This judgment was handed down remotely at 4.30pm on 15 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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COSTS JUDGE NAGALINGAM
Background
- The Defendant faced an indictment containing eight counts:- (1) and (2) conspiracy to supply class A drugs (heroin and cocaine respectively); (3) to (8) arranging or facilitating the transfer of another with a view to exploitation.
- The conspiracy spanned from 23 July 2021 to 1 June 2022. The Defendant was 18 years old at the beginning of the conspiracy, and turned 19 around the half way point. The facilitation occurred between 10 and 22 March 2022. The Defendant was 19 years old at the time.
- The Defendant maintained that she became involved in the conspiracy due to having been groomed, though she was unwilling to name the individual/s that had allegedly groomed her.
- On 29 June 2022, the parties attended court for a pre-trial preparation hearing (PTPH) but no arraignment took place. The case was re-listed for a PTPH to take place on 7 September 2022.
- On 7 September 2022 the parties again attended court and on that occasion the Defendant gave an indication of a not guilty plea, although again there was no formal arraignment, largely because of the Bar Strike. The court fixed a trial date for 12 June 2023.
- On 12 June 2023, the parties attended court for trial where the Defendant changed her plea to guilty in respect of counts 1, 2 and 8. This was accepted by the prosecution, and the remaining counts were to lie on the file.
- Additionally, the Defendant served a basis of plea, and defence counsel requested that the matter be adjourned for sentencing, with a request for a pre-sentence report and indication that the Defendant's solicitors would be obtaining psychiatric reports, and a report regarding the value of the drugs involved. There were discussions in court as to the basis of plea, and a Newton hearing was listed for 5 February 2024.
- On 5 February the parties came before the court for sentencing and on that occasion it was indicated that the basis of plea was no longer contested. However, the Judge indicated he required further information prior to sentencing and the case was further adjourned.
- On 16 May 2024 the case again came before the court for sentence. The prosecution indicated to the court that a certain amount of new material had been uploaded by the defence and there was still significant disagreement between the parties as to the Defendant's role and offence categorisation.
- The prosecution submitted that it might be that a Newton hearing would be required. The Judge indicated that he felt he might be able to deal with matters on the basis of the evidence before him, so that an adjournment in order to hear oral evidence would not be needed. The parties were content and in the event the court sentenced the Defendant to five years imprisonment in a young offenders' institution.
Claim
- The Appellant claimed payment for a trial fee, based on a Newton hearing having taken place, whereas the Determining Officer assessed that the appropriate fee was for a cracked trial.
Relevant Legislation
- The applicable regulations are The Criminal Legal Aid (Remuneration) Regulations 2013 ('the 2013 Regulations'), and in particular paragraph 1(1) of Schedule 2 to the 2013 Regulations which provides (where relevant) as follows:
"cracked trial" means a case on indictment in which
(a) the assisted person enters a plea of not guilty to one or more counts at the first
hearing at which he or she enters a plea and
(i) the case does not proceed to trial (whether by reason of pleas of guilty or for other
reasons) or the prosecution offers no evidence; and
(ii) either
(aa) in respect of one or more counts to which the assisted person pleaded guilty,
the assisted person did not so plead at the first hearing at which he or she entered
a plea; or
(bb) in respect of one or more counts which did not proceed, the prosecution did
not, before or at the first hearing at which the assisted person entered a plea,
declare an intention of not proceeding with them; or
(b) the case is listed for trial without a hearing at which the assisted person enters a
plea;
- Paragraph 2(4) of Schedule 2 states that:
(4) Where, following a case on indictment, a Newton hearing takes place
(a) for the purposes of this Schedule the case is to be treated as having gone to trial;
(b) the length of the trial is to be taken to be the combined length of the main hearing and the Newton hearing; and
(c) the provisions of this Schedule relating to cracked trials and guilty pleas will not apply.
- Paragraph 1 of Schedule 2 also defines a Newton hearing as:
"
a hearing at which evidence is heard for the purposes of determining the sentence of a convicted person in accordance with the principles of R v. Newton 77 Cr. App. R.13 CA."
Submissions
- Mr Carse submits this appeals rests with whichever interpretation I prefer of the events of 16 May 2024.
- In inviting such analysis, Mr Carse cited three cases. Citing firstly, R v Hoda (SCCO Ref: 11/15):
"11. In the case of R v Newton, the Court described three kinds of hearing which could constitute a trial of the facts:
a. The disputed facts could be put before the jury for their decision
b. The judge could hear the evidence and then come to a conclusion
c. The judge could hear no live evidence but instead listen to submissions from counsel and then come to a conclusion
12. The purpose of a Newton hearing is to establish the facts so that the correct sentence can be imposed. From this can be gleaned the proposition that only cases where a material difference in the sentence will depend on the Judge's findings will justify a Newton hearing. Consequently, it is unusual for the parties to be content to address the judge on the written evidence as the third option above sets out. But it is just as much a Newton hearing as one where live evidence is called."
- Mr Carse submits that is the scenario at play here (and in fairness to Ms Weisman, she was clear that the Respondent does not dispute the proposition that a Newton hearing may occur without live evidence).
- Thereafter, Mr Carse cited R v Makengele (SC-2019-CRI-000072) and submits that the case bears similarities with the index matter in that in Makengele, at paragraph 8, "The judge
went on to make findings, including that the Defendant felt that he had no option but that to cooperate with those managing the drug distribution network, but also that he had played an essential and important role. Sentence was based on those findings".
- Mr Carse submits that is essentially what happened in the index matter, following a Newton hearing, and with reference to paragraph 18 of Makengele:
"18. The evidence before me supports the conclusion that HHJ Saggerson came to a conclusion on two factual issues not agreed as between prosecution and defence: the importance of the Defendant's role in the drug distribution network, and the extent to which he played that role under duress. The judge had to come to conclusions on those facts before sentencing, and he did so having heard what appear to have been extensive submissions from counsel for the Crown and for the Defendant."
- Mr Carse further cited Makengele as an example of where a costs judge concluded a Newton hearing had taken place:
"19. It seems to me that HHJ Saggerson, in referring to a "trial of issue" (or more probably, to a "trial of issues") had in mind a hearing at which evidence would be heard. He did not think that such a hearing was necessary, but it does not follow that there were no factual issues to be determined by him. It seems to me that he simply concluded that he could do so on the basis of the submissions he had already heard and the evidence already before him. There would have been no good reason for him to give consideration to the question of whether, by reference to the relevant (and here, agreed) criteria, a Newton hearing was already taking place.
20. I note that counsel for the Defendant appeared to take the view that a Newton hearing would not take place unless evidence was heard but if that is what he thought, it is inconsistent with what the parties agree is the correct test.
21. For those reasons, the appeal succeeds. My conclusion is that a Newton hearing did take place, in which HHJ Saggerson heard no live evidence but considered submissions from counsel and then come to conclusions on factual matters essential to determining an appropriate sentence. The Appellant should be remunerated accordingly."
- Finally, Mr Carse cited R v Badibang [2025] EWHC 89 (SCCO) as being "in line" with the index case.
- Mr Carse explained his involvement in this matter commenced in or around November 2023, by which stage a Newton hearing had already been listed to decide quantum (i.e. value of drugs) and extent of role.
- He thereafter describes the Appellant's e-mail to the Crown of 31 January 2024 as an "unusual turn of events", in which the Appellant stated:
"We write in relation to the hearing listed on 5th February 2024. We no longer intend to dispute the issue of quantum and will not be calling Mr Atha nor do we require PC Render to give evidence in relation to this issue.
There may not be a need for a newton hearing as submissions relating to the basis of plea and role will suffice."
- Mr Carse explained that Mr Atha and PC Render were to give evidence regarding quantum and how the value of drugs had been calculated.
- Thereafter, mention hearings were listed in March and May 2024 but neither proceeded, hence the next hearing was the sentencing hearing of 16 May 2024.
- Mr Carse then cited the Crown's sentencing note (dated 4 December 2023) and observed at that time both role and quantum remained in dispute. It was argued the Defendant had played a leading role on the bases of "a. Selling on a Commercial Scale; b. Substantial links to and influence on others in the chain; c. Expectation of significant financial advantage"
- Mr Carse submits that the Crown's case, if successful, would have meant a very lengthy custodial sentence for the Defendant.
- Mr Carse invited contrast with the Defence sentencing note, and in particular the reasons for the significant gulf between Crown and Defence regarding role. The Crown argued the Defendant was at the very top of the enterprise. The Defence case was that the Defendant was young, vulnerable and had been groomed into the role.
- Mr Carse submits that ultimately it is the question of role which made the 16 May 2024 hearing a Newton hearing. The court was tasked with deciding whether the Defendant had played a significant or leading role, with there being a substantial variation in custodial sentences the Defendant would otherwise receive.
- On counts 1 and 2 the Crown contended for a prison sentence of 14 years. The Defendant was sentenced to 5 years. On count 8, the Crown contended for a prison sentence of 8 years. The Defendant was sentenced to 2 years.
- As to quantum and harm, the Mr Carse said that the Appellant accepts this was a question of nuance which would not alone amount to a Newton hearing because it distilled down to an interpretation of the algorithm used to calculate the quantum of drugs involved in the conspiracy.
- The Appellant's argument is that a factual dispute was settled by the court. The harm element flowed from the interpretation of an algorithm. However, role was a question of considerable factual dispute, hence a decision of the court based on evidence was necessary.
- Mr Carse points to the transcript of the 16 May 2024 hearing and observed that the trial judge was well versed in these proceedings, having dealt with the co-defendants and managed this case for many years.
- He submits the matter is on a par with R v Hoda in that there was ultimately no need to call live evidence, but rather look at evidence already available in order to make a finding of fact, with reliance placed in particular on paragraph E onwards of page 11 of the transcript of the sentencing hearing.
- Ms Weisman, for the Respondent, agrees this appeal concerns a narrow issue, which is focused on the events of 16 May 2024. She submits that ultimately the question is whether the sentencing court decided upon a question of disputed fact, or disputed interpretation/inference.
- Ms Weisman confirmed that because the Respondent accepts that live evidence is not a condition of a Newton Hearing having taken place, the court need not conduct an in-depth analysis of R v Hoda.
- With regards to the decisions in Makengele and Badibang, Ms Weisman accepts the similarities highlighted by the Appellant, but observes neither decision is binding and that there are numerous other cases where the opposite conclusion has been drawn. The point Ms Weisman sought to stress was that each case would be fact sensitive and therefore ought to be decided on its fact, rather than by comparison with other decisions.
- As to approach, Ms Weisman accepts there is a fine line to be drawn when it comes to whether or not a Newton hearing has taken place, and the question for the court is which side of the line does the index matter fall.
- In Ms Weisman's view, the hearing transcript assists the Respondent more than the Appellant. That is because the Appellant cannot ignore the judge's transcribed comments regarding the basis of plea, and the factors taken into consideration in deciding to proceed to sentencing without a further hearing.
- Ms Weisman submits the transcript demonstrates that the judge acknowledged a Newton hearing might be needed, but ultimately wasn't.
- Ms Weisman also referenced judicial comment regarding what weight to attach to evidence, and interpretation. She contrasted this with actual findings of fact.
- The key ambit of the dispute was the Defendant's role in the conspiracy, taking into account, among other things, text messages between the Defendant and co-defendants regarding role - and therefore what sentence should follow.
- The Respondent accepts that the custodial sentence could vary significantly, but that was not uncommon at a mitigation hearing re sentencing.
- Ms Weisman warned of the danger that every hearing in which pleas in mitigation are made could be deemed a Newton hearing, and that was not the intention of the funding structure to cast the definition of Newton that widely.
- The transcript is important, and the judge's comments at the outset support the stance adopted by the Respondent.
- In response, Mr Carse sought to remind the court that it was he who had conduct of the 16 May 2024 hearing on behalf of the Defendant, and that HHJ Bate was due to deal with a Newton hearing with expert attendance.
- Mr Carse submits that when the judge said he didn't need to list a separate Newton hearing, he meant he didn't need a hearing with experts, and that thereafter whether or not what took place was a Newton hearing is not to be based on what the hearing was called, but whether or not a Newton hearing factually took place.
- Additionally, Mr Carse said that the Crown relied on more than just the text messages, and that one does not reduce a sentence from a maximum of 14 years down to 5 years based only on inference.
- The sentencing required findings of fact, hence it was a Newton hearing and should be remunerated as such.
Analysis and decision
- The transcript of the sentencing hearing is clearly the starting point in this dispute.
- It is accepted that the fact the hearing in question was not listed as a Newton hearing does not mean that it was not a Newton hearing. It is also accepted that the hearing of live evidence is not a condition of a Newton hearing and both parties invite me to consider what factually occurred on 16 May 2024.
- Prior to sentencing, the Crown had argued the Defendant played a leading role in the conspiracy to supply, which would put her "between the high end of Category 2 and the lower end of Category 1. This would give a starting point of 11-14 years and a sentencing range of 9-16 years".
- This took into account expert evidence that around 3kg of Class A drugs had been involved.
- In relation to the human trafficking matter, the Crown argued that the Defendant fell "within at least Medium Culpability and Harm is likely to be assessed at Category 3. Giving a SP of 6 years with a range of 5-8 years.", whilst also stating it was open to the court to consider the Defendant played a leading role on that count too.
- The Defence sentencing note invited the court to consider the "effect of the defendant's age; Her personal circumstances, including the fact she was groomed into the offending;
and iii. The control exercised upon her by others the defendant more readily falls into the significant role category".
- In terms of role, the factors argued by the Defence were that the Defendant "Played an operational and management function within a chain; There was an expectation of significant (as opposed to substantial) financial advantage" and that it was "noted there is no evidence the defendant obtained substantial financial advantage and, in fact, there is evidence on messages as to the limited reward she was obtaining."
- I observe that the difference between a finding of significant and substantial financial advantage is relevant to the question of significant role v leading role.
- The Defence case also called into question the accuracy of the calculation of 3kg of drugs, arguing that "The algorithm in essence calculates the number of messages sent against the likely response and effected supply to end users." and "The Court is reminded that the Court of Appeal has indicated that the use of the algorithm is not a substitute for real evidence, but a guide only."
- Sentencing was therefore pleaded by the Defence on the basis of a "standard category 2 harm case".
- In relation to human trafficking, the Defence framed their argument in terms of exploitation of one other who was close in age to the Defendant herself. The Defence asserted that the Defendant "played a role somewhere between the medium and lesser culpability brackets." and "The court [was] respectfully reminded the defendant herself was effectively exploited.".
- The Defence also asserted that "No evidence has been served of the asserted harm caused to the victim, Moses Balogun. In the absence of such evidence, it is respectfully submitted the Court cannot guess as to the harm caused and, it is submitted should categorize the offence as one of category 4 harm."
- Turning to the transcript of the hearing of 16 May 2024, there are a number of useful passages which assist in my decision.
- On page 2 at paragraph E, the Crown observed that "there still remains a significant difference between the Crown and the defence as to the culpability of the drugs trafficking offence."
- The judge's summing up commences at page 11, paragraph E. He recognised the Defendant's age at the time of offending, the absence of any prior convictions, and four supportive testimonials.
- The judge observed two expert reports had been produced concerning the Defendant's background, and that the context of the same was to be borne in mind.
- The judge considered the history of the county lines operation from which this conspiracy flowed and the Defendant's relationship with an older man (who was not before the court), and concluded that "it's realistic to say that she did not set up this line".
- The judge concluded the Defendant to be "an intelligent, hardworking, diligent woman and it is a sadness that such talents were put to dishonest use to further the aims of this conspiracy. I am therefore prepared to accept as Mr Carse urges me that her role in the
case should be properly regarded as significant and the overall status of the conspiracy can be properly said to be category 2 in the indicators of harm within the guideline."
- In terms of exploitation, the judge found:
"I agree that the although it has its own distinct guidelines, it is better regarded as part and parcel of the drugs conspiracy and I intend to take the approach for which Mr Carse and indeed Mr Edwards submit in the first instance, that I should identify counts 1 and two as the lead offences and appropriately weight them and pass a lesser sentence of a concurrent nature in relation to the distinct exploitation charge. Bearing in mind of course the overall principle of totality throughout."
- I concur with the approach adopted by Costs Judge Whalan in R v Badibanga where he considered whether the "judge had to merely assist with contrasting interpretations and inferences prompted by relatively settled evidence, but rather the case where the court had to determine substantive disputes of relevant facts.".
- In Badibanga, Costs Judge Whalan drew a distinction between deciding upon category before sentencing, and where the court is limited to a single category in the sentencing guidelines.
- In the case of the former, he observed that "the judge had to determine between Category 3 or 2, in circumstances, aside from the sentencing range within each category, there was necessarily a difference (of 2.5 years' imprisonment) in the custodial starting point. This, it seems to me, leads properly to the conclusion that sentencing constituted a Newton hearing, not least because both sides adduced expert evidence on the issue(s)."
- In the case of the latter, he observed that "If, in my conclusion, the judge had been limited to a single category in the sentencing guidelines, he/she would still have had to determine where in the respective sentencing range this case fell. The court, in other words, would hear contrasting submissions on the evidence, and the facts would have been subject to different interpretations and inferences, both of the prosecution and the defence. I am satisfied that this would not have been a Newton hearing."
- It is common ground between the parties that a Newton hearing can be classified as such in circumstances where it is not listed explicitly as a Newton hearing, or when proceedings are limited to submissions in circumstances where no live evidence was adduced.
- I concur with Cost Judge Whalan's observation in Badibanga that "the key distinction is that set out in R v. Sheaq (ibid), where CJ Leonard drew a distinction between cases where the judge was called upon to make findings of fact, and those cases where undisputed facts might be subject to different interpretations or inferences which, in turn, could lead to different conclusions on sentencing. Insofar as these cases set out a number of clear points of principle, a determination of this point turns invariably on the facts of each individual case, a reality illustrated by the contrasting conclusions set out in the (now fairly voluminous) case references."
- In the index matter, I find that the judge considered conflicting evidence, including expert evidence, and made various findings of fact relevant to counts 1 and 2, namely whether the Defendant should be sentenced as a Category 1 or 2 offender, and where starting point distinction between the two categories corresponded with significant differences between the number of years imprisonment the Defendant would face.
- In that regard, it is recorded as relevant that the Defendant was sentenced to 5 years and 2 years, to run concurrently, as compared with a starting point of 11-14 years with a sentencing range of 9-16 years (as contended for by the Crown). This amounts to a "material difference" in sentencing (as per R v Hoda).
- The appeal therefore succeeds and the Appellant shall therefore be remunerated on the basis of a trial as opposed to a cracked trial.
Costs
- The Respondent shall pay the costs of this appeal in the sum of £350 plus VAT for Mr Carse's fees and the appeal fee of £100.
COSTS JUDGE NAGALINGAM