R v Chow [2025] EWHC 3019 (SCCO)

[2025] EWHC 3019 (SCCO)Case No T20247013SCCO Reference: SC-2025-CRI-000057
IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE
Thomas More Building
Venue Royal Courts of JusticeDate 17 November 2025
London, WC2A 2LL
Before
COSTS JUDGE LEONARDRvCHOWJudgment on Appeal under Regulation 29 of the Criminal Legal Aid (Remuneration) Regulations 2013Appellant: Stonehall SolicitorsThis Appeal has been dismissed for the reasons set out below.COSTS JUDGE LEONARD
Between
ChowDefendantRCrown
[1]Following the transfer of legally aided representation from other solicitors on 26 July 2024, the Appellant acted for Kok Keong Chow (“the Defendant”) before the Crown Court at Snaresbrook. The fee due to the Appellant for that work is governed by the Litigators’ Graduated Fee provisions of Schedule 2 to The Criminal Legal Aid (Remuneration) Regulations 2013.[2]The question, on this appeal from the Legal Aid Agency’s Determining Officer, is whether the Appellant is due (as the Appellant says) the fee due to a litigator to whom representation has been transferred before a retrial, or (as the Determining Officer found) the fee due where, following the transfer, the case “cracked” and no retrial was necessary.[3]Some of the written submissions made by the Appellant appeared to claim the fee due for a transfer before trial (as opposed to retrial) but I am unaware of any basis for such a claim. Mr Ahmed, counsel representing the Appellant on this appeal (who had been counsel for the Defendant in the Crown Court) confirmed that the fee sought on this appeal is that appropriate to a transfer before retrial.

The 2013 Regulations and Newton Hearings

[4]Transfers and retrials are addressed at paragraph 13 of Schedule 2. Paragraph 13(2) provides: “Where—(a) a case is transferred to a new litigator; or(b) a retrial is ordered and a new litigator acts for the assisted person at the retrial, the fee payable to the original litigator and the new litigator is a percentage of the total fee, calculated in accordance with the table following this paragraph, as appropriate to the circumstances and timing…” (a) a case is transferred to a new litigator; or (b) a retrial is ordered and a new litigator acts for the assisted person at the retrial,[5]The table referred to provides for the new litigator to receive 50% of a trial fee or 50% of a cracked trial fee, as the circumstances require.[6]A cracked trial, as defined in the 2013 Regulations, includes the common situation where a defendant changes his or her plea to guilty on some counts and the remainder are not pursued, so that a trial becomes unnecessary and the case proceeds to sentencing. That is what happened in this case, following the transfer of representation to the Appellant. Hence the Determining Officer’s decision.[7]The 2013 Regulations also provide however that, in a case that might otherwise be a cracked trial, if a “Newton Hearing” (a fact-finding hearing for sentencing purposes) took place, then a trial fee is due.[8]In this case, the Appellant says that there was such a hearing, between 10 and 11 December 2024, so that the fee payable is the fee for a transfer before retrial. The Determining officer did not agree.[9]Schedule 2 at paragraph 1 defines a Newton Hearing:
“Newton Hearing” means a hearing at which evidence is heard for the purpose of determining the sentence of a convicted person in accordance with the principles of R v Newton (1982) 77 Cr App R 13…”
[10]In R v Robert John Newton (1983) 77 Cr. App. R. 13, the Court of Appeal identified the three forms of what is now known as a “Newton Hearing”. The disputed facts may be put before the jury for a decision; the judge may hear evidence and then come to a conclusion; or the judge may hear no live evidence but instead listen to submissions from counsel and then come to a conclusion.[11]For the purposes of this appeal it was accepted by both parties that, given the express reference in the definition at Schedule 2 paragraph 1 to R v Newton, live evidence need not be heard for a hearing to qualify as a Newton hearing for the purposes of the 2013 Regulations. Costs judges have consistently found that such is the case.[12]The essential point remains however that there must be a fact-finding exercise for the judge to conduct.

The Background

[13]The Defendant faced trial alongside three others on a 10-count indictment featuring concerning the supply of controlled drugs (cannabis) and related conduct. The Defendant faced six of the counts on the indictment.[14]On 22 November 2022 the Defendant pleaded guilty to one count (possession of a controlled drug). On 23 October 2023 trial on the other counts commenced in the Crown Court at Woolwich. The trial continued until 2 November 2023, when a volume of further disclosure was provided at short notice. The disclosed documents needed to be translated. The trial judge discharged the jury.[15]On 28 March 2024 the Defendant pleaded guilty to two further counts: conspiracy to contravene the prohibition of controlled drugs and possession of criminal property. The remaining counts against him were left to lie on file. The case was, on 29March 2024, transferred to the Crown Court at Snaresbrook.[16]On 31 July 2024 the Defendant put forward a basis of plea. His case was that he played a lesser role. He lived in a room paid for by his boss, “Boss Xue”, upon whom as an illegal immigrant he was financially dependent and without whom he would be on the streets. At his boss’s instructions, he had received at the premises where he lived a number of parcels. He had only recently become aware that those parcels contained cannabis. Nor did he have any knowledge of the amounts involved, or other aspects of the conspiracy.[17]The Crown accepted that the Defendant was at the lower end of the conspiracy, but not (as stated at paragraphs 8 and 9 of his basis of plea) that he had only recently become aware of the contents of the parcels he received, nor that he was unaware of the amount of cannabis involved and the scale of the operation.[18]A Newton hearing was listed for 10 and 11 December 2024. Written submissions prepared by Mr Ahmed, counsel for the Defendant, for the hearing indicated that the defence would call the Defendant to give evidence in support of his basis of plea.[19]The Crown was represented by two counsel, Mr Drinnan and Ms Mertens. On 10 December Ms Mertens sent this email to Mr Ahmed:
“I am awaiting an answer from the reviewing lawyer but I cannot agree that (sic) paragraphs 8 and 9. In addition, where he asserts that he was acting under pressure from Xue and/or in return for his rent being paid, I consider the court would need to hear from him if you are inviting the Court to place him squarely in Lesser Role as these things are outside the Crown's knowledge. I am of the view that there are factors of Significant Role and Lesser Role. I can confirm that when he was arrested the OIC takes the view that he was living in squalor if that helps.”

Transcripts

[20]I have transcripts of the proceedings on 10 and 11 December 2024 before HHJ Dean, the Honorary Recorder of Redbridge, which includes these exchanges between HHJ Dean and counsel :
“MS MERTEN: There is not an agreed basis at the moment, Your Honour. I think the difference between them, and I need to speak to Mr Ahmed further about it, is that I say that it is absolutely significant in the sense that you play an operational role… JUDGE DEAN: Yes, and he is simply saying in relation to conspiracy he received, he [inaudible]. MS MERTEN: In relation to the pecking order, it is definitely Mr Xue- JUDGE DEAN: Yes. MS MERTEN: Then, in fact, it is Mr Inghowe and then, in fact, it’s Mr Chow. What I’m saying is, without giving evidence about pressure exerted upon him by Mr Xue, I can’t say on behalf of the Crown that is agreed. I also don’t accept on behalf of the Crown that he didn’t know that the packages contained cannabis, but I am saying that he falls, he’s definitely acting under direction of Mr Xue and he falls below Mr Inghowe… JUDGE DEAN: All right, okay. So, you are saying the bottom end of significant. MS MERTEN: Yes, he’s either bottom end of significant or top end of less. JUDGE DEAN: So, bottom end of significant is four and a half- MS MERTEN: Yes… JUDGE DEAN: And if it was a lesser role- MS MERTEN: It would be two years and 18 months to three years. MR DRINNAN: Yes. JUDGE DEAN: Two years, 18 months to three. All right. MS MERTEN: Can I just- JUDGE DEAN: You are happy to put it towards the three, are you not? MS MERTEN: I am saying they’re both performing vital roles in collecting packages from different addresses- JUDGE DEAN: Yes. MS MERTEN: So, actually it’s probably [inaudible] significant and definitely acting under the direction of Mr Xue. So, I don’t know if we’re too far apart in that but that’s- JUDGE DEAN: Well, the bottom half of significant is two and a half which is 30 months, is it not? MS MERTEN: Yes. JUDGE DEAN: Right, so you are [up to?] 30 months, are you not? MS MERTEN: Yes. JUDGE DEAN: Yes, okay. Right, do we need to have a Newton hearing? MR AHMED: My Lady, I think you can make the assessment from what is in my note which will be helpful. In terms of the evidence that My Lady will need to hear, you will know what it is but at the end of the day I will do what I’m told and [inaudible]. So, My Lady, you can make an assessment on essentially from what I put in my note- JUDGE DEAN: Well, [inaudible] cannabis but, I mean, I am not terribly interested in- MR AHMED: No. JUDGE DEAN: In that particular, he accepts that he played an important role at the bottom end- MR AHMED: Yes, and so the points that are between us are ones that I think My Lady will not trouble you too much- JUDGE DEAN: Right- MR AHMED: But I do submit- JUDGE DEAN: Can you do any better than 30 months for full credit? MR AHMED: I think that’s probably- JUDGE DEAN: Right- MR AHMED: At a reasonable- JUDGE DEAN: Fine, okay. Right, okay, so let us move on then. So, that deals with KC…”
MS MERTEN: In relation to the pecking order, it is definitely Mr Xue- MS MERTEN: Yes… MS MERTEN: Can I just- MR AHMED: But I do submit- MR AHMED: I think that’s probably-

MR AHMED: At a reasonable-

[21]HHJ Dean’s sentencing remarks in relation to the Defendant, on 11 December, included these:
“You pleaded guilty in circumstances where you are entitled to 20% credit, for the offence of conspiracy to import cannabis and also to that credit for possession of criminal property. And you pleaded guilty at the first opportunity in the Crown Court to possession of MDMA. You pleaded on a basis which was not accepted by the Crown, but which does not require a Newton hearing because everyone agrees that you were very much at the bottom in terms of the order of offenders, and you received a number of packages of cannabis which were then passed on. And everyone accepts that you were, to a degree, acting under instruction. I have to sentence you, of course, in accordance with the Sentencing Guidelines… Both prosecution and the defence agree that your offending is either towards the bottom end of significant or towards the topper end of lesser, in terms of culpability. The appropriate sentence for you, after a trial, would, therefore, be 30 months’ imprisonment. With credit of 20%, the sentence on count one for you is two years, on count six no separate penalty and on count 10 two months concurrent. So, the total sentence for you is two years.”

Submissions

[22]The Appellant complains that the Determining Officer’s decision is inconsistent with the fact that counsel received, for the proceedings 10 and 11 December 2024, the fee appropriate to a Newton hearing.[23]The matter was listed as a Newton Hearing on 10 and 11 December 2024, and prepared for as such. The Defendant was ready and willing to give evidence. Comprehensive written submissions were served, filed and relied on by the Crown and the defence. Defence counsel made oral submissions in line with his written submissions concerning a factual dispute between the defendant and prosecution, namely that he was being directed by others to perform a very limited role, placing him squarely in a lesser role. The Defendant, who in advancing his basis of plea risked losing his sentencing credit, was ultimately sentenced to two years in custody, which is consistent with the defence submissions.[24]The Appellant also relies upon the decision of costs judge James in R v Adonis Wright (SCCO 285/18, 24 June 2019) in support of the proposition that despite the fact that HHJ Dean said that there had been no need for a Newton hearing, on a correct interpretation of the facts and the law, there had been such a hearing, and the Defendant should be remunerated accordingly.[25]At the hearing of the appeal, Mr Ahmed submitted that, although she did not make express reference to it, HHJ Dean must, before sentencing the Defendant, have made a decision on the disputed facts on the basis of the parties’ written submissions.[26]Although I am grateful to both parties for their submissions, I do not need to refer in any detail to the submissions of Ms Weisman for the Respondent.

Conclusions

[27]I am unable to attach any significance to the fact that counsel for the Defendant, in relation to the proceedings 10 and 11 December 2024, received the graduated fee appropriate to a Newton hearing. The decision to do so was presumably made by a different Determining Officer to the one who determined the fee payable to the Appellant, but in any event I have to exercise my own judgment.[28]I have been referred to a number of costs judge decisions upon whether Newton hearings have taken place. Like all such decisions (including this one) they are fact-specific and do not represent any sort of binding authority.[29]I have no difficulty in accepting the proposition that it may be right to for a costs judge, for the purposes of assessing the payment due to a litigator under Schedule 2, to conclude that a Newton hearing has taken place, even where the judge presiding over the relevant hearing had indicated that such was not the case. One may not know, for example, why the judge came to that conclusion and what criteria the judge applied.[30]The observations of the presiding judge are, nonetheless, of importance, and due weight must be attached to them. Apart from anything else, one would expect the presiding judge to be just as aware of the definition of a Newton hearing as any costs judge.[31]I am unable to accept the Appellant’s submissions that there was a significant difference between the Crown and the defence, for sentencing purposes, as to the significance of the role played by the Defendant. The sentencing remarks of HHJ Dean make it clear that there was no such difference.[32]Nor am I able to accept that HHJ Dean made a determination of fact, for sentencing purposes, based upon the parties’ written submissions. The only parts of the basis of plea which were not accepted by the Crown were the Claimant’s denial of any knowledge of the scale of the conspiracy in which he was involved, and his assertion that he had only known for a short period the packages with which he was dealing contained cannabis. Nor, it would seem, did the Crown entirely accept the Defendant’s case as to the degree of pressure exerted upon him by Xue.[33]As HHJ Dean made entirely clear, however, she did not have to make any finding upon those issues, because for sentencing purposes no such finding was required. What mattered was that the Defendant’s role in the conspiracy could properly be described as at the top end of “lesser” or the bottom end of “significant”, and the Crown and the defence were in agreement on that. On that basis HHJ Dean found that the appropriate sentence was 30 months, reduced by a 20% credit to 24 months.[34]As I have said, in order for a Newton hearing to take place, it must be necessary for the presiding judge to make a finding of fact. Because it was never necessary for HHJ Dean to make a finding of fact, the unavoidable conclusion is that there was no Newton hearing in this case.[35]For those reasons this appeal fails, and must be dismissed.