R v Jamie Powell

Costs Judge Rowley:

1. This is an appeal by Brysons solicitors against the sum allowed by the determining officer for the litigators graduated fee based on the Criminal Legal Aid (Remuneration) Regulations 2013, as amended.

2. The solicitors were instructed on behalf of Jamie Powell in respect of a four count indictment. The charges involved the possession of heroin and crack cocaine. Powell pleaded guilty to simple possession of those drugs. He pleaded not guilty to possessing them with intent to supply. However, on the day of the trial, Powell pleaded guilty to the more serious offences and submitted a basis of plea that the reason he supplied the drugs was in order to fund his own habit.

3. The solicitors say that the hearing to determine the sentence amounted to a “Newton hearing” rather than simply a sentencing hearing and as such the graduated fee should be calculated as a trial fee rather than a cracked trial fee in accordance with the regulations. Furthermore, there is a dispute as to the amount of pages of prosecution evidence (“PPE”) which should be used for the calculation of the graduated fee. These two separate aspects make up the appeal in this case.

4. Dealing firstly with the Newton hearing, the hearing on 24 January 2023 was not listed as such but, as has been decided in other cases, that is not determinative. It is a question of what occurred on the day. In order for a Newton hearing to be required, the sentencing judge must need to determine a factual issue or issues in order to deliver an appropriate sentence. It is not sufficient for there to be differences of view by the advocates, for example, as to where the defendant falls within the sentencing guidelines, if there are no disputed facts.

5. In order to determine those facts, the case of Newton (R v Robert John Newton (1982) 4 Cr. App. R. (S.) 388) explained that the decision on the disputed facts could be dealt with in a number of ways. Evidence could be given either to the jury or before the judge at the hearing. Or submissions could be made by the advocates and the judge then reach a conclusion without any evidence actually being given. Appeals in respect of Newton hearings often involve the last of these options because there is a dispute between the appellant and the Legal Aid Agency (“LAA”) as to whether a particular hearing should be categorised as a Newton hearing or simply as a sentencing hearing.

6. In my judgment, if there is no evidence being given at the hearing, there is a relatively high bar for the appellant to establish that the hearing was indeed a Newton hearing. The use of sentencing guidelines leads to many arguments about the level of seriousness of the defendant’s actions. But they do not amount to a factual dispute.

7. It is also the case that the prosecution often does not seem to accept the basis of plea and yet, at the hearing, the judge takes the view that the basis of plea is to be accepted. That is the situation here. The level of sentence, i.e. a suspended sentence, fitted the defendant’s description of supplying drugs to fund his own habit rather than the prosecution’s view of the severity of the offences. Regularly, such a decision by the judges is then described as the determination of a substantial issue of fact. But that is merely a reflection of the description in Newton by the judge that: “…it is incumbent upon me, as one would expect in this country, to take the more lenient view, to accept the accused’s version so far as possible and to pass sentence accordingly.”

8. Mr Brown, who appeared on behalf of his firm at the appeal hearing, suggested the difference between the parties was as to whether or not Powell had been supplying drugs essentially to assist his own use rather than for profit. He said that the prosecutor did not know why a Newton hearing was required because the prosecution could not say whether the drugs were being supplied for Powell’s own use or for profit. At that point, the judge decided that he did not need to go any further with the hearing.

9. In its written submissions, the LAA quote emails from the defence counsel to the solicitors. Those emails record that the judge asked why the Crown had rejected the basis of plea and that “the judge considered the basis of plea to be mitigation rather than a true basis.” Similarly, the judge accepted that Powell fell into the lesser category “after it was clarified at the outset that the basis did not need a separate Newton hearing.”

10. Mr Brown did not accept that those comments prevented the substance of the hearing being categorised as a Newton hearing. They affected the categorisation of the offences so that Powell played a lesser role. During the course of the hearing the prosecution decided not to oppose that role, unlike their previous stance in response to the basis of plea.

11. It seems to me that this is a clear case of the hearing being a sentencing hearing rather than a Newton hearing As such, the determining officer’s decision to use a cracked trial fee rather than a trial fee for calculating the overall graduated fee was correct. I do not consider the dispute between the parties had any substance when it came to sentencing Powell. As with other costs judge decisions, placement on the scale of offending by way of submission is not sufficient for the case to amount to a Newton hearing. If there is no evidence actually led at the hearing, it seems to me that the appellant has to demonstrate the specific factual issue which prevented the judge from sentencing the defendant until that issue had been determined. That is not the case here.

12. The second issue in this appeal relates to PPE. At the outset of the appeal, the solicitors claimed 9,890 pages for PPE and the determining officer had allowed 1,199 pages. However the central legal team at the LAA have looked at the claim for PPE in the light of the appeal and have narrowed the issues with the solicitors. A further 5,494 pages of PPE have been conceded bringing the total to 6,693 pages. The only issues remaining in respect of the electronic PPE concern the location data and the images on the telephone download.

13. At the hearing, Mr Brown did not pursue a claim regarding the location data and therefore it is simply a matter of whether some or all of the images should be allowed. The determining officer did not consider it appropriate to allow any of the images to be claimed at all.

14. There is no need for the solicitors, for the purposes of this appeal, to demonstrate the importance of the electronic documents generally or that they have been served. My only task is to consider whether some or all of the 3,462 pages of the telephone download on which images appear ought to be allowed by way of PPE rather than by way of time claimed for special preparation.

15. Mr Brown described this case as being one where use of the phone was in question. Powell had allowed others to use his telephone and moreover he denied dealing in drugs when the disclosure was being considered. The images on the phone included pictures of Powell, bundles of cash and people smoking drugs. In Mr Brown’s submission, the images were relevant to the use and ownership of the phone and that the determining officer would usually allow some of the images in such a case. Mr Brown was not expecting all of the images to be allowed, but a percentage in line with the oft cited case of R v Sereika ought to be allowed.

16. The telephone download report was included in the papers before the court on this appeal and I have therefore had the opportunity to look at the section containing the images. Whilst I accept Mr Brown’s argument that the images were potentially relevant to the issues in the case, my review of the images suggested very clearly that there were only a modest number that were in fact likely to be relevant. It is important that determining officers use the entire range of percentages when following the Sereika approach and not simply allowing the 5% allowed in that case. With that comment in mind, I nevertheless think that no more than 1 in 20 pictures overall were potentially relevant and therefore I allow a further 173 pages representing 5% of the total image pages on the download.

17. The solicitors have been successful on their appeal and are entitled to the costs of pursuing the appeal and the court fee. The solicitors have not been entirely successful since the Newton hearing argument was unsuccessful, but the PPE appeal has increased the PPE from 1,199 to 6,866. I have allow the solicitors a proportion of their claimed costs of the appeal to reflect the overall result.