- Newton hearing Procedure
- Matters of dispute not requiring a Newton hearing
- Evidence given in trial of co-defendant(s)
- Sexual Offences
- The effect on discount for a guilty plea
R v Newton 77 Cr. App. R. 13 CA sets out the methods to resolve disputed issues:
- In some cases it was possible to obtain the answer from the jury verdict; however R v Derek Malcolm Finch  14 Cr. App. R. (S) 226 held that where a factual question, material only to sentence, has not been resolved by the verdict of the jury, and has not been the subject of evidence called during the trial, it may be appropriate to conduct a Newton hearing after the verdict has been returned.
- The judge himself hears evidence and comes to his own conclusion (acting so to speak as his own jury).
- The judge listens to submissions (but hears no evidence). However if this course is adopted and there is substantial conflict between the two versions then the defence version would be accepted. Jordan Sheard v R  EWCA Crim 1161 demonstrates the difficulty in relying on this course of action. The Court of Appeal felt unable to disturb a sentence which the Attorney General had referred as being unduly lenient, as no evidence had been called following the provision of a basis of plea which contained assertions that the prosecution did not accept. If there is a dispute, the calling of witnesses is usually the best way of establishing the facts.
General guidance about the procedure to be adopted where the defendant pleads guilty on a factual basis different to that which appears from the prosecution's case was set down in R v Underwood  1 Cr. App. R. (S) 90. The key points are:
- It is the responsibility of the Defence to take the initiative and alert the prosecution to areas of dispute.
- The prosecution should not be taken by surprise and can take time to consider its position and the interests of justice.
- On ascertaining there is a dispute there are three options:
1. The prosecution may accept and agree the defendant's account. If so it should be reduced to writing and signed by both advocates (if unsigned the judge can ignore it , see R v Temple  EWCA Crim 2511). It should be provided to the judge, if possible before he is invited to accept pleas. If pleas have been accepted then it should be available before the sentence hearing begins.
2. If the prosecution rejects the defence version the areas of dispute should be identified in writing.
3. The prosecution may lack the evidence to positively dispute the defence account. This does not mean that the prosecution has to accept them. Even where the facts relied on by the defendant arise from his own personal knowledge the prosecution should not normally accept them unless it is supported by other material. The prosecution cannot "gainsay" the defendants account. (Approved in Attorney General's reference (No. 89 and 90 of 2007)  EWCA Crim 240.)
- After submissions from the parties the judge should decide how to proceed. He may approve the prosecution's acceptance of pleas. If the judge does not accept an important and relevant part of the basis of plea he should make it clear so that the defence can decide how they wish to proceed (R v Lucien  EWCA Crim 2004). However the judge is not bound by any agreement and could of his own motion order a Newton hearing and it is the duty of the prosecution to assist the court by calling evidence and testing any defence evidence (R v Beswick  1 Cr. App. R. (S) 343 and R v Munson  EWCA Crim 1258).
- The prosecution should call appropriate evidence and should test the evidence advanced by the defence. (See earlier reference to the case of Jordan Sheard v R  EWCA Crim 1161 on the desirability of calling live evidence rather than relying on written statements).
- Similarly the defence should call relevant evidence. If the issue is within the exclusive knowledge of the defendant he should be prepared to give evidence. Where he fails to do (and subject to any explanation) the judge may draw such inferences as he thinks fit.
- An adjournment to hold a Newton hearing should usually be unnecessary. Where there is a late guilty plea and relevant witness are at court it should proceed immediately.
- The judge may reject the prosecution evidence. Equally he can reject assertions advanced by the defendant, or his witnesses, even if the prosecution does not offer positive contradictory evidence.
- The judge must apply the criminal burden and standard of proof and any relevant directions he would have given to a jury e.g. Turnbull guidelines if identity is in issue.
If during the trial the defendant changes his plea but on a different basis to the prosecution case he should be given an opportunity to call evidence. (R v Mottram  3 Cr. App. R. (S) 123).
Guidance on bases of plea can be found in the Criminal Practice Direction which came into force on 7 October 2013 at Part CPD Sentencing B: DETERMINING THE FACTUAL BASIS OF SENTENCE:
Nicholls v Director of Public Prosecutions  EWHC 4365 (Admin) held that there was no requirement for the court to address the question of guilt at the Newton hearing. The purpose of a Newton hearing is to resolve issues between prosecution and defence which have been identified before the hearing and recorded in writing in the basis of plea. However one of the consequences of a Newton hearing, which the defence have to accept, is that the court may hear evidence which may cast the case in a different light to the way the prosecution puts its case on paper.
R v Underwood  1 Cr. App. R. (S) 90 also explained the limitations on the Newton hearing procedure and set out situations when a court is not obliged or it would be inappropriate to hold a Newton hearing. These are:
- Where the impact of the dispute would have a minimal effect on the eventual sentence. (See R v Hawkins 7 Cr. App. R. (S) 351).
- The defence version can be regarded as absurd or obviously untenable.
- Where the issue requires a verdict from the jury e.g. whether there is the necessary intent under section 18 of the OAPA 1861 (GBH).
- Where the findings of fact would be inconsistent with the pleas to the counts accepted. Care needs to be taken when dealing with multi count indictments and cases involving a number of defendants.
- Where there is a joint enterprise the judge must bear in mind the seriousness of that joint enterprise and so set the individual pleas into context.
- Generally matters of mitigation are not dealt with by a Newton hearing. However it is always open for the court to allow the defendant to give evidence of matters of mitigation which are within his own knowledge, for example defendants in drugs cases asserting they were acting under duress, not amounting in law to a defence (R v Broderick  15 Cr. App. R. (S) 476).
- Where the facts put forward by the defence do not contradict the prosecution evidence the following propositions apply:
- The defendant can put forward mitigation through counsel or by calling evidence. If it is done through a pre-sentence report then the prosecution and court must be notified and the issue resolved (R v Tolera  1 Cr. App. R. (S) 25).
- The prosecution is not bound to challenge the defence assertions through cross-examination.
- If the defence knows that the prosecution has rebuttal evidence then they are almost duty bound to call evidence to support their assertions (R v Noonan  2 Cr. App. R. (S) 35).
- Even if the prosecution do not challenge the defence assertions the court does not have to accept them.
- In relation to extraneous matters of mitigation the civil burden of proof applies.
A judge sentencing a defendant who has pleaded guilty is not bound by rules of admissibility applicable for trial and may take into account evidence given during the trial of a co-defendant and contents of witness statements. However the Judge must bear in mind:
- That the evidence given during the trial was not tested by cross-examination on behalf of the defendant who pleaded guilty.
- That self serving statements are likely to be untrue.
Therefore the defendant to be sentenced should be given a proper opportunity to give evidence of his version of the facts. (R v Smith (Patrick)  10 Cr. App. R. (S) 271 as applied in R v Simpson  EWCA Crim 1919).
The restrictions under section 41(1) of the Youth Justice and Criminal Evidence Act 1999 relating to adducing evidence and cross examining about the complainants sexual behaviour also applies to Newton hearings.
The effect on discount for a guilty plea
R v Underwood  1 Cr. App. R. (S) 90 provides guidance as follows:
- Where the Newton hearing is resolved entirely in the defendant's favour, credit for a guilty plea should not be reduced.
- If however the defendant is disbelieved, or obliges the prosecution to call evidence from the victim, who is then subjected to cross-examination, which, because it is entirely unfounded, causes unnecessary and inappropriate distress, or if the defendant conveys to the judge that he has no insight into the consequences of his offence and no genuine remorse, these are all matters which may lead to a reduction in the discount.
- In exceptional cases the normal entitlement to credit may be wholly dissipated by the Newton hearing. In such cases the judge should explain his reasons.
This approach has been confirmed by the Sentencing Guideline Council's guideline on guilty pleas which states at paragraph 4.3:
"The level of reduction should reflect the stage at which the offender indicates a willingness to admit guilt to the offence for which he is eventually sentenced:
(iv) If after pleading guilty there is a Newton hearing and the offender's version of the circumstances of the offence is rejected, this should be taken into account in determining the level of reduction."
This guideline was considered by the Court of Appeal in R v Martin  EWCA Crim 2565. It was held that it would be difficult to think of any circumstances in which a judge ought to give an indication of sentence in advance of a Newton hearing, not only because the judge would find it hard to predict what basis he would be sentencing upon, but because he will not know to what extent he will need to reduce the amount of credit for his plea. It follows that there is a wide discretion on the part of the sentencing judge as to the extent of the reduction to be given in these circumstances.