R v Underwood (Kevin John) and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE JUDGE |
| Judgment Date | 30 July 2004 |
| Neutral Citation | [2004] EWCA Crim 2256 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 200306513//A5, 200400568/A0, 200402569/A5, 200400575/A7 |
| Date | 30 July 2004 |
[2004] EWCA Crim 2256
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Lord Justice Judge
(Deputy Chief Justice of England and Wales)
Mr Justice Douglas Brown
Mr Justice Bean
No: 200306513//A5, 200400568/A0, 200402569/A5, 200400575/A7
MR M DUFFY appeared on behalf of Underwood
MR J ELLIOTT appeared on behalf of the Crown in the case of Underwood
MR D BARLOW appeared on behalf of Arobieke
MR G COOK appeared on behalf of Khan
MR D JACKSON appeared on behalf of the Crown in the case of Khan
MR D TAYLOR appeared on behalf of Connors
sJUDGMENT
In these appeals, which we heard and decided earlier this week, we are concerned with what can compendiously be described as Newton hearings. Although the principle are clear, they are not always fully understood or applied. These appeals have therefore been listed together to enable this Court to repeat and emphasise general guidance about the procedure to be adopted where the defendant pleads guilty on a factual basis different to that which appears from the Crown's case, or, indeed, a study of the papers. In short, we are concerned with the process which will achieve the sentence appropriate to reflect the justice of the case where there is plea of guilty, but some important fact or facts relating to the offence which the defendant is admitting, of potential significance to the sentencing decision, are in dispute.
The essential principle is that the sentencing judge must do justice. So far as possible the offender should be sentenced on the basis which accurately reflects the facts of the individual case. In R v Newton (1983) 77 Cr App R 13 itself, Newton was charged with and pleaded guilty to very serious sexual offences involving his wife. As the law then stood, her consent provided no defence. It hardly needs saying that for sentencing purposes the difference between forced and consensual sexual activity was huge. It was therefore a classic example of an imperative need to establish the facts. To proceed to sentence without doing so, would have been productive of injustice. Lord Lane CJ identified one method of approach where there was a sharp divergence between the differing accounts of the offence:
"the second method which could be adopted by the judge in these circumstances is himself to hear the evidence on one side and another, and come to his own conclusion, acting so to speak as his own jury on the issue which is the root of the problem."
This is the Newton hearing. Inevitably, the relevant procedures have developed through subsequent decisions. We do not propose to cite any of them. They are fully summarised in Blackstone, Criminal Practice, 2004 edition at D18. 2-D18.13, Archbold, Criminal Pleading Evidence and Practice, 2004 edition at 5-18 to 5-222, and Morrish and McLain, Crown Court Index 2004 under the chapter heading "Newton Hearings". Our judgment is confined to well established principles, which, unfortunately, are not consistently being applied.
The starting point has to be the defendant's instructions. His advocate will appreciate whether any significant facts about the prosecution evidence are disputed and the factual basis on which the defendant intends to plead guilty. If the resolution of the facts in dispute may matter to the sentencing decision, the responsibility for taking any initiative and alerting the prosecutor to the areas of dispute rest with the defence. The Crown should not be taken by surprise, and if it is suddenly faced with a proposed basis of plea of guilty where important facts are disputed, it should, if necessary, take time for proper reflection and consultation to consider its position and the interests of justice. In any event, whatever view may be formed by the Crown on any proposed basis of plea, it is deemed to be conditional on the judge's acceptance of it.
The Crown may accept and agree the defendant's account of the disputed facts. If so, the agreement should be reduced into writing and signed by both advocates. It should then be made available to the judge before the start of the Crown's opening, and, if possible, before he is invited to approve the acceptance of any plea or pleas. If, however, pleas have already been accepted and approved, then it should be available before the sentencing hearing begins. If the agreed basis of plea is not signed by the advocates for both sides, the judge is entitled to ignore it; similarly, if the document is not legible. The Crown may reject the defendant's version. If so, the areas of dispute should be identified in writing and the document should focus the court's attention on the precise fact or facts which are in dispute.
The third, and most difficult, situation arises when the Crown may lack the evidence positively to dispute the defendant's account. In many cases an issue raised by the defence is outside the knowledge of the prosecution. The prosecution's position may well be that they had no evidence to contradict the defence assertions. That does not mean that the truth of matters outside their own knowledge should be agreed. In these circumstances, particularly if the facts relied on by defendant arise from his personal knowledge and depend on his own account of the facts, the Crown should not normally agreed the defendant's account unless it is supported by other material. There is, therefore, an important distinction between assertions about the facts which the Crown is prepared to agree, and its possible agreement to facts about which, in truth, the prosecution is ignorant. Neither the prosecution nor the judge is bound to agree facts merely because, in the word currently in vogue, the prosecution cannot "gainsay" the defendant's account. Again, the court should be notified at the outset in writing of the points in issue and the Crown's responses. We need not address those cases where the Crown occupies a position which straddles two, or even all three, of these alternatives.
After submissions from the advocates the judge should decide how to proceed. If not already decided, he will address the question whether he should approve the Crown's acceptance of pleas. Then he will address the proposed basis of plea. We emphasise that whether or not the basis of plea is "agreed", the judge is not bound by any such agreement and is entitled of his own motion to insist that any evidence relevant to the facts in dispute should be called before him. No doubt, before doing so, he will examine any agreement reached by the advocates, paying appropriate regard to it, and any reasons which the Crown, in particular, may advance to justify him proceeding immediately to sentence. At the risk of stating the obvious, the judge is responsible for the sentencing decision and he may therefore order a Newton hearing and to ascertain the truth about disputed facts.
The prosecuting advocate should assist him by calling any appropriate evidence and testing the evidence advanced by the defence. The defence advocate should similarly call any relevant evidence and, in particular, where the issue arises from facts which are within the exclusive knowledge of the defendant and the defendant is willing to give evidence in support of his case, be prepared to call him. If he is not, and subject to any explanation which may be proffered, the judge may draw such inferences he thinks fit from that fact. An adjournment for these purposes is often unnecessary. If the plea is tendered late when the case is due to be tried the relevant witnesses for the Crown are likely to be available. The Newton hearing should proceed immediately. In every case, or virtually so, the defendant will be present. It may be sufficient for the judge's purpose to hear the defendant. If so, again, unless it is impracticable for some exceptional reason, the hearing should proceed immediately.
The judge must then make up his mind about the facts in dispute. He may, of course, reject evidence called by the prosecution. It is sometimes overlooked that he may equally reject assertions advanced by the defendant, or his witnesses, even if the Crown does not offer positive contradictory evidence.
The judge must, of course, direct himself in accordance with ordinary principles, such as, for example, the burden and standard of proof. In short, his self-directions should reflect the relevant directions he would have given to the jury. Having reached his conclusions, he should explain them in a judgment.
Again, by way of reminder, we must explain some of the limitations on the Newton hearing procedure.
(a) There will be occasions when the Newton hearing will be inappropriate. Some issues require a verdict from the jury. To take an obvious example, a dispute whether the necessary intent under section 18 of the Offences against the Person Act 1861 has been proved should be decided by the jury. Where the factual issue is not encapsulated in a distinct count in the indictment when it should be, then, again, the indictment should be amended and the issue resolved by the jury. We have in mind, again for example, cases where there is a dispute whether the defendant was carrying a firearm to commit a robbery. In essence, if the defendant is denying that a specific criminal offence has been committed, the tribunal for deciding whether the offence has been proved is the jury.
(b) At the end of the Newton hearing the judge cannot make findings of fact and sentence on a basis which is inconsistent with the pleas to counts which have already been accepted by the Crown and approved by the court. Particular...
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