R v Sultan Bakr

1. In this appeal the Appellant contend the Determining Officer was wrong to assess the fee payable to the Appellant under Criminal Legal Aid (Remuneration) Regulations 2013 (the ‘2013 Regulations’) on the basis that a hearing (which took place on 21 January 2025) was not a Newton Hearing. The Appellant is a litigator under the scheme under the 2103 Regulations.

2. At the hearing on 1 August 2025, Mr, McCalla, counsel, appeared on behalf of the Appellant. The Legal Aid Agency (‘LAA’) were represented by Ms. Weisman, an employed solicitor.

3. The Defendant faced trial alongside four co-defendants for murder. It was alleged that Defendant was part of a joint enterprise attack by all defendants on the victim using a knife. The trial began on 1 July 2024 and at its conclusion, on 8 August 2024, the Defendant was convicted. The court adjourned the matter for sentencing to take place on 19 September 2024.

4. On 18 September 2024 the parties attended court for an application to break fixture and as a result of a breakdown between the Defendant and his then solicitors the representation order in the Defendant’s favour was revoked. The court granted a fresh representation order in favour of the Appellant solicitors dated 31 October 2024, and in the event sentencing took place on 21 January 2025.

5. Prior to the sentencing hearing both parties submitted sentencing notes which revealed a dispute as to the starting point for the minimum sentence under the sentencing guideline. The issue was whether the knife which was used in the attack was taken by the Defendant to the scene of the murder with the requisite intention. Reference was made by the Prosecution to section 4 of the guidelines (in Schedule 21 of the Criminal Justice Act 2003 ) and a minimum term of 25 years. The Defendant’s case was that the allegation that a knife was taken by him to the scene (either intending to commit an offence or intending to have it available as a weapon) was factually inaccurate.

6. In the event the Prosecution case on this point was rejected by the judge who said (amongst other things) that he could not be sure that the Defendant did take a knife to the scene, so that the starting point for sentencing purposes was 15 years. At the conclusion of the hearing the Defendant was sentenced to life imprisonment with a minimum term of 20 years.

7. The Appellant’s case is that a Newton hearing actually took place at that hearing on 21 January 2025.

8. Schedule 1, Part 1, Paragraph 2(8) of the Remuneration Regulations provides that:- (8) 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.

8. A “Newton hearing” is defined 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 ” (my underlining).

9. As is well known a Newton hearing involves the sentencing court making findings, usually following the giving of evidence, in order to determine the correct level of sentence; the purpose of the hearing is to enable the sentencing judge to determine such facts as are necessary in order to sentence the defendant. In R v Newton , it was said such a hearing can take three forms. The first is where disputed facts may be put before the jury for a decision. The further methods described by the Court in R v Newton are as follows: “The second method which could be adopted by the judge in these circumstances is himself to hear the evidence on one side and another, and come to his own conclusion, acting so to speak as his own jury on the issue it which is the root of the problem. The third possibility in these circumstances is for him to hear no evidence but to listen to the submissions of counsel and then come to a conclusion. But if he does that, then…where there is a substantial conflict between the two sides, he must come down on the side of the defendant.”

10. There is no requirement for a hearing to be listed as a Newton Hearing for it to be regarded as such for the purposes of the 2013 Regulations. I recognise and accept that a Newton hearing may be said to have taken place even where live evidence is not called, if there is a matter of fact in dispute between the parties which is material to sentencing, and resolved in some way prior to sentencing R v Hoda (SCCO Ref: 11/15) and R v Morfitt (SCCO Ref: 55/16) . However there still remains a requirement for evidence to be heard.

11. In this case not only was there no live evidence, the issue that called for consideration was to be determined on the evidence that was heard at trial. That is clear from the transcript. No evidence was served or referred to on the issue that I have described that was not given at the trial. In short the judge was asked to make up his mind on evidence that had been heard and considered at trial.

12. In R v Williams [2024] EWHC 3159 (SCCO) Costs Judge Leonard said in terms that it would not be right to conclude that there had been a Newton hearing where the judge at a sentencing hearing drew factual conclusions not from evidence presented at the hearing itself, but entirely from a previous trial. Albeit not a determinative observation in that case, I respectfully agree with it. It is clear that it must be correct on a proper reading of the wording of the Regulations themselves (in particular, the requirement that evidence be heard at any Newton hearing).

13. It also strikes me that application of sentencing guidelines will not infrequently require a judge to refer back to the evidence heard at trial in order to make determinations of fact on issues arising on the guidelines. If it were right that it were not necessary for evidence to be heard at what would otherwise be a sentencing hearing it would mean that many hearings which might be regarded as ordinary sentencing hearings would be treated as extensions of the trial, and compensated accordingly, This does not seem to me consistent with the proper working of the scheme under the 2013 Regulations.

14. It follows that in my judgment this appeal must be rejected even accepting, as I did and as did Ms. Weisman, the importance of the issue to be decided for the purpose of the sentence of the Defendant and that this made a substantial difference to the minimum sentence and was matter of very considerable importance.

15. There is however another point to be made (albeit one which was not explored in great detail, at least in the pre-hearing submissions). Even if I were wrong about this, it would not, I think, mean that the fee payable was one for trial as if the instruction of the Appellants and the grant of the Representation Order in their favour gave rise to a new case.

16. As is clear from Schedule 2 of the 2013 Regulations, a “case” means proceedings in the Crown Court against any one assisted person. The concentration for the purposes of deciding whether there is more than one case is on the case against the defendant (not the instruction of the litigator). Without referring to the many decisions by costs judges on this matter, it is clear that in order for there more than one case, in general there needs to be more than one indictment in the course of proceedings and that those indictments must charge substantively different cases. Here there was nothing new or substantively different about the case on which the Appellant were instructed.

17. Against this background and for the reasons explored at the hearing of this appeal, the case is to be regarded as a case where there has been a transfer of the representation Order under Regulation 13 of Schedule 2, so that the fee payable is to be calculated in accordance with the table that accompanies that Regulation.

18. If what occurred on 21 January 2025 had been a Newton hearing it would appear to me (without having heard detailed argument) that it would have added a day to the length of the trial that had earlier taken place and to have affected in that way the fee payable to the Appellants, which is 10% of the fee payable to the original solicitors of the case as payable for a Transfer After Trial and before Sentencing.

19. Ms Weisman was unable at the hearing to confirm the precise details of this and it is not necessary for me to make any finding on it. But in any event the fee payable would not, it seems to me, be payable as if this was a new case and as if the Newton hearing were a second trial, as appeared to underlie the Appellant’s case. Costs Judge Brown