R v Jonathan Badibanga

A Newton hearing may arise even where it was not expressly listed as such and no live evidence was called. The decisive question is whether the sentencing judge had to resolve a substantive dispute of fact, rather than merely choose between competing interpretations or inferences from undisputed facts. The assessment is fact-sensitive. A substantial difference between sentencing categories, competing expert evidence and disputed facts may establish a Newton hearing. Where a Newton hearing follows a case on indictment, the Criminal Legal Aid (Remuneration) Regulations 2013 require the case to be treated as having gone to trial, with the trial length calculated by combining the relevant hearings.

Stokoe Partnership Solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the Legal Aid Agency’s determination of a Litigator’s Graduated Fees Scheme claim. The Defendant had pleaded guilty to conspiracy charges, but disputed the appropriate sentencing category. At sentence, the court considered competing expert evidence and made findings relevant to whether he was a Category 2 or Category 3 offender. The issue was whether that sentencing hearing constituted a Newton hearing and therefore attracted a trial fee.

1. Appeal allowed. The sentencing hearing constituted a Newton hearing. The Appellants’ claim was therefore payable as a two-day trial rather than as a guilty plea.
2. The court accepted that a Newton hearing may exist even where it was not expressly listed as such and where the proceedings consisted only of submissions without live evidence. The central distinction, reflected in R v Sheaq [2023] EWHC 3483 (SCCO), is between a judge determining disputed facts and a judge drawing different inferences or interpretations from undisputed facts.
3. The classification is fact-sensitive. The hearing was not limited to selecting a sentencing point within one category. The judge had to determine whether the Defendant fell within Category 2 or Category 3, involving a material difference in the custodial starting point. Both parties had adduced expert evidence, and the judge made findings of fact concerning the Defendant’s role in the organised crime network.
4. Under paragraph 2(4) of Schedule 2 to the Criminal Legal Aid (Remuneration) Regulations 2013, a case involving a Newton hearing is treated as having gone to trial and the trial length is the combined length of the main hearing and the Newton hearing.
5. The Appellants were also entitled to repayment of the £100 appeal fee. No other costs claim was made.

• High Court (Senior Court Costs Office): Appeal under regulation 29 allowed against the Legal Aid Agency Determining Officer’s assessment. The claim was directed to be paid as a trial, with repayment of the £100 appeal fee.