R v Wilson

A Newton hearing may arise where a sentencing judge must resolve a factual dispute material to sentence. The hearing need not involve fresh or live evidence. Submissions alone can suffice, consistently with the third procedural method identified in R v Newton (1982) 77 Cr App R 13. Evidence heard at the trial may also form part of the material considered. The question is whether the sentencing judge undertook a genuine fact-finding exercise, rather than merely applying sentencing guidelines to undisputed facts. Where that exercise materially affects sentence, the solicitor’s fee under the Criminal Legal Aid (Remuneration) Regulations 2013 is calculated as a trial fee.

Montague Solicitors appealed under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013. The determining officer had assessed the fee as a guilty plea fee after Colt Sherman Wilson pleaded guilty to drug-supply offences.

At sentencing, the judge resolved a substantial dispute about the quantity of cocaine involved in the conspiracy. The issue was whether competing submissions, together with evidence from the trial and further written material, amounted to a Newton hearing under Schedule 2 of the Regulations.

1. Appeal allowed. The determining officer was directed to recalculate the litigator’s fee on the basis of a trial fee. The solicitors were also awarded £750 plus VAT for the appeal and repayment of the £100 appeal fee.
2. Schedule 2 of the Criminal Legal Aid (Remuneration) Regulations 2013 defines a Newton hearing by reference to the principles in R v Newton (1982) 77 Cr App R 13. Those principles recognise three procedural methods: determination by the jury, a judge’s determination after hearing evidence, or a judge’s determination after hearing submissions without live evidence.
3. Fresh evidence is not an essential requirement. The reference to a hearing at which evidence is heard must be read with the incorporated Newton principles. Requiring evidence that was not available at trial would improperly exclude the jury-based procedural method and add an unnecessary qualification to Newton.
4. The relevant distinction is between a genuine fact-finding exercise and an ordinary sentencing hearing in which the judge merely evaluates undisputed trial evidence or applies the sentencing guidelines. The length of submissions is immaterial. Here, the sentencing judge considered competing accounts of drug quantity, preferred the Crown’s account, and made findings of 28 or 31 kilograms. Those findings materially affected the sentences.
5. R v Williams [2024] EWHC 3159 (SCCO) was applied to the extent that the essential question is whether the judge was required to make factual findings, but its paragraph 20 was not followed insofar as it suggested that fresh evidence was required. The similar approach in R v Bakr [2025] EWHC 2087 (SCCO) was not followed.

The appeal was brought under regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013 against the determining officer’s assessment of the fee. The High Court (Senior Courts Costs Office) allowed the appeal and ordered recalculation on the trial-fee basis.