R v Shehu

It may be useful for me to restate some of the principles referred to in previousjudgments on the question of whether there has, in a given case, been a Newton hearing.

In R v Robert John Newton (1983) 77 Cr. App. R. 13, the Court of Appeal identifiedthe three forms of what is now known as a “Newton Hearing”. The purpose of such ahearing is to resolve disputed facts, which may be put before the jury for a decision.Alternatively the judge may hear evidence and then come to a conclusion; or the judgemay hear no live evidence but instead listen to submissions from counsel and then cometo a conclusion.

On the wording of the 2013 Regulations in isolation, it might appear that live evidencemust be heard for a hearing to qualify as a Newton hearing. In fact, if reference is madeto the principles of R v Newton, to which they expressly refer, it becomes apparent thatsuch is not the case.

I have been referred by the parties to several decisions by Costs Judges, including myown, which apply that approach. They include R v Johnson [2017] 1 Costs LO 125; Rv Hoda (SCCO 11/15, 13 May 2015); R v Morfitt (SCCO 55/16, 29 July 2016); and Rv Makengele (SCCO SC-2019-CRI-000072, 6 January 2019).

This case turns on the events of 2 September 2022. The Appellant seeks payment of atrial fee, on the basis that there was a Newton hearing on that date. The DeterminingOfficer took the view that there was no Newton hearing and that payment was due fora guilty plea.

I am grateful to Mr McCarthy for the Appellant, and Ms Weisman for the Respondent,for helpful written submissions from which I have extracted the following brief account.

The Appellant represented Revi Shehu (the Defendant”) in the Crown Court atBradford. The Defendant was charged alongside six co-defendants on a seven-countindictment. He faced one count of production of a class B drug (Cannabis). His roleinvolved taking charge of the property at which cannabis plants were being grown andlooking after the plants.

On 6 August 2021 the Defendant attended court for a pre-trial preparation hearing andpleaded guilty. The matter was put over for sentencing to take place at the conclusionof the trial of his co-defendants.

After the Defendant entered his guilty plea, his defence team asked for his matter to belisted for a hearing so that he could vacate his plea. That was set down for a hearingwhich, for reasons that are not entirely clear, did not take place. The Defendant insteadsubmitted a basis of plea, filed on 1 September 2022.

On 2 September 2022 the Defendant appeared before HHJ Nadim for a sentencing

Mr McCarthy for the Appellant makes the point that whether the 2 September 2022hearing was listed as a Newton hearing, rather than (as, apparently, it was) a sentencinghearing, is not to the point. The question is rather whether it can properly becharacterised as a Newton hearing.

In that respect the Appellant relies upon the fact that the Prosecution did not accept theDefendant’s written basis of plea, arguing that the Defendant played a significant, ratherthan as he contended a lesser, role in the cannabis operation: and upon the fact that thesentencing Judge heard submissions before making a finding to the effect that theDefendant did play a significant role, and sentencing accordingly.

The Appellant also relies upon a note from Mr Headlam, counsel representing theDefendant at the hearing, who says that because of a clear dispute between theProsecution & the Defence as to the role played by the Defendant in respect of hisGuilty plea, the Judge decided that the matter could only be resolved by a NewtonHearing by way of Submissions from Counsel.

Having reviewed a transcript of the proceedings on 2 September 2022, I am unable to

As is clear from R v Newton, the purpose of a Newton hearing is to resolve factualdisputes so that the correct sentence can be imposed. Accordingly, for a Newton hearingto take place before a Judge, the Judge must be called upon to resolve any such disputesby making a finding or findings of fact.

I agree with Ms Weisman that on 2 September 2022 HHJ Nadim was not called uponto address any factual dispute or make to any finding of fact. That distinguishes thiscase from others such as R v Johnson or R v Makengele, in which Judges had beencalled upon to make such findings.

On 2 September 2022 the facts, with regard to the Defendant’s role in the cannabisoperation, were not in dispute. The question was rather whether on those establishedfacts, it was in keeping with the sentencing guidelines to conclude that the activitiescarried out by their Defendant merited the more sentence appropriate to an individualin a “significant role”. HHJ Nadim entertained some brief submissions in that respectand disposed of the issue with some succinct observations that were not resisted by MrHeadlam.

HHJ Nadim did (as his sentencing remarks confirm) make an express finding to theeffect that the Defendant played a significant role, but he did so by applying thesentencing guidelines to undisputed facts.

For those reasons, I find that the hearing on 2 September 2022 was not a Newton