A Newton hearing is used when a defendant pleads guilty to an offence but disputes part of the prosecution’s account that could materially affect the sentence. The defendant may accept responsibility for the offence while denying that it was committed in the way alleged, or disputing facts that would place the offence in a higher category of seriousness.
The hearing operates much like a trial, but without a jury. Evidence may be called and witnesses cross-examined before the court determines the facts on which the defendant will be sentenced. The decision to proceed requires considered advice from a criminal defence solicitor. If the defendant succeeds, they may receive a substantially lower sentence. If the court rejects their account, some of the credit for the guilty plea will normally be lost, reducing or even outweighing any sentencing advantage the defendant hoped to achieve.
What happens at a Newton hearing?
The prosecution presents evidence supporting its account, and its witnesses may be cross-examined by the defence. The defendant may give evidence and call witnesses but does not have to prove their version of events. The prosecution must establish the disputed facts so that the court is sure.
After hearing the evidence and submissions, the judge or magistrates make findings about what happened. Those findings form the factual basis on which the defendant is sentenced.
The procedure takes its name from R v Newton (1982) 4 Cr App R (S) 388. The defendant pleaded guilty but disputed the prosecution’s allegation that the sexual act had taken place without consent. Although consent did not affect his guilt under the law at that time, it made a substantial difference to the seriousness of the offence and the sentence.
When will the court order a Newton hearing?
When a person pleads guilty, they are admitting the criminal charge, but not necessarily all the facts alleged by the prosecution. For example, in R v Newton, Mr Newton pleaded guilty but disputed the prosecution’s claim that the act was non-consensual.
If the defendant disputes certain facts, it is for the defence to identify the issues and alert the prosecution and the court. This point was confirmed by the Court of Appeal in the leading case of R v Underwood [2004] EWCA Crim 2256 at paragraph 3:
“The starting point has to be the defendant’s instructions. His advocate will appreciate whether any significant facts about the prosecution evidence are disputed and the factual basis on which the defendant intends to plead guilty. If the resolution of the facts in dispute may matter to the sentencing decision, the responsibility for taking any initiative and alerting the prosecutor to the areas of dispute rest with the defence. The Crown should not be taken by surprise, and if it is suddenly faced with a proposed basis of plea of guilty where important facts are disputed, it should, if necessary, take time for proper reflection and consultation to consider its position and the interests of justice. In any event, whatever view may be formed by the Crown on any proposed basis of plea, it is deemed to be conditional on the judge’s acceptance of it.”
The document presented by the defendant is called a basis of plea. It sets out clearly and unambiguously the factual basis on which the defendant pleads guilty and identifies any facts alleged by the prosecution that are disputed.
If the prosecution and the judge or magistrates accept the basis of plea, the defendant will be sentenced on that basis. If the prosecution rejects it, the court will consider whether the difference between the two accounts would materially affect the sentence. If it would, the court may order a Newton hearing.
A basis of plea must be drafted carefully. In some cases, it can narrow the prosecution allegation without creating a factual dispute that materially affects the sentence. The defence can then make submissions explaining why the court can sentence on that basis without ordering a Newton hearing. In other cases, the difference between the prosecution and defence accounts will clearly affect the sentence and evidence will need to be heard.
Reference will usually be made to the relevant sentencing guideline. A classic example is where the defendant’s account would result in a community order, but the prosecution’s version would place the offence above the custody threshold.
When is a Newton hearing unnecessary?
A Newton hearing will usually be unnecessary where:
The difference between the prosecution and defence accounts would make no material difference to the sentence.
The defendant’s basis of plea is manifestly false and does not justify the hearing of evidence.
The facts advanced by the defendant do not contradict the prosecution case but amount to separate mitigation that the court does not need to resolve before sentencing.
The court cannot reject a basis of plea merely because it appears unlikely or conflicts with the prosecution evidence. If there is a genuine factual dispute that could materially affect the sentence, evidence will ordinarily need to be heard.
Whether a Newton hearing is necessary requires careful consideration. Skill and care are also required when drafting a basis of plea so that the defendant’s account and the facts in dispute are clear and unambiguous.
Concluding comments
Newton hearings should not be undertaken lightly. If the court rejects the defendant’s account, some of the credit for the guilty plea will normally be lost. The sentencing reduction that would otherwise have been available will usually be halved and may be reduced further if witnesses have been called.
As Lyndon Harris observed in Newton Hearings: A Procedure Stacked Against the Defence:
“The practice [of Newton hearings] operates as a disincentive to opt for a Newton hearing. Many defence advocates avoid Newton hearings because, unless they are resolved entirely in the defendant’s favour, some credit is likely to be lost and it may be that any gains made by the Newton hearing are swallowed up (or worse, outweighed) by the reduction in credit… There is no ‘remission’ for being successful in part, save that the credit for pleading was not reduced further.”
Given the risk involved, it is important to obtain advice from a criminal defence solicitor who can assess the evidence, draft the basis of plea and advise whether a Newton hearing is in the defendant’s interests.
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