R v Chow

For a Newton hearing to qualify for remuneration under the Criminal Legal Aid (Remuneration) Regulations 2013, the sentencing judge must have been required to determine a disputed fact. Live evidence is not essential. Written submissions may suffice where the judge must resolve a factual dispute.

A costs judge may reach a different conclusion from the sentencing judge about whether a Newton hearing occurred, but the sentencing judge’s observations carry substantial weight. Where the parties agree the sentencing range and no factual finding is necessary to sentence the defendant, the hearing is not a Newton hearing, even if it was listed and prepared as one.

Stonehall Solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the Legal Aid Agency Determining Officer’s assessment of the fee payable for representation transferred before a case was resolved without retrial.

The Defendant had pleaded guilty and advanced a basis of plea concerning his role in a drug conspiracy. A hearing was listed as a Newton hearing, and written and oral submissions were made, but the sentencing judge stated that no Newton hearing was required because the parties agreed on the relevant sentencing range. The issue was whether the Appellant was entitled to the higher fee applicable where representation was transferred before a retrial.

1. The appeal was dismissed. The fee payable was that applicable where, following transfer of representation, the case became a cracked trial and no retrial was necessary.
2. Paragraph 1 of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013 defines a Newton hearing by reference to R v Newton. The definition permits a hearing based on written submissions alone. Live evidence is unnecessary. There must, however, be a fact-finding exercise for the sentencing judge to conduct.
3. A costs judge assessing remuneration may conclude that a Newton hearing took place even where the judge presiding over the sentencing hearing said that it did not. The costs judge must exercise independent judgment, but the presiding judge’s observations are important and must be given due weight. Costs judge decisions on this issue are fact-specific and do not constitute binding authority.
4. On the facts, the prosecution and defence agreed that the Defendant fell at the boundary between the lower end of significant role and the higher end of lesser role. The disputed assertions concerning his knowledge and the pressure exerted by another offender did not require resolution for sentencing purposes.
5. The sentencing judge therefore made no finding of fact on the disputed matters. She proceeded on the agreed assessment of the Defendant’s role, imposed an appropriate sentence of 30 months, and reduced it by 20 per cent for guilty pleas. Since no finding of fact was necessary, no Newton hearing had taken place.
6. The fact that counsel received a Newton-hearing fee for the same proceedings did not affect the determination of the Appellant’s entitlement. The appeal accordingly failed and was dismissed.

High Court (Senior Courts Costs Office): appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 from the Legal Aid Agency Determining Officer dismissed.