R v Palmer

For a criminal legal aid fee to be treated as a trial fee, a Newton hearing must actually take place. Listing the matter as a Newton hearing, preparing for it, or the judge viewing evidence beforehand is insufficient. The hearing must involve meaningful engagement with the disputed basis of plea. A hearing has not begun in a meaningful sense where, from the outset, the court cannot hear the evidence or determine the factual dispute, and the matter is instead adjourned for a possible Newton hearing before another judge.

The appellant, an advocate, appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against assessment of his fee for representing a defendant charged with ABH and criminal damage. The defendant pleaded guilty but disputed the prosecution’s account, leading to a Newton hearing being listed.

At the listed hearing, the judge had viewed CCTV but would not permit cross-examination by prosecution counsel attending by videolink. After considering a proposed sentence indication, the defendant withdrew the disputed basis of plea and entered a guilty plea. The issue was whether that hearing qualified as a Newton hearing so that the fee was payable on a trial-fee basis.

1. Appeal dismissed. The Determining Officer was correct to assess the fee on the basis of a guilty plea rather than a trial fee.

2. Paragraph 2(8) of Schedule 1 to the Criminal Legal Aid (Remuneration) Regulations 2013 treats a case on indictment as having gone to trial where a Newton hearing takes place. The statutory scheme requires the hearing itself to take place. It is insufficient that the matter was listed as a Newton hearing or that substantial preparation was undertaken.

3. A Newton hearing involves the court determining facts relevant to sentence. Under R v Newton, that may occur through evidence heard by the judge or through submissions where there is a substantial conflict and the judge resolves the issue in the defendant’s favour. The court accepted that a Newton hearing may, in an appropriate case, take place without a final factual determination, consistently with R v Asseum and the approach referred to in Riley Hayes v Lord Chancellor.

4. That possibility did not assist the appellant. From the outset, cross-examination was not permitted, the case had not been opened, and the judge did not engage with or determine the disputed basis of plea. Viewing the CCTV before the hearing was not an event occurring in the hearing. The hearing therefore had not started in any meaningful sense and could not be treated as having taken place.

5. The court also noted that a Newton hearing may occur even if it was not formally listed as such, as recognised in R v Makengele. The decisive question remains whether the hearing actually commenced with meaningful engagement with the disputed issues.

The judgment records an appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the fee assessment. The appeal was unsuccessful.