Procedure before sentencing: Newton hearings

Where a defendant has pleaded guilty in a trial, but disputes any significant facts with the prosecutor that could affect sentencing, the defence lawyer should inform the prosecution of the areas of dispute.

If the prosecution accepts and agrees with the defendant’s account, this should be put in writing and given to the judge before the sentencing hearing. If the prosecution rejects the defence version of the areas of dispute, this should also be outlined in writing.

The judge may approve the prosecution’s acceptance of pleas, but he is not bound by any agreement between the parties. Where such disputes arise, the judge may decide to hold a hearing without a jury present to resolve the issues. This is known as a Newton hearing.

A Newton hearing may also be held where a defendant has been found guilty at trial, but the issues in dispute which could affect sentencing were not touched upon in the trial and therefore were not resolved by the verdict of the jury.

In the course of a Newton hearing, the prosecution will call evidence and test defence evidence in the usual manner – including calling witnesses to give evidence if required. The defence will also present its evidence. If the issue is within the exclusive knowledge of the defendant they should be prepared to give evidence. Where they fail to do without good reason, the judge may draw such inferences as they think fit.

The ordinary rules and principles regarding burden and standard of proof apply – the prosecution must prove all the elements beyond reasonable doubt.

After hearing all the evidence, the judge will provide a reasoned decision as to his findings of fact. Defence mitigation will be heard and then sentence passed.

In R v Underwood (2005), the Court of Appeal set out scenarios where a Newton hearing is not required or not appropriate. These are:

• if the dispute is essentially of a minor point and the judge’s sentence would be the same no matter which version is adopted;
• the defence version can be regarded as absurd or obviously untenable;
• where the issue requires a verdict from the jury, eg, whether there is the necessary intent under s 18 of the OAPA 1861 (GBH);
• where the findings of fact would be inconsistent with the pleas to the counts accepted (particularly important when dealing with multi-count indictments and cases involving several defendants);
• where there is a joint enterprise, the judge must consider the seriousness of the joint enterprise and set the individual pleas into context;
• where matters of mitigation are the issues in dispute. However the court can allow the defendant to give evidence of matters of mitigation which are within their own knowledge, eg, defendants in drugs cases claiming acted under duress, not amounting in law to a defence.

After having heard evidence about the disputed facts, a judge must not find the accused guilty of an offence more serious than the one to which they have pleaded guilty.

If the judge finds in favour of the offender’s version of events, they are sentenced on that basis. As a consequence, any credit due to them for an early guilty plea is awarded. Therefore, they may still be entitled to an up to one-third reduction of sentence on the basis of pleading guilty at the earliest opportunity.

However, if the conclusion is for the prosecution and the judge feels the hearing was unnecessary and the conduct of such resulted in distress for the witnesses, or that the offender lacks remorse for the offence, the judge might reduce the discount. It is for the judge to decide whether the offender should lose all or just part of their entitlement to an early guilty plea credit. A full reduction is generally only justified in exceptional circumstances.

The risk of loss of guilty plea credit in a Newton hearing is of importance to an offender and they should be told about the consequences in conference before any such dispute is alleged.