Newton hearings play a crucial role in resolving disputes over the facts of a case, particularly concerning sentencing. It allows the Court to determine the specific circumstances and degree of culpability in a criminal offence, ultimately impacting the sentence handed down to the defendant. And remember, this can encompass a person’s liberty if they are facing a prison sentence. Therefore, it is crucial to understand the advantages and risks of a Newton hearing and when it is appropriate to push for one.
What is a Newton hearing?
A Newton hearing is a trial of particular facts in issue between the prosecution and defence, which are material to the sentence that may be imposed following a guilty plea. A Newton Hearing can be heard in either the Magistrates Court or the Crown Court, depending upon the seriousness of the charge. They are heard before a judge alone rather than a jury. The judge will decide whether they believe the defendant and their version of events. Representations will be made by both the prosecution and defence and the defendant will normally give evidence.
The term ‘Newton hearing’ finds its roots in the 1982 case of R v Newton [1983] Crim LR 1982. The husband had committed ‘buggery’ against his wife. Under the law at the time, buggery, in terms of anal sex between a man and a woman, was illegal. Mr Newton argued that his wife consented to the sexual act, a fact which, although immaterial to whether he was guilty or not, mattered a great deal when it came to sentencing.
When is a Newton hearing considered appropriate?
If a defendant is convicted of a crime by a jury in the Crown Court, as part of the sentencing process, the Judge must determine any aggravating and/or mitigating circumstances. This involves making their own assessment of the facts and deciding which evidence to accept or reject. What is more, this process must take place in an open court and clear reasoning about how the final sentence was reached provided by the Judge.
When a person pleads guilty, they are doing so to the indictment/s (criminal charge/s), not necessarily to all the facts alleged by the prosecution. For example, in the circumstances of R v Newton, Mr Newton pled guilty to the charge of buggery but disputed claims by the prosecution that the act was non-consensual.
If the defendant does choose to dispute certain facts, it is up to them to set out the issues under dispute and present submissions to the prosecution and the Court. This point was confirmed by the Court of Appeal inleading case of R v Underwood [2004] EWCA Crim 2256 at para 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 submission presented to the Court by the defendant is called a ‘basis of plea.’ It sets out the facts of the events that led to the defendant being charged with the offence to which they have pled guilty. The aim is to remove the aggravating factors presented by the prosecution which could lead to a higher sentence.
If the basis of plea is accepted by the prosecution and the Judge or Magistrates, the sentencing process will proceed with the defendant’s version of events being considered. However, if the prosecution rejects the basis of plea and the Judge believes that the facts set out by the prosecution could have a substantial effect upon any sentence imposed, the Court will Order a Newton Hearing. Reference is made to the Sentencing Guidelines and if the court feels that the Defendant’s version of events would result in a more lenient sentence a Newton Hearing is more likely to be listed. A classic example is where the sentencing would fall into a community Penalty rather than a Custodial Sentence if the Defendant’s version of events were accepted.
When is it not appropriate to conduct a Newton hearing?
If the following applies, a Newton hearing is unlikely to be granted:
- The difference between the prosecutions and defendant’s versions of the facts would make no difference to the sentence handed down.
- As per the decision in R v Hawkins (1985) 7 Cr App R (S) 351, where the defendant’s version of events is “manifestly false” or “wholly implausible”.
- Where the facts asserted by the defendant do not contradict the prosecution’s case but constitute unrelated mitigation and the circumstances mean the Court is not required to accept whether they are true or not.
Whether or not a Newton Hearing is necessary involves careful consideration and clear advice. Skill and care is required to draft an effective “Basis of Plea” to allow the Prosecution and the Court to understand the issues and ensure that the Defendant’s version of events are clear and unambiguous.
Concluding comments
Newton hearings should not be undertaken lightly as there is a risk that any reduction in the eventual sentence handed down will be negated if the Court’s finding does not go in the defendant’s favour. Furthermore, as pointed out by Lyndon Harris 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. In the situation where D has required the prosecution to prove its assertions to the criminal standard and the result has been a success and a defeat on each side, why should D be punished, and the prosecution not? Is it not D’s right to require such assertions to be proved? The situation appears to be stacked against the defence, to induce acquiescence where arguments may legitimately be taken against the prosecution…”
Given the risk involved, it is essential to have an experienced, astute Criminal Defence Solicitor advising and representing you. Preferably, one who has a track record of success in Newton hearings. They have the expertise to weigh the risk and advise as to whether a Newton hearing would be in your best interests.
For criminal law advice and representation, please contact us immediately.
Reeds Solicitors is an award winning and leading top-tier criminal defence firm. For legal advice and representation, please contact us through our contact page here. Alternatively, you can phone 0333 240 7373, or email us at info@reeds.co.uk.