R v Farrell

For graduated fees under Criminal Legal Aid (Remuneration) Regulations 2013, a trial fee depends on whether a qualifying Newton hearing took place. Live evidence is not required. The hearing may be conducted on submissions, but the judge must undertake a genuine fact-finding exercise concerning sentencing facts. The inquiry is fact-specific, and listing only a sentencing hearing does not decide it. Drawing obvious inferences from undisputed facts and rejecting unarguable interpretations is not fact-finding. An expectation of receiving money to discharge debts remains a financial advantage, whatever the intended use of the money.

This was an appeal under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 by solicitors who represented Kieran Farrell in Crown Court proceedings. After he pleaded guilty to three charges, the sentencing hearing concerned his role, awareness of the operation and expected financial advantage. The sentencing judge imposed sentence on the basis of a lesser role, while taking account of the extent of participation and financial expectation. The Legal Aid Agency’s Determining Officer awarded a guilty plea fee rather than a trial fee. The central issue was whether the sentencing hearing was a Newton hearing, although no such hearing was listed and no live evidence was heard.

1. Appeal dismissed. The appellant was not entitled to a trial fee because no Newton hearing had taken place.
2. Schedule 2, paragraph 1 of the Criminal Legal Aid (Remuneration) Regulations 2013 applied the principles of R v Robert John Newton (1983) 77 Cr. App. R. 13. Those principles recognised that disputed sentencing facts might be determined by a jury, by a judge after hearing evidence, or by a judge after submissions without live evidence. Live evidence was therefore unnecessary, but a judicial fact-finding exercise remained essential.
3. Whether a Newton hearing occurred was fact-specific. The absence of a listing for such a hearing was not decisive. Where evidence was undisputed, a significant dispute and extensive submissions about factual conclusions with a material effect on sentence could still require fact-finding on submissions. The court referred to R v Williams [2024] EWHC 3159 (SCCO) as an example.
4. In the present case, the sentencing judge drew an obvious inference from established facts and rejected an unarguable interpretation of the defendant’s knowledge. The judge did not resolve a genuine factual dispute. The issue also had no significant bearing on the sentence, which was imposed on the basis of a lesser role. The defendant’s expectation of receiving substantial money to pay debts remained a financial advantage; the intended use of the money did not alter that conclusion.
5. The sentencing hearing therefore did not involve the necessary fact-finding exercise and was not a Newton hearing.

1. Legal Aid Agency Determining Officer: concluded that only a guilty plea fee was payable.
2. High Court (Senior Court Costs Office): dismissed the appeal under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013.