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	England and Wales High Court (Senior Courts Costs Office) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Senior Courts Costs Office) Decisions >> Ali, R. v [2025] EWHC 420 (SCCO) (26 February 2025) URL: https://www.bailii.org/ew/cases/EWHC/Costs/2025/420.html Cite as: [2025] EWHC 420 (SCCO)

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IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE

Judgment on Appeal under Regulation 29 of the
Criminal Legal Aid (Remuneration) Regulations 2013

		Thomas More Building Royal Courts of Justice London, WC2A 2LL
		26 February 2025

The appeal has been dismissed for the reasons set out below.

Costs Judge Rowley:

1. This is an appeal by Eldwick Law solicitors against the determining officer's decision to remunerate it by way of a cracked trial fee under the Litigators Graduated Fee Scheme as set out in the Criminal Legal Aid (Remuneration) Regulations 2013, as amended.
2. The solicitors represented Naqash Ali in relation to 2 counts of supplying Class A drugs, one count of possession of Class B drugs and one count of conspiracy to acquire firearms. Although Naqash Ali originally pleaded not guilty to these offences, he changed his pleas to guilty on 14 February 2024 and the case was ultimately listed for sentence on 11 April 2024.
3. Both prosecution and defence submitted sentencing notes prior to the sentencing hearing. The defence sentencing note describes how it was believed that there would be no factual dispute between the parties and that sentence would be passed following legal analysis of the agreed facts before the court. However, the defence had received and served an expert report regarding an analysis of the Encrochat messaging in the case which related to the drugs dealing elements of the indictment.
4. The note goes on to accept that there were two issues on which there may no longer be agreement between the parties and as such it might be necessary for the court to hear evidence from the expert in person to be tested by the prosecution. Those two issues concerned whether the activities of Naqash Ali were under the direction and control of a different person communicating via the Encrochat system and whether Naqash Ali was at the lower end of the hierarchy of control within the group.
5. It appears that the expert was available for cross-examination since he attended by CVP. In her sentencing remarks, the judge describes the point to which this evidence went was whether Naqash Ali occupied a leading role or merely a significant role for the purposes of the sentencing guidelines. At paragraph 17 of her remarks she says as follows:

"At the outset of the hearing, I made clear to all parties, having considered the sentencing documentation and background material, that I was not persuaded that Naqash Ali occupied a Leading role, but rather that I considered his role in count 2 to be Significant, Category one within the guidelines, and would be prepared to sentence on that basis without the need to hear expert evidence."

6. It is said that the transcript provided to the court of the events on 11 April 2024 is of the whole hearing. But it is clear that the comments in the preceding paragraph occurred before the transcript begins. On the third page of the transcript, Crown counsel referred to his initial submission that the defendant was in a leading role in respect of count 2 but that:

"Your Honour has expressed her view on what it is, [a] significant role. In that respect, therefore there is no issue between the Crown – the Crown accepts what your Honour says there is no issue between the parties in relation to count 2."

7. Again, prior to the transcript, the judge apparently indicated that she was not intending to pass sentence that afternoon. The judge says:

"…I want to make it clear where I'm thinking so that it is anything further you want to say, you have got an opportunity of saying it now, albeit of course, even though you will be appearing remotely, I anticipate on Monday morning… I clearly wouldn't cut you off on Monday. But the structure of the sentence that I am looking at, as I have indicated, is on count 2, significant role, category 1, which starting point will be aggravated because of the firearm conspiracy. Those two sentences [will be] concurrent. But obviously, there will be a consecutive sentence for count 3 and my start point there, as I say, my tension is between leading role and significant role in category 1 and category 3. So, I want to give you the ballparks. And I will obviously have a mind to totality."

8. There is then some dialogue regarding the totality of consecutive sentences before the judge concludes:

"So, I wanted to give you, as I say, the maximum opportunity to say anything further that you wish, but of course, I would hear from you on Monday in any event."

9. The sentencing hearing resumed on 15 April 2024 and the judge opens by saying "can I thank you, Mr Payne, for your further note that I received yesterday and thank you for uploading it, Mr Mandel?" (Mr Payne was the defendant's counsel and Mr Mandel the Crown counsel.) Following a few preliminary matters, the judge then proceeded to sentence the defendant.
10. Since the defendant originally pleaded not guilty and then changed his plea to one of guilty, a cracked trial fee would usually be appropriate. However, if the sentencing hearing required the judge to make factual findings in order to pass the appropriate sentence then it would be described as a "Newton" hearing and, under the Regulations, this would result in a trial fee rather than a cracked trial fee being payable. It is the solicitors contention that the hearing on the 11^th and 15^th of April was a Newton hearing rather than simply a sentencing hearing.
11. The case of R v Robert John Newton (1982) 4 Cr. App. R. (S.) 388 originally considered the issue of the need for factual findings in order to pass sentence. In that case, the court decided that disputed facts could be put before the jury for their decision. Alternatively, the judge could hear evidence and then come to a conclusion. In either of these circumstances, it ought to be reasonably straightforward to establish that a Newton hearing has taken place.
12. However, a third possibility discussed in Newton was where the judge did not hear any live evidence but instead listened to submissions from counsel and then came to a conclusion. The trial judge in Newton put it in these terms which were approved by the Court of Appeal:

"I propose to proceed to sentence Newton…on the well-known basis that the Crown is entitled to put its case forward on the evidence disclosed in the depositions, the defence is entitled to put forward its mitigation provided is not clearly at issue with the facts. I must then pass sentence. Where I find there is substantial conflict between the two versions, then 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."

13. It is this form of Newton hearing which tends to lead to appeals before costs judges. The difference between a court having to resolve a substantial conflict of fact before passing sentence and one where the court is determining where within the sentencing guidelines the particular defendant's crimes fit, can be a narrow one. Arguably, every decision by the judge as to, for example, the extent of culpability or the defendant's place in a hierarchy is a finding of fact. That is certainly the submission that is made in some appeals on this point.
14. But, in my view, it appears to be necessary for either everyone involved to consider the hearing to be a Newton hearing or for it to be clear as to what factual finding the judge has to make as a result of the submissions made in order for the judge to pass an appropriate sentence. If the hearing is listed as a Newton hearing and the judge and advocates treat it as such, then the determining officer and costs judge on appeal will no doubt conclude that a Newton hearing has taken place. But where, as here, no Newton hearing was listed, it seems to me to be a relatively high bar is required to establish that a sentencing hearing is in fact worthy of being described as a Newton hearing instead.
15. The defendant's sentencing note, with its inclusion of expert evidence and indicating the factual findings needing to be made, might have led to a Newton hearing. But it seems to me that the judge dealt with that possibility at the very outset of the hearing in stating that it was the defendant's categorisation of his role that was appropriate. Given the description of the approach approved by the Court of Appeal set out in paragraph 12 above, that is perhaps not surprising.
16. Mr Payne appeared on behalf of the solicitors at the hearing of this appeal. Whilst he accepted that there were many comments which could properly be described as mitigation in the transcript, he relied upon the discussions regarding the quantity of drugs involved as being a substantial conflict of evidence. He described it as being an odd case because the prosecution did not seek to set out any particular view on the scale of the drugs involved and simply went for a minimum level. In Mr Payne's submissions the judge came to her own view on the weight of the drugs and in the written submissions reference is made to the figure of 60 kg which is said to be a clear factual finding for the dealing over a three-year period. This resulted from what is described as being "a lengthy and complex analysis to establish weights and volumes involved in the drug dealing operation." The written submissions of Mr Payne also describe the judge as adjourning the passing of sentence and inviting further written submissions to be provided.
17. I am afraid that I consider Mr Payne's description of the events of this hearing to be rather overstated. I have already set out the judge's comments at the end of the first day regarding seeing the advocates via video on the following Monday and their being given an opportunity to say anything further whether at the first hearing or on the Monday. There is nothing, so far as I can see, which invited written submissions in the manner described by counsel's note for this hearing.
18. It also seems to me that the judge took the view that the minimum figure of 5 kg referred to by the prosecution was not untoward during the submissions and an indication to both sides was given as a result. At paragraph 31 of the sentencing remarks reference is made to a cursory reading of the Encrochat data which suggested that they did not refer to "the kind of quantities that were way outside of the guideline amount of 5 kg which might have supported a significant uplift to that starting point of 10 years for Significant Role Category 1 Harm."
19. The reference to the 60 kg figure is in the final paragraph of the sentencing note (paragraph 41) which contains the heading of "NB for completeness:" and then starts

"Were I to have been persuaded that I should sentence counts two and three concurrently… Over three years the quantity dealt and multiplied pro rata would be in the region of 60 kg…"

20. This paragraph is, at most, a crosscheck to the sentence already passed and it does not describe anything other than a broad assessment extrapolated from a rather shorter period of trading. In my view, it certainly does not come close to being a substantial dispute of fact which needed to be determined before an appropriate sentence could be passed.
21. Accordingly, I have come to the conclusion that the sentencing hearing was just that and did not amount to a Newton hearing for the purposes of the Graduated Fee Scheme under the 2013 Regulations. Consequently this appeal fails.