R v Albert Asanaj & Anor

A Newton hearing is required only where disputed facts may make a material difference to sentence. A judge may determine such facts by hearing evidence or, in an appropriate case, by receiving submissions without live evidence. Submissions on an agreed evidential framework, or a factual determination with no sufficiently material sentencing effect, do not by themselves constitute a Newton hearing for graduated-fee purposes. A defendant’s mere presence while evidence is called for a co-defendant, coupled with a hypothetical opportunity to cross-examine, is insufficient where the defendant’s case has already been resolved without any factual issue requiring determination.

Three appeals under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 concerned the recoupment of litigators’ and advocates’ graduated fees. The appellants represented two brothers who pleaded guilty to conspiracy-related offences and submitted bases of plea. A Newton hearing was listed, but the trial judge concluded, after written and oral submissions, that no factual dispute requiring adjudication remained in relation to either brother. Their cases were adjourned for sentencing on an agreed evidential framework.

Evidence was later called in relation to co-defendants. The central issue was whether the brothers’ attendance at that hearing, and their potential but unused opportunity to cross-examine, meant that a Newton hearing had taken place for fee purposes.

1. The appeals were dismissed. The relevant question was whether a hearing to determine disputed facts capable of materially affecting sentence had taken place for the appellants’ clients.

2. The judgment in R v Robert John Newton established that disputed sentencing facts may be determined by the jury, by a judge after hearing evidence, or by a judge after hearing submissions without live evidence. The modern use of bases of plea may involve competing factual accounts and submissions, but a factual determination is not enough to create a Newton hearing unless it has a sufficiently material effect on sentence.

3. In the present cases, the brothers’ positions had been resolved before the prosecution opened its case or called evidence. The later sentencing hearing involved submissions placing them within the sentencing guidelines on an agreed evidential framework. It therefore did not amount to a Newton hearing.

4. The appellants relied on R v Morfitt (55/16), where evidence called during a co-defendant’s Newton hearing was relevant to the other defendant’s disputed facts. That decision was distinguishable. In Morfitt, the co-defendant’s evidence was called first and supplied evidence relevant to the other defendant’s case. Here, the brothers were dealt with before any evidence was called, and the judge had concluded that no factual issue required determination.

5. The mere possibility that counsel might have cross-examined witnesses was hypothetical. Counsel had not asked questions and had already indicated that the evidence was not challenged. The brothers’ remaining to hear the opening or evidence concerning co-defendants could not transform their own hearing into a Newton hearing.

• Senior Courts Costs Office: The determining officers sought recoupment of graduated fees. The appeals under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 were dismissed by Senior Costs Judge Rowley.