The Newton Hearing,
a return to earth?
In our last article we considered how in the hands of the thoughtful Advocate a Basis of Plea
not only provides assistance to the Court, protects the Defendant, but also means that at the
moment of sentencing the key document in front of the Tribunal is a Defence generated
document. As promised we return now to the linked and related topics of a Newton Hearing.
How often has an Advocate found him or herself explaining what a Newton Hearing is to the
lay client with the words, “a Newton Hearing: it’s not named after Isaac Newton who had the
apple land on his head, rather a case called Newton, though it equally reflects a Court
weighing-up the evidence?” A Newton Hearing is so much more than that, and the
ramifications, certainly for the Defendant, can be quite as profound. Recently concerns have
been raised that practitioners in the Magistrates’ and Crown Courts, and Clerks/Lay Benches
in the lower courts, lack a detailed understanding of the area of law, leading either to
pointless and wasteful hearings, or defendants being sentenced on bases that do not truly
reflect the extent of their criminality.
Background
The Newton hearing is entirely a creation of case law. There is no statute that deals with the
subject – but it is at least codified in Practice Direction IV.45.11 that gives some basic
guidance. The details on how the law has evolved are to be found in the main cases of R. v.
Newton (1983) 77 Cr. App. R. 13, R. v. Hall (1984) 6 Cr. App. R, (S) 321 and R. v.
Underwood [2005] 1 Cr. App. R. 13. In Newton, the Defendant was charged with buggery of
his wife. At the time of the case consent was not a defence to this charge. He accepted the
act had occurred; his only option was to plead guilty, claiming that it was consensual, which,
were his story accepted, would provide significant mitigation. As for the differences between
the Prosecution and Defence the Lord Chief Justice described these as, “about as sharp a
divergence on questions of fact as could possibly have been imagined.” No evidence was
heard, the Defendant was sentenced to eight-years custody, the Judge making it clear as he
did so that this was on the Crown’s view of the case. On appeal, the Court stated that where
a guilty plea was entered on a basis that departed significantly from the Crown’s version of
events, there were three possible avenues to be taken:
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1. The Jury could hear the evidence and come to a conclusion, as in a normal trial.
This might be appropriate when, for example, the question concerned the
difference of intention between in s20 Grievous Bodily Harm or s18;
2. The Judge could hear evidence himself and come to a conclusion; or
3. The Judge could hear submissions from Counsel for both sides, in which case he
would be obliged to sentence on the version submitted by the Defendant.
The Court found the Judge, despite saying he would sentence on the accused’s version, had
failed to take any of these courses, and ordered his instant release from prison.
Significant difference to sentence
In 1984, the matter arose again in Hall, in which the Defendant was charged with an assault
occasioning Actual Bodily Harm. The Defendant pleaded guilty. Albeit that there was
divergence in the extent of the assault and the background the Judge did not hear evidence;
he rejected the contention put forward in mitigation that the attack had been provoked by the
victim. When sentencing, he made it clear that he did so on the basis that the Crown’s case
was correct. The Court of Appeal held that the sentence imposed was not excessive, but
clarified that in such a situation a judge must decide whether the difference between the
cases might “materially affect his sentence.” If it might, he must adopt one of the courses in
Newton. In this case, the Defendant admitted causing the major injury, and the other
matters would not make a material difference, but the Judge’s words may have “occasioned
in the mind of the appellant a sense of grievance. Where the sentence upon the prosecution
version is likely to be the same as the sentence imposed if the appellant’s version is
accepted, it is undesirable and unnecessary that the learned judge should be seen to be
adopting the prosecution’s version...indeed, he should specifically proceed on the appellant’s
version of events.”
Similarly in R. v. Bent [1986] Cr App R (S), which concerned a youth who stole from a
supermarket, and assaulted the security guard who tried to stop him. The guard alleged a
punch in the face and one strike with a stick. The Defendant denied actual blows, but
accepted he had pushed him and threatened him with a stick. The Court said, "[Our view] is
that the case of Newton was not intending to lay down any requirement that in cases where
there was not a dispute of vital importance affecting sentence, but only a difference in
emphasis, a difference in degree, there should necessarily have to be a slavish following of
the suggestion made in the case of Newton as to the correct procedure if there was such
substantial conflict." They decided that the gravamen was that the appellant had resisted
arrest. As there was no allegation of injury to the officer, and it was only common assault,
"this was not in our opinion a case in which there was a substantial conflict."
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The need for a Newton can also arise when the Pre-Sentence Report reveals the differences
between the Prosecution and Defence: a Defendant who has pleaded guilty would advance
an account of the offence which the Prosecution did not (or felt unable to) challenge, but
which the court felt unable to accept. In this situation it was desirable that the court should
make it clear before sentence that it did not accept the Defence account. Failing any other
resolution, evidence could be called and the prosecution could explore matters that the court
wished to be explored (see R. v. Tolera [1999] Cr. App. R. 29). The Court held that if a
Basis of Plea had not been entered, but a Basis was apparent from the PSR, the Defendant
should adopt this as his Basis and a Newton could then follow. Of course as indicated we
have previously advised in the strongest terms as to the efficacy of a Basis of Plea (see
news@ONE 2nd edition).
Apart from the variation in Basis not making a “significant” difference to sentencing, there are
other situations in which a Newton need not be held. If the Judge finds the Defendant’s
version “manifestly absurd” (R. v. Hawkins (1985) 7 Cr App R (S) 351) he does not have to
hold the hearing. Even in the situation where the Crown does not offer positive evidence to
contradict particular contentions of the Defendant, the Judge can sentence on the Crown’s
basis if the evidence put forward by the Defendant is not credible: (R. v. Kerr (1980) 2 Cr
App R (S) 54) where the Defendant pleaded guilty to importing drugs, but claimed in
evidence that until he left the plane he thought he was carrying blocks of marble in his
suitcase. If matters raised in the Basis form extraneous mitigation rather than having an
evidential bearing on the Defendant’s guilt, the Court should leave these until sentencing.
The “Gainsay” fudge
It is often believed that where the matters put forward in the basis are outside the knowledge
of the Crown, the Crown cannot contradict them, and the Defendant’s account should be
accepted. This is not, in actual fact, the case. In Underwood, which is now the leading case
on Newton hearings, lengthy guidance was given by the Court of Appeal on the procedure to
be adopted; this included a concern that the principles enunciated in earlier cases were not
being applied correctly. It was noted that the situation where the Crown does not have the
evidence to make a positive challenge to the Defendant’s account is often the most difficult
to resolve. The Court held that if a Defendant included in his Basis matters that the Crown
were not in a position to dispute, it should not automatically accept the Basis, unless it was
supported by other evidence.
The Court is not bound to accept a Defendant’s assertion simply because the Crown cannot
“gainsay” it. The Court is not required to permit a fudge, with the Prosecution and Defence
agreeing to disagree.
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The Court of Appeal recently revisited this in R. v Lee Milson [2010] EWCA Crim 2189. In
this case, which is well-worth reading, the Defendant had pleaded Guilty to possessing 44
grams of cocaine with intent to supply, albeit on a social scale to a group of drug-using
friends and without financial profit. A significant sum of cash had been found at his premises
along with scales and other paraphernalia. A Basis of Plea concerning the extent of the
supply stated that the Defendant had gone to the dealer to purchase a bulk order of drugs to
be shared out among his friends. This was accepted, with the Prosecutor noting, “This can’t
be gainsaid,” on the paperwork.
In the Judgement, it is revealed that the Single Judge, when granting leave to appeal noted
that the Basis of Plea “should never have been accepted” and could well be considered
“absurd.” The Court was highly critical of the frequent use of the word “gainsay” as a
“substitute...for analysis.” Its use “frequently represents a lazy way of justifying a failure
properly to analyse the circumstances of a particular case.” If anything comes of this case
it may well be that Prosecutors, quite properly, are more reluctant to accept bases,
especially in similar situations where they may not be able to factually contradict them, but
strong inferences could still be drawn.
Similar criticism had in fact been made in R. v. Temple [2008] EWCA Crim 2511, albeit of
the Defence; where a ground of appeal advanced had been that the Sentencing Judge had
ignored a Basis of Plea. This document was labelled “Potential Basis,” advanced for the
purposes of a Goodyear indication (R. v. Goodyear [2006] 1 Cr.App.R (S). 23), but
containing many matters about which the Crown could have no knowledge. The Crown had
not signed this document; indeed in opening the Prosecution reiterated that the contentions
were not, and had never been accepted. The Court was surprised this ground of appeal had
been advanced, and made general comment about the number of practitioners who have
taken to “ignoring” the guidance of Underwood.
The Unnecessary Newton
Many practitioners will have noticed that lower courts, in particular the Youth Court, are often
hasty to order a Newton hearing in circumstances where the sentence would not be affected.
The difficulty is, of course, that there is no specific guidance on what a “material difference”
is, but it appears sometimes to be interpreted very narrowly. Consider the scenario of a 15year old Defendant of previous good character. He pleads guilty to punching his friend
(another youth) once, but denies repeated punching and kicking. He accepts causing the
injuries. The Magistrates are required to make a Referral Order in those circumstances
unless they are proposing to pass a custodial sentence, make a hospital order or make an
absolute discharge (s.16(b), (c) of the Powers of Criminal Courts (Sentencing) Act 2000). In
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light of the Defendant’s previous good character and the injuries sustained a Referral Order
is clearly the appropriate sentence. However, the Magistrates can (and, it seems, often will)
order a Newton Hearing simply to determine the length of such an order (the difference
between a four-month or six-month Order). It is respectfully submitted that such a decision
is nonsensical in light of the fact that such a trial of issue will frequently require very young
witnesses to give evidence. Even more absurd is where Magistrates consider a “material
difference” to mean the difference between 70 or 100 hours of unpaid work.
The same arguably goes for Benches who order a Newton when both versions of events fall
within the same bracket in the Sentencing Guidelines. If a Defendant accepts a head-butt
(putting him in the middle bracket for battery), but denies shouting certain words of abuse at
the victim, which is not a feature that increases the sentence, then even if the Crown refuse
to accept his basis, should a Newton be necessary? Surely not: this is all the more so given
the detailed and considered Pre-Sentence Reports that are generally available leaving the
Bench to consider the professional opinion of the Probation Office as to a particular
requirement attached to a Community Order. A Newton in such a case is wholly
unnecessary; again one might want to consider Bent cited above.
Committals for Sentence
Thus far we have canvassed whether a Newton is required, and where it may not be. The
Legal System throws up some interesting oddities. In R. v. Warley Justices ex parte DPP
[1999] 1 Cr App R (S) 156 it was held that if a Newton was necessary to determine whether
the offence was so serious that the Defendant should be committed for sentence, the
Magistrates’ Court should hold one before making the decision on where to sentence. We
can all work out the logical extension to this, and thus it should come as no surprise that a
Defendant can have two Newton hearings: Gillan v DPP [2007] 1 WLR 2214 (DC)
concerned the question of whether, following a Newton in the Magistrates’ Court and the
subsequent committal of the Defendant for sentence at the Crown Court, the Crown Court
had a power to hold another Newton if the facts continued to be disputed. The Court of
Appeal found that the Crown Court does have the power to hold a second Newton if it was in
the interests of fairness and justice to do so, but this does not mean that a court should
automatically agree to the proposed hearing where Magistrates had already conducted one
and made proper findings of fact. A Defendant would generally have to point to a significant
development in order to justify a further hearing. As for whether the Court of Appeal can
itself hold a Newton where a Crown Court Judge accepted a Basis, the reader needs to look
again at Milson.
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General points for the Advocate
So to draw various threads together both from this, and the previous article it is for the
Defence to alert the Crown and Court to any areas of dispute that may affect sentence. The
safest course is to always to prepare a Basis of Plea; failure to do this may result in the client
being sentenced on the wrong basis. The decision as to whether or not to hold a Newton
rests with the court alone, but both sides should make submissions as to necessity.
Is a Newton in the interests of the lay-client? Is a Defendant who puts forward a Basis that
will not significantly affect his sentence, and who is then later disbelieved in a Newton
deprived of much of the credit his guilty plea would have attracted? For this is the oft-cited
concern of the Advocate. In fact this is not so. The wording of Underwood makes it quite
clear that the Judge “may” reduce credit for the Guilty plea if the Accused is disbelieved,
causes unnecessary distress to witnesses by calling them, or shows no insight or remorse,
and that only in “exceptional” cases might credit be wholly dissipated. That said, Judges
(and Prosecutors) do commonly threaten the removal of credit simply for having a Newton.
Advocates need to recognise this and be ready to make the appropriate submissions.
What of the role of the Court of Appeal? In R. v. Gardener [1994] the Court of Appeal said it
would not normally consider an argument that the Sentencer had failed to order a hearing
unless the possibility of such a hearing was raised unequivocally and expressly in the Crown
Court (See also A-G’s Refs (Nos. 3 and 4 of 1996) [1997] 1 Cr App R (S) 29).
In the lower courts, where the Bench may look to Advocates for guidance as to whether a
Newton is necessary, as ever it pays to work out the Sentencing Guideline bracket
appropriate to both versions of the event. If they are both in the same bracket, succinct and
clear submissions should be made to the Bench.
Robert Bryan, Lydia Waine and Charlotte Compton
Chambers of Michael Hubbard Q.C. and Karim Khail Q.C.
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