred.

3. The relevant distinction, adopted from R v Badibanga and R v Sheaq, is between a court determining substantive disputed facts and a court choosing between competing interpretations or inferences from undisputed facts. The former constitutes a Newton hearing; the latter does not. The determination is fact-sensitive.

4. The sentencing judge had considered conflicting material, including expert evidence, and made findings about the defendant’s role and the appropriate category for the drug offences. The distinction between Category 1 and Category 2 involved materially different sentencing consequences. The sentence imposed was substantially below the starting point advanced by the Crown, demonstrating a material difference in sentence.

5. Applying the material-difference approach in R v Hoda, the hearing was a Newton hearing even though no live evidence was called and no separate Newton hearing was listed.

First-instance costs determination: the Determining Officer assessed remuneration on the basis of a cracked trial. The High Court (Senior Courts Costs Office) allowed the appeal and directed remuneration on the basis of a trial.