R v Nikola Baso

Senior Costs Judge Rowley:

1. This is the appeal of Thomas Wainwright of counsel against the decision of the determining officer to assess his graduated fee under the Advocates Graduated Fee Scheme as a guilty plea rather than a trial fee under the Criminal Legal Aid (Remuneration) Regulations 2013, as amended.

2. Counsel was instructed on behalf of Mr Nikola Baso who faced a one count indictment of being concerned in supplying a controlled drug of Class A to another. He pleaded guilty to that offence, as did one of the other defendants, and their sentencing hearing was delayed pending the trial of a third defendant who was, in fact, acquitted. There was therefore a delay in Mr Baso being sentenced.

3. Both Mr Baso and his co-defendant submitted a basis of plea in respect of the offences to which they pleaded guilty. Mr Baso’s basis of plea was that he had got into debt as a result of borrowing money to pay for an operation for his father. There was a lot of interest which accumulated and he was unable to pay it back. He was threatened that the creditor knew where Mr Baso’s family lived in Albania. In order to extinguish the debt, he agreed to carry out a task for the creditor who was a person he knew to be involved in crime. He was told that he would have to go and pick something up and take it to a location in Enfield and he realised that he was involved in something illegal. When one of the other defendants came out with a bag and put it in the boot of the car that Baso was driving, he realised that it involved illegal drugs. He had no idea of the weight of drugs involved and was not aware of what was taking place beyond his own involvement.

4. The prosecution’s response to that basis of plea was to say that the elements of coercion set out in it were not matters contained in the prosecution’s evidence and as such they did not accept it. Since the weight of drugs involved was 19 kg, the prosecution suggested that the defendant must, in fact, have been a trusted person within the organisation.

5. The sentencing hearing eventually took place on 7 October 2024. It was listed as being a sentence/Newton hearing and the judge’s note on the Digital Case System after the hearing included the following: “Bases of Plea not accepted by Crown. All parties agreed factual disputes could be determined on submissions and no need for live evidence. [Co-defendant] - culpability lower end sig with some lesser role factors; Baso – lesser role. Both – Harm at very top for Cat 1…”

6. Mr Wainwright’s note for taxation relies upon the DCS note and also a number of passages in the hearing and for which there is, helpfully, a transcript. At the start of the hearing, Mr Wainwright said: “My position, on behalf of Mr Baso, is that for a number of reasons we can’t proceed to a full Newton if one is required involving the calling of evidence today. One of those reasons is that without an interpreter, Mr Baso wouldn’t have been able to give evidence and be cross examined, but his English is good enough if we – the matter were to be resolved and to proceed to sentence, Your Honour having heard submissions.”

7. The judge replied: “I cannot see that this does require a Newton hearing because I do not think there are any really important disputed facts we need to determine or resolve… Turning back to Mr Baso, it seems to me there are stronger lesser role submissions to be made on his behalf and while I might be sceptical about some of the assertions he makes, it seems to me I do not necessarily need to hear evidence to determine them.”

8. These comments were made before the prosecution formally opened the hearing. During that opening, the prosecution’s counsel stated: “I think I had indicated my primary submission is Your Honour can determine this on the basis of submissions… Were the matter to go to a full-blown contested Newton hearing, we wanted to see what [the co-defendant had said at trial] and if it was anything helpful… … …much of what was put within the basis of plea is a matter of either personal mitigation or based on unsubstantiated accounts, some material now having been uploaded. But once again, it still is not evidence per se unless it were to be called.”

9. In addition to making submissions in mitigation, Mr Wainwright referred the judge to his sentencing note in respect of Mr Baso’s basis of plea. In the judge’s sentencing remarks, he set out the basis of plea of both Mr Baso and his co-defendant and then stated: “The parties agree that any differences can be addressed and have been addressed by submissions to me rather than requiring evidence, and I agree with that course. It is the principal issue here, it does not require the determination [of] disputed facts, but rather determination of role which is a matter for judicial valuation.”

10. During his sentencing remarks the judge described himself as being sceptical as to Mr Baso’s lack of knowledge that it was a drugs transaction. The judge also said that he had some doubt regarding the threats asserted by Mr Baso in respect of his family in Albania. The judge described the quantity of drugs as being “a very large amount” to entrust to someone and therefore there had been some degree of trust on the part of those who had used Mr Baso. The judge then went on to say that he did not need that to be mitigated because it did not affect his overall determination that Mr Baso’s role was a lesser one though perhaps not at the very bottom end of culpability.

11. It is inevitable that, in the everyday working of the Crown Court, the use of language with complete precision for subsequent assessment of the fees payable to legal representatives is not uppermost in the minds of either the judiciary or the advocates. Reference is made in the transcript to there being no need for a “full-blown” Newton hearing and which is the one that is recognised by all as involving evidence being called and the judge making a determination of fact based upon that evidence. In this case, that would have needed an interpreter to be present and, it would appear, the hearing having to go off to another date.

12. Consequently, neither the judge nor the advocates were keen for this to occur and questions of fact were to be determined by the judge on the basis of submissions made by the advocates upon the conclusions to be drawn from the agreed evidence. It is this sort of hearing which can be described as a Newton hearing but is, in form, often little different from a pure sentencing hearing where the defendant advocate is simply providing mitigation rather than attempting to persuade the court of facts which will affect the sentencing in a material way.

13. The number of cases referred to by Mr Wainwright, or at least made available in his bundle for this appeal, reflects the number of appeals where hearings are said to be Newton hearings by litigators or advocates and which are disputed by the Legal Aid Agency. The difference in financial terms between a Newton hearing being established (and therefore a trial fee paid) and a not guilty plea fee being paid can be considerable.

14. Recent decisions have concluded that the hearing does not have to be listed as a Newton hearing for it to be so in substance. Conversely, it must be possible for a case to be listed as a Newton hearing and yet in substance not amount to any such thing.

15. The judicial guidelines on sentencing require the judge to draw conclusions about the role of participants in order to determine where within the guidelines the appropriate level of sentence should be drawn. In a sentencing hearing, the advocates’ efforts are aimed solely in assisting the court to establish those criteria and therefore the sentence.

16. Where a basis of plea has been entered, then it may be that the court has to determine disputed facts in order to be able to consider the guidelines. Where those disputed facts have a material effect on the level of sentence, then it can be described as a Newton hearing. But it does not seem to me that every factor in the evaluation of the judge can be described as a factual decision which is sufficient to reach the threshold of a Newton hearing.

17. Looking at the comments of the judge at both the beginning of the hearing and in the sentencing remarks, it seems to me to be clear that he did not consider that there were any material facts he needed to find in order to consider the appropriate sentence. He was simply evaluating the various factors put forward by the advocates to determine the right level of sentence. As the case of R v Robert John Newton [1983] Crim LR 198 made clear, where there is a substantial dispute on the facts, then the judge is to take a “lenient” view of preferring the defendant’s version rather than the Crown’s in any event.

18. Consequently, in any dispute that might be described as a Newton hearing, the presumption is that the defendant’s version will be preferred. As a result, it seems to me the prosecution’s response is an important factor. Whereas here the prosecution says that most of the basis of plea is simply outside the evidence that it has and therefore cannot accept the basis of plea, it is in essence no more than putting the defendant to proof in the eyes of the judge. That does not seem to be sufficient to categorise something as a Newton hearing, at least where such a hearing simply involves submissions.

19. The only positive argument put forward by the Crown was that the level of drugs involved meant that the person chosen to transport them must have been a “trusted” person and this would suggest some seniority within the organisation. But, as I have set out, the judge specifically said he had doubts about the level of trust and that it did not have any material effect on the sentencing in any event. In the absence of materiality I do not consider that this appeal can succeed in establishing that the hearing was in substance a Newton hearing such that a trial fee ought to be paid rather than a guilty plea as has been allowed by the determining officer.

20. For these reasons this appeal fails.