R v Naqash Ali

For remuneration under the Litigators Graduated Fee Scheme, a sentencing hearing becomes a Newton hearing only where disputed facts must be resolved before sentence can properly be passed. Where no Newton hearing was listed, a relatively high threshold applies. It is insufficient that the judge makes evaluative findings about culpability, role, hierarchy or quantities. The hearing must either be treated by all participants as a Newton hearing or involve a clear factual dispute requiring determination. A broad or provisional assessment used as a cross-check to an otherwise determined sentence does not meet that threshold.

Eldwick Law appealed against a determining officer’s decision to remunerate it by a cracked trial fee. The solicitors had represented Naqash Ali, who initially pleaded not guilty to drug and firearms offences before pleading guilty. Sentence was considered over hearings on 11 and 15 April 2024.

The solicitors argued that the sentencing process was a Newton hearing because the judge considered disputed issues concerning the defendant’s role and the quantity of drugs involved. The central issue was whether the sentencing hearings required factual findings of the kind that entitled the solicitors to a trial fee under the Criminal Legal Aid (Remuneration) Regulations 2013.

Appeal dismissed. The sentencing hearings remained ordinary sentencing hearings and did not amount to a Newton hearing for the purposes of the Graduated Fee Scheme.

1. The relevant distinction is between resolving a substantial conflict of fact before sentence and determining where the admitted or established offending falls within the sentencing guidelines. The latter does not, by itself, constitute a Newton hearing.
2. As explained in R v Robert John Newton (1982) 4 Cr. App. R. (S.) 388, factual disputes may be resolved by the jury, by the judge hearing evidence, or, in an appropriate case, through submissions where the judge adopts the more lenient view of a substantial conflict. That approach provided the relevant framework.
3. Where the hearing is listed as a Newton hearing and the judge and advocates treat it as such, its character will ordinarily be clear. Where it was not so listed, a relatively high threshold is required before an ordinary sentencing hearing is reclassified.
4. The defence note and expert evidence might have led to a Newton hearing, but the sentencing judge indicated at the outset that she regarded the defendant’s role as significant rather than leading and was prepared to sentence on that basis without hearing the expert evidence.
5. The reference to approximately 60 kg of drugs was a broad extrapolation included as a cross-check in the sentencing note. It was not a substantial factual dispute that required determination before sentence. The appeal therefore failed.

• Determining officer: remunerated the solicitors by a cracked trial fee under the Litigators Graduated Fee Scheme.
• High Court (Senior Court Costs Office): appeal under Regulation 29 dismissed.