This judgment was handed down remotely at 10.30am on 31/10/2025 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
- Although this appeal was originally listed for a hearing, the Appellant later elected to rely on their appeal documents and seek a decision on the papers. The Respondent confirmed they were content with this approach.
- The Appellant litigator firm represented the Defendant, Kane Farrell, in proceedings before the Leicester Crown Court. 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. That decision is now appealed.
- The Defendant was charged as part of a multi-count indictment along with a number of others. The Defendant initially faced 4 counts, being:
i. Count 1 - Conspiracy to supply class A drugs (cocaine);
ii. Count 10 - Possession a Controlled Drug of Class B (cannabis – later amended to class A (cocaine)) with intent to supply
iii. Count 11 - Possession of Criminal Property (£160,000 cash) and
iv. Count 18 - Failing To Comply with a Notice Requiring Disclosure (phone PIN).
- The Defendant's case was sent to the Crown Court from the Magistrates' Court on 14 February 2022, and a PTPH took place on 4 April 2022. In advance of that hearing, the Crown uploaded and relied upon a "PTPH Agenda" document (S5 of the CCDCS) and the MG5 Case Summary (F16 of the CCDCS).
- On 4 April 2022 the Defendant pleaded guilty to counts 1, 10 and Count 11 and not guilty to count 18. Matters were adjourned for trial on count 18. The Defendant's admission was based on pleading guilty to his involvement but capped at 2.5kg of cocaine.
- The court log shows that at a hearing on 17 October 2022 the trial was listed for 24
April 2023. However, at a hearing on 9 May 2023, the Judge enquired if the Defendant was still awaiting trial. Prosecution counsel informed the Judge that there was some
confusion with the paperwork, and advised they would not pursue Count 18 at trial. However, this was not before service of a Defence Statement and general preparation for trial.
- Matters were therefore instead prepared for sentencing, which was fixed to take place on 19 June 2023 and the Crown uploaded a Sentencing Note (T166 of the CCDCS). The note recorded that the volume of drugs the Defendant was said to be involved in was "2+kg (Cat 1)". The Defence took no issue with this because this was the amount the Defendant had pleaded to at the PTPH.
- On 18 June 2023, Prosecution Counsel communicated with Defence Counsel to advise that the Crown would be laying a new count on the indictment (Count 23 - Supplying class A drugs (not specified)) based on new evidence gathered by the Police following analysis of the Defendant's devices.
- On 19 June 2023 the prosecution informed the judge of their intention to apply to add further counts based on further investigations which had taken place. Count 23 was subsequently added but on 4 August 2023 the Defendant entered a not guilty plea. The matter was then adjourned again for trial.
- However, after the 19 June 2023 hearing the Crown advised they would no longer be pursuing count 23. The matter was again listed for sentencing and for mitigation, to take place on 29 November 2023.
- The Crown subsequently uploaded a new Sentencing Note (T230 of the CCDCS) which referred to the volume of drugs the Defendant was said to be involved in as "3+kg (Cat 1)" (as per paragraph 67 of the Sentencing Note at T230). Thus the volume of drugs was now an issue between the Crown and Defence.
- In the event, mitigation was heard on 29 November 2023 and sentencing on 8 December 2023. The split was to accommodate the diaries of defence and prosecution counsel.
- In addition to the sentencing notes uploaded by the prosecution setting out their position, prosecution counsel also opened the facts, and defence counsel mitigated. On 9 December 2023 the Defendant was sentenced to 6 years 9 months imprisonment.
Submissions
- The Appellant submits a Newton Hearing took place because both the prosecution and defence counsel made submissions on the amount of drugs involved. The prosecution alleging that the Defendant was involved in firstly 2.5kg (as per the PTPH Agenda Note), and later 3+kg (as per the T230 Sentencing Note), and further still "4kg+" in oral submissions on 29th November 2023.
- The Defendant accepted involvement in "2.5kg" (as per the PTPH Agenda Note) and this was relied upon at the time of the Defendant's plea.
- The Appellant's case is that the trial Judge made a finding of fact on 29 November 2023, such that the Defendant was involved in 3+kg and sentenced on that basis.
- The Appellant submits that at the mitigation hearing on 29 November 2023, respective counsel decided that each party would make submissions and the issue of the quantities involved would be left with the Judge to decide.
- At the hearing, prosecution counsel initially advanced a position based on 3kg+, which was then altered to involvement in at least 4kg (based on count 11), the inference being that as a cocaine supplier the £160,000 either derived from the sale of cocaine or was to be used in the supply of cocaine.
- Defence counsel also advanced submissions in relation to the quantity of drugs, citing that since April 2022 the Defendant had pleaded to 2.5kg and that it was unclear why the prosecution stance had altered. The Defendant did not intend to change their plea as to amount (weight).
- The Appellant submits that the importance of this issue sounded in the fact that if the prosecution case was preferred, it would elevate the Defendant in the sentencing guidelines and bring his starting point and sentence higher.
- The Defendant was sentenced on 8 December 2023 and the trial judge made the following remarks (at Y19 of CCDCS):
"I have to sentence you for count 1, 10 and 11.
You were a commercial supplier of cocaine. You made purchases of ½ kilograms from the Leicester group so that you could supply to other dealers below you. A substantial amount of cash – over £160k - was recovered from your address. The precise origins of that money will be decided at a later hearing.
Your role is a SIGNIFICANT one in the guidelines.
The quantity attributable to you is above 3 kilograms so takes you between category 1 and 2.
You did not have use of an Encrochat device.
I have read a number of references that have been written on your behalf by all sorts of people who clearly see the other side of you. You have other interests in your life which should have kept you occupied. I have listened carefully to the fulsome mitigation presented on your behalf.
You have no drug convictions recorded against you."
- The Appellant submits that "The contentious issue of the quantity of drugs supplied by this Defendant was given a determination", in that the judge found "The quantity attributable to [the Defendant] is above 3 kilograms so takes you between category 1 and 2."
- The Appellant further submits that the judge heard submissions on the evidence from both prosecution and defence counsel on the issue of the amount of class A drugs that the Defendant was involved in, and having been led through the evidence and submissions from both counsel, the judge made the findings of facts, namely the quantity attributable to the Defendant.
- It is on this basis that the Appellant contends for remuneration of a trial fee.
- The Respondent's submissions are summarised in the written submissions of the Legal Aid Agency dated 16 October 2024. These explain that the determining officer made his decision based on there being no indication from the court records that a Newton hearing took place, that any discussions did not require the Judge to make any findings of fact, and therefore only a cracked trial fee was payable.
- However, the Respondent goes on to explain that the determining officer did not have the benefit of the transcripts of the prosecution opening or mitigation, which have since been reviewed by the Legal Aid Agency.
- The Respondent cites those transcripts in arguing that only brief submissions were made as to whether the defendant was involved in "3+"kg or 2.5kg.
- The Respondent accepts that the judge had to decide the appropriate category and role, as is usual in drug conspiracies, but submits that this was based on largely undisputed facts.
- The Respondent relies on the judgments in Cobb, Adeniji, Barton and James in arguing that to elevate a sentencing hearing into a Newton hearing, the resolution of a factual dispute, as opposed to interpretation of undisputed facts, is necessary.
- In particular, the Respondent invites consideration of page 3 of the prosecution transcript, where prosecution counsel stated at B:
"The Crown's assessment as to quantity is that it's 3-plus kilogrammes. I know my learned friend takes some issue with that, and we'll seek to persuade your Honour that it should fall into category 2. Category 2, of course, indicative starting point of 1 kilogramme; category 1, indicative starting point of 5. So, frankly, the quantity is somewhere between the two."
- The Respondent also invites consideration of page 3 at H, where it is argued that prosecution counsel outlined the relevant incidents involving the Defendant, and the amounts of drugs alleged to have been involved:
"Then on 27 January 2021, he was arrested at Callys Barn, which is at Kilby Bridge Farm in Wigston. In the house were about 2.5 ounces of cocaine that now form the subject of count 10, along with a little over £160,000 in cash. I don't make the direct equivalence in the sense that that cash doesn't directly increase the volume of drugs so far as categorisation is concerned; but that £160,000, in broad terms, is the value of about 4 kilogrammes of cocaine, cocaine selling for about £40,000 a kilo."
- Further, the Respondent invites consideration of page 2 of the mitigation transcript, where at paragraph D defence counsel stated:
"It's plain that he is involved in relation to the significant dates: on the evidence, on 2 April, all of 2020, 7 April, 14 April and 23 April. That is of some significance. It amounts to some 2.5 kilos. No issue in relation to the evidence in relation to the 2.5 kilos. Certainly it was his understanding that, when the case was put to him and the conspiracy was laid bare in relation to his involvement, it's plain that it was predicated on certainly the 2.5 kilos over that period of time."; and
"Of course, some of this money was due to his profits from drugs, but it would be wrong to depart from the 2.5 kilos. It may make, actually, no real significant difference. I submit that it doesn't, because the sentencing guidelines make it plain that category 1, 5 kilos; category 2 is 1 kilo. Therefore, it's going to be somewhere towards the top end of category 2; the lower end, we submit, of category 1, but handsomely, we say, top end of category 2. That does make a difference in relation to the starting point. There is some overlap."
- The Respondent highlighted the enquiries made by the judge about the Defendant's involvement in the sale of dogs, and whether that was a cash-based business. The Respondent in particular invites consideration of page 3, paragraph E of defence counsel's transcript:
"I make it plain that, whichever way one looks at it, this will be either undeclared income -- therefore, criminal property -- or part and parcel of the drugs trade and, therefore, again -- because, of course, he's pleaded guilty to the £160,000 as being criminal property, so I don't go behind that. The issue that I raise is that it would not be safe simply to say, because of that, it's likely to be 3.5 kilos."
- The Respondent states there is no transcript of the sentencing, but there is a note entitled "Specific sentencing remarks", and thereafter quotes as per the content of paragraph 21 above.
- The Respondent relies on the observation of defence counsel's observation that "It may make, actually, no real significant difference. I submit that it doesn't", regarding whether the Judge agreed with the defence assertion that the defendant should be sentenced on the basis of 2.5 kg or the prosecution assertion of 3+kg.
- The Respondent concludes that from the sentencing remarks, it appears that the judge sentenced on the basis of "between category 1 and 2", and invites a review of the comments of prosecution counsel where they said:
"we'll seek to persuade your Honour that it should fall into category 2. Category 2, of course, indicative starting point of 1 kilogramme; category 1, indicative starting point of 5. So, frankly, the quantity is somewhere between the two"; and defence counsel where they said:
"the sentencing guidelines make it plain that category 1, 5 kilos; category 2 is 1 kilo. Therefore, it's going to be somewhere towards the top end of category 2; the lower end, we submit, of category 1, but handsomely, we say, top end of category 2. That does make a difference in relation to the starting point. There is some overlap."
- The Respondent's cases is that for a sentencing hearing to constitute a Newton hearing for the purposes of remuneration, there must be a "substantial conflict between the two sides". The Respondent submits that any disagreement between the prosecution and defence in relation to the amount of drugs was not so "substantial" as to justify this hearing being treated as a Newton hearing.
- It is on that basis that the Respondent submits that the appeal should be dismissed.
Relevant Legislation
- The applicable regulations are The Criminal Legal Aid (Remuneration) Regulations 2013 ('the 2013 Regulations'), as amended in 2018.
- The Respondent referred me to paragraph 1(1) of Schedule 2 of the 2013 Regulations, which 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 (1982) 77 Cr App R 13 CA."
- Schedule 2, Part 1, Paragraph 2(4) of the Remuneration Regulations sets out 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.
- The definition of "cracked trial" is set out at Schedule 2 paragraph 1 of the 2013 Regulations 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;
Analysis and decision
- I agree with the Respondent that the question of whether or not there was a Newton hearing is a fact sensitive question.
- The Respondent, helpfully, highlights the approach in R v Hoda and R v Makengele. Both decisions assist the Appellant, in that they recognise the hearing of live evidence is not a pre-condition of a finding a Newton hearing has taken place, nor is the formal listing of one.
- However, the Respondent also highlights a series of further decisions which cite examples of where the court has drawn a distinction between findings of fact, and interpretation.
- In R v Davies [2023] EWHC 2195 (SCCO), the court discussed the potential distortion of remunerated claims for Newton hearings if the bar is set too low, in terms of those hearings where a finding of fact is made as compared with an interpretation of otherwise agreed matters.
- In R v Cobb [2024] EWHC 1322 (SCCO) Costs Judge Rowley observed:
"10. It does not seem to be uncommon in drugs conspiracy cases for there to be a considerable scope for each defendant to seek to lessen their involvement in the conspiracy. The prosecution points to the evidence which suggests greater culpability and the judge is required to take all of this into account when sentencing conspirators who have been convicted.
11. I do not think that in such situations, the threshold for establishing that a Newton hearing has taken place, rather than a sentencing hearing involving pleas of mitigation by each defendant's advocate, is necessarily made out." and;
"14. In this case, it does not seem to me that the appellant has discharged the burden of establishing that the hearing was a Newton hearing in substance. The aim of the basis of plea, as described by the appellant's note, was little more than an attempt to place the defendant more favourably on the scale of culpability when it came to imposing the sentencing guidelines. Whilst Mr Kaye submitted that this was sufficient to demonstrate a factual matter in dispute, I do not think the issue was material to the sentencing.
15. Submissions which tend to lessen the defendant's blameworthiness are of course the purpose of mitigation generally and in my view the determining officer was correct to assess the fee in this case based upon there being a cracked trial followed by a sentencing hearing at which pleas in mitigation were made."
- In mitigation, Defendant counsel accepted the Defendant was a "commercial supplier from the Leicester group in terms of supplying to others on a wholesale basis". Defendant counsel also accepted that "it's plain that [the Defendant] is involved in relation to the significant dates: on the evidence, on 2 April, all of 2020, 7 April, 14 April and 23 April. That is of some significance. It amounts to some 2.5 kilos. No issue in relation to the evidence in relation to the 2.5 kilos. Certainly it was [the Defendant's] understanding that, when the case was put to him and the conspiracy was laid bare in relation to his involvement, it's plain that it was predicated on certainly the 2.5 kilos over that period of time."
- Thereafter, Defendant counsel explicitly recognised that the prosecution was inviting the court to draw an inference between the cash amount found in the Defendant's possession and the amount of cocaine by weight that the Defendant could be held responsible for.
- The Appellant's case was to recognise that a portion of that £160,000 would be attributable to the Defendant's involvement in the drugs conspiracy, but no more than 2.5kg of cocaine, with the balance attributable to the Defendant's involvement in breeding thoroughbred puppies as well as from other lawful income sources.
- The Defendant had pleaded guilty to the £160,000 being undeclared income. It was therefore a matter of what portion of that sum was attributable to the weight of cocaine attributable to the Defendant. The judge went so far as to hear submissions that the Defendant could earn in excess of £10,000 per puppy, such that it wouldn't take much to make significant inroads to the £160,000.
- When one considers Defendant counsel's transcript as a whole, very limited time was spent engaged in addressing the judge regarding the weight of cocaine. This is very likely because even on the prosecution case as to weight, the category of offence would not be altered. It was more an issue of which end of the scale within categories the offence might sit.
- The prosecution counsel's transcript is consistent, for example acknowledging that the Defendant was a "commercial supplier of cocaine who bought from the Leicester group, generally in half-kilogramme quantities, in order to supply dealers beneath him."
- The transcript also demonstrates an acceptance that category 2 would apply, because the prosecution was not suggesting possession of 5kg or more (which would be the required amount for category 1 to apply). The same key dates as referenced in paragraph 48 above, as well as other key dates.
- The accepted dates of orders/deliveries of half a kilogram of cocaine each time do not add up to more than the 2.5kg the Defendant had admitted to. The prosecution case of up to 4kg was based on the discovered £160,000 in cash and what the equivalent amount would be in weight, based on approximately £40,000 per kg.
- There was wide-ranging agreement as to the factual matrix, and by the hearing dates we are concerned with the only issue was an invitation to the court to interpret the holding of £160,000 as equating to handling 4kg of cocaine. It was a basic, albeit reasonable, conclusion to invite the court to draw.
- However, it would not have changed the category and at best a limited impact on role given what was known at the time, and given the margins of weight in issue. As to the £160,000, the defence gave a fairly straightforward explanation (as detailed above).
- Neither the prosecution or defence versions were tested in a manner that would lead me to conclude findings of fact were made, as compared with what inferences could be drawn from the cash amount found and how that cash had been accumulated.
- In my view, the threshold for a Newton hearing is not met and the appeal is therefore dismissed.
COSTS JUDGE NAGALINGAM
