R v Albert Asanaj & Anor

Senior Costs Judge Rowley:

1. These are the combined appeals of (1) Butts solicitors, who represented Albert Asanaj (2) Wolfe Law solicitors, who represented Granit Asanaj and (3) Daniel Taylor of counsel who appeared on behalf of Albert Asanaj. They all appeal against the decision of the determining officers to seek to recoup payment of litigators and advocates graduated fees under the Criminal Legal Aid (Remuneration) Regulations 2013, as amended.

2. The two defendants are brothers who, together with several others, faced trial in respect of, amongst other counts, a conspiracy to supply cocaine. They both pleaded guilty and submitted a basis of plea. Two other co-defendants also pleaded guilty and again submitted bases of plea. Consequently, a Newton hearing was scheduled for all four defendants to take place on 23 and 24 April 2025.

3. Prior to the Newton hearing taking place, the prosecution uploaded sentencing notes in respect of both brothers. In relation to Albert Asanaj, the prosecution submitted that the quantity of drugs was no longer in dispute in respect of the most serious conspiracy. It was, in the prosecution’s view, unlikely that a Newton hearing would be required in respect of the less serious conspiracy concerning intent to supply since any finding by the court would not make a material difference to sentencing.

4. In respect of Granit Asanaj, the basis of plea related to the extent of his involvement at the behest of his brother and the number of trips carried out during the time he was involved. Again, the prosecution suggested that a Newton hearing was not required because a factual finding as to the number of trips would not have a material impact on sentencing, albeit that this was ultimately a matter for the court.

5. Mr Taylor represented all of the appellants at the hearing of this appeal. At the hearing on 23 and 24 April 2025, he had represented Albert Asanaj. A Mr Lyons of counsel represented Granit Asanaj. During the morning hearing, Mr Taylor, who had been in court elsewhere initially, addressed the trial judge, HHJ Johnson, in the following terms: “Your Honour, I don’t know how much the court has been appraised of the position of Albert Asanaj. But I have, like others, uploaded a document into the sentencing section of DCS in order to assist Your Honour with where the parties are as far as he is concerned. Most relevant for the purposes of his case is the agreement between the prosecution and the defence now concerning quantity. There is a report that’s been uploaded which will in due course be exhibited during the Crown’s opening or calling of evidence to assist the presentation of this case and in effect what that says is that when combined that he falls to be sentenced for the overall quantity is in the region of 30 kilos. Judge Johnson: Yes. Mr Taylor: I may present some further submissions and observations on role, but our position is that that is not a matter for contested evidence. It is ultimately a matter for submissions on an agreed evidential framework between the parties.”

6. A little later, the Crown’s counsel says: “[Granit] Asanaj, the younger brother I’ll give way to my learned friend as to how he would characterise the position but as the court knows in advance from the written note overall, I don’t think it’s, well, I’m sure it’s not the positive submission of either party, that there is such a material difference that a fully fledged Newton hearing is required in respect of him. Judge Johnson: Yes. Mr Lyons: Your Honour, I’m grateful and that’s broadly speaking, correct.…it’s something for the court to determine and in our submission (inaudible) heard submissions and mitigation, where he does pull in terms of the culpability, but we don’t suggest that there is any value to be gained by the court hearing any evidence, the evidential material is not in dispute… … Judge Johnson: Thank you, Mr Lyons. So far as Mr Granit Asanaj is concerned, although the case was listed for a Newton hearing today, following further discussions between parties I am satisfied that there are no factual disputes that require litigating in court today and so no Newton hearing is required and Granit’s case can be adjourned for sentencing, submissions to be made in relation to categorisation and role in due course.”

7. The judge then turned to the position of Albert Asanaj and the following exchanges are relevant: “Mr Taylor: Your Honour, yes, I mean, I’ve set out our position. There is no factual dispute between the parties. Judge Johnson: Yes. Mr Taylor: I think because there’s – I think [Crown counsel] has referred to in his note, there are some text messages which particularly touch on Mr Asanaj’s case. I would ask that he remain here so that he can hear the case opened. Judge Johnson Yes. Mr Taylor: But when that part of the evidence has been dealt with and opened before Your Honour, he can depart. … Mr Taylor: This is not a case where any of the evidence is challenged, it is simply being presented in this way to assist Your Honour, and so on that basis and on the basis of the submissions that I’ve already made to Your Honour, I would ask that he remains for that particular part of the hearing and remains now for that. Judge Johnson: Yes. Mr Taylor: And then, when that’s finished, he can go down and be free to go. Judge Johnson: Yes. And in respect of Albert Asanaj again there’s no longer any need for a Newton hearing, there being no factual dispute that needs to be resolved by this court for the purposes of sentences, the matter having been listed for a Newton hearing today.”

8. From these extracts of the hearing in April, it can be seen that the hearing was listed as a Newton hearing and that, in relation to the brothers, no such hearing was considered necessary by the judge following preliminary submissions, both written and oral, from the advocates. Instead, as the judge put it, their cases could be adjourned for sentencing with submissions being made in relation to categorisation and role. Or, as Mr Taylor described it, sentencing would be a matter for submissions on an agreed evidential framework.

9. The importance of whether the hearing is described as a Newton hearing is in the significant difference between the graduated fees paid for such a hearing (effectively as a trial) or the fee paid for a guilty plea. The use of bases of plea to determine roles within conspiracies etc appears to have led to an increasing number of costs appeals as to whether or not a Newton hearing has taken place.

10. The case of R v Robert John Newton in 1982, established that a hearing to determine facts which made a material difference to the potential sentence to be handed down could be dealt with in one of three ways: i) the disputed facts could be put before the jury for their decision ii) the judge could hear evidence and then come to a conclusion; or iii) the judge could hear no live evidence, but instead listen to submissions from counsel and then come to a conclusion

11. In Newton, the Court of Appeal came to the conclusion that the trial judge had not dealt with the situation correctly. In particular, he had not followed the presumption that the defendant’s version of the facts was to be used for the purposes of sentencing unless the judge preferred the prosecution’s case, based on evidence put before him.

12. The effect of this in modern day hearings is that defendants will regularly put forward their version of events and to which the prosecution may not be able to agree, albeit that they do not have any formal evidence to lead against it. The result is a series of submissions by the prosecution and defence on which the judge makes a determination. For example, in the case of Granit Asanaj, the number of trips in which he was involved in the illegal enterprise was in dispute. Whilst the judge might make a determination as to the number of trips (or simply use the defendant’s basis rather than make a formal determination), that is not sufficient to render the hearing a Newton hearing because that determination is not enough to have any sufficiently material effect on the sentencing.

13. These appeals are a good example of a judge sentencing based upon the defendants’ versions of events without those submissions, coming close, in my view, to dispute material facts affecting the sentencing, so that it might equate to the preparation for a trial, even on limited issues. Mr Taylor, as a fallback position to the argument that the April hearing was a Newton hearing, also suggested that the hearing in July, when sentences were actually passed, could also be described as a Newton hearing. For the reasons I have just given, I do not accept that factual determinations which made a material difference to the sentencing occurred at the sentencing hearing. The events on that day were the submissions based on an agreed evidential framework to place the brothers in the appropriate places in the sentencing guidelines.

14. The argument run by the appellants in these appeals which bears the most weight, in my view, is that evidence was given at the hearing by a Police Officer and by one of the co-defendants. The opening of the case and the calling of these witnesses related to the co-defendants and their bases of plea. There is no doubt that the hearing, insofar as it related to the co-defendants, was a Newton hearing.

15. The exchanges between the judge and Mr Taylor regarding his client remaining to hear the case being opened, particularly regarding certain text messages, was relied on by Mr Taylor to demonstrate an involvement with the facts concerning the co-defendants. Mr Taylor said that he was also present and could have cross-examined either the officer or the co-defendant should he have wished to do so. If he had done so, even to the extent of a single question, then the Newton hearing description would apply to his client because it involved evidence being called. It could not be the case that a decision not to cross-examine the witnesses could result in a different conclusion. This was all the more so since the extent of the credit to which his client was entitled would be affected by any challenge to the witness’s evidence.

16. Mr Taylor relied on an earlier decision of mine in the case of R v Morfitt (55/16) where similar events occurred. In that case, counsel for Morfitt’s co-defendant cross-examined a prosecution witness, as well as calling the co-defendant (a Mr Ryan) to give evidence. The judge made certain factual findings and, having had chance to consider those findings, Morfitt and his legal team decided to preserve credit for the guilty plea by simply moving to a sentencing hearing rather than, for example, Morfitt being called to give evidence. The following paragraphs of my decision described my conclusions in that case: “18. The question in this appeal is whether a Newton hearing took place? It is clear that Morfitt appeared in court on 15 June for the purpose of such a hearing. He remained in court whilst Ryan’s Newton hearing took place and, having considered the evidence given and the judge’s findings, decided that they were sufficient to support Mr Anders’ submissions on the basis of plea put forward. From the passage set out above from the judge’s sentencing remarks, it appears that that decision was justified.

19. It seems to me that, where a defendant prepares for a Newton hearing; turns up to that hearing; hears evidence given on matters which concern the disputed facts and then relies upon that evidence to support the submissions made by his advocate, it cannot properly be said that a Newton hearing has not taken place. The judge has heard evidence on which he can make findings of fact where they are disputed between the Crown and the defence. The fact that the evidence was being led and cross-examined in respect of the co-defendant’s Newton hearing does not seem to me to make any difference to that analysis. As is said above, if that evidence had been taken from the trial, whether or not it was subsequently challenged at a Newton hearing, it would still be relevant evidence for the judge to consider.

20. It may be relatively rare for co-defendants to have consecutive Newton hearings and where one clearly takes place and the other less obviously so. But if the circumstances are similar to those in this case, it seems to me that an effective Newton hearing has taken place for both defendants if evidence relevant to the disputed facts has been given in the first hearing such as to render the need to call evidence unnecessary in the second hearing.”

17. In my view, the order in which the defendants are dealt with has a crucial bearing upon what I have described as consecutive Newton hearings. In Morfitt, the co-defendant’s evidence was called first and that provided the evidence relevant to Morfitt’s own case. In the appeals before me, the opposite situation occurs. The brothers are dealt with by the judge before any evidence is called (or even the case opened). The judge had clearly concluded that he had the information before him on which to sentence the brothers at a later date and that there was no factual issue to be decided. In those circumstances, it does not seem to me that the defendant remaining to hear the opening of the case (or even to listen to the cross examination) can be sufficient to transform the hearing as far as he is concerned into a Newton hearing.

18. I understand Mr Taylor’s point that he could have cross-examined the witnesses, but the prospect of doing so was, to use the description of Ms Weisman, who appeared for the Lord Chancellor on the appeal, no more than “hypothetical”. Not only did Mr Taylor not actually ask any questions of the witnesses, but as he pointed out, he would have risked his client’s credit for the guilty plea if he had done so and this, in my view, would have required taking some instructions and halting the evidence in order to do so. More fundamentally, Mr Taylor himself had already said to the judge that he was not challenging the evidence when indicating that he thought his client ought to remain to hear the opening of the case.

19. In these circumstances, it does not seem to me that the facts are similar to those of Morfitt, or at least can be easily distinguished on the effect that the co-defendant’s calling of evidence had on the sentencing of the defendants represented by the appellants.

20. Consequently, these appeals are all unsuccessful.