R v Jamie Powell

A sentencing hearing is a Newton hearing only where the sentencing judge must determine a disputed factual issue before imposing sentence. Differences between advocates about the appropriate level of seriousness under sentencing guidelines do not suffice. Where no evidence is called, the appellant must identify the specific factual issue that prevented sentencing until it was resolved. For electronic prosecution evidence, a determining officer should assess the proportion of material that is potentially relevant across the full range of percentages. A modest proportion of relevant images may therefore be allowed as prosecution evidence without adopting a fixed percentage.

Brysons Solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the determining officer’s calculation of the litigators graduated fee for work undertaken for Jamie Powell.

The appeal concerned two issues. First, the solicitors argued that the sentencing hearing following Powell’s guilty pleas was a Newton hearing, so that a trial fee rather than a cracked trial fee should be used. Secondly, they challenged the number of pages of prosecution evidence allowed for the electronic material, particularly images from a telephone download.

The central questions were whether the sentencing hearing involved a factual dispute requiring determination before sentence, and what proportion of the images should count as prosecution evidence.

1. Newton hearing. The appeal on the graduated-fee categorisation was dismissed. The question whether a hearing is a Newton hearing depends on what occurred, not merely on how it was listed. A Newton hearing requires the sentencing judge to determine a factual issue or issues in order to impose an appropriate sentence. A difference between advocates as to the defendant’s position within sentencing guidelines is insufficient where no facts are disputed.

2. The decision in R v Robert John Newton explained that disputed facts may be resolved through evidence before a jury or judge, or through submissions on which the judge reaches a conclusion without evidence. Where no evidence is called, there is a relatively high bar. The appellant must demonstrate the specific factual issue that prevented the judge from sentencing until it had been determined. Acceptance of a defendant’s more lenient basis of plea may amount only to the ordinary assessment of mitigation or seriousness, rather than determination of a substantial factual issue.

3. On the evidence claim, the parties had agreed that 6,693 pages of prosecution evidence should be allowed, leaving the images from a 3,462-page telephone download in issue. The images were potentially relevant to the use and ownership of the telephone, but only a modest number appeared likely to be relevant on review. Applying the approach in R v Sereika, the court emphasised that determining officers should use the entire range of percentages rather than treating the 5 per cent allowed in that case as a fixed figure. Five per cent of the image pages, amounting to 173 pages, was allowed.

4. The appeal was therefore successful in part. The total prosecution evidence allowance increased from 1,199 to 6,866 pages. The solicitors were awarded the appropriate additional payment, together with £500 plus VAT for appeal costs and the £100 appeal fee, subject to a proportionate reduction reflecting the unsuccessful Newton-hearing argument.

• Senior Courts Costs Office: The determining officer allowed 1,199 pages of prosecution evidence and calculated the graduated fee using a cracked trial fee.
• High Court (Senior Court Costs Office): The appeal under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 succeeded in part. The cracked trial fee was upheld, but a further 173 pages of telephone-download images were allowed as prosecution evidence.