The Right to a Newton Hearing

Date01 February 2010
AuthorAlisdair A. Gillespie
Published date01 February 2010
DOI10.1350/jcla.2010.74.1.610
Subject MatterDivisional Court
Divisional Court
The Right to a Newton Hearing
Goldsmith v DPP [2009] EWHC 3010 (Admin)
Keywords Drink/driving; Sentencing; Newton hearing; Sentencing
guidelines
The claimant was charged with driving with excess alcohol contrary to
s. 5(1)(a) of the Road Traff‌ic Act 1988. He had been in a pub where he
had consumed alcohol. He left and drove his car, but it crashed in a ditch.
He then contacted his friends who collected him and returned to the pub
where he consumed some more alcohol.
The police discovered his car and eventually traced the offender to the
pub and breathalysed him. The lowest reading recorded was 71 micro-
grams per 100 millilitres of breath (the legal limit being 35) but, upon
hearing his story, the police talked to the pub landlord and consulted an
expert who ‘back calculated’ his reading and arrived at the conclusion
that he had 46 micrograms in his breath at the time he was driving. He
was then reported to the CPS for consideration to be prosecuted, but the
CPS decided to charge him in respect of the 71 micrograms recorded by
the breathalyser. The claimant had, by this time, consulted his own
expert who concluded that he had not more than 57 micrograms in his
breath.
At court the defendant pleaded guilty to the charge, but asked for a
Newton hearing (R vNewton (1982) 77 Cr App R 13) to decide the level
of alcohol. The prosecution objected to this and stated that s. 15 of the
Road Traff‌ic Act 1988 provided that the claimant had to be taken to have
such alcohol as was certif‌ied and that accordingly a Newton hearing was
inappropriate. The deputy district judge (magistrates’ court) agreed and
held that she could not hold a hearing. The claimant appealed by way of
case stated arguing the deputy district judge was wrong.
H
ELD
,
ALLOWING THE APPEAL AND REMITTING THE CASE BACK TO THE
MAGISTRATES
COURT FOR A
N
EWTON HEARING
, s. 15 of the Road Traff‌ic
Act 1988 applied only to trials and not to hearings after a plea of guilty.
A defendant was entitled to challenge the prosecution basis upon which
he was to be sentenced.
C
OMMENTARY
As is well known, following the case of R v Newton above, the court (de
facto the prosecution) has three options if a defendant wishes to plead
guilty to the offence, but disputes the factual basis of the prosecution
case:
1. Accept the defendant’s basis for plea and sentence accordingly.
2. Decide that the defendant is actually stating that he is not guilty of
the offence and hold a trial to ascertain his guilt and factual basis
for any conviction.
7The Journal of Criminal Law (2010) 74 JCL 7–9
doi:10.1350/jcla.2010.74.1.610

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