R v Lodge

1. This appeal concerns whether, under the Graduated Fee provisions of Schedule 2 to The Criminal Legal Aid (Remuneration) Regulations 2013, the Appellant is due a guilty plea fee or a trial fee. The issue turns upon whether, for the purposes of the 2013 Regulations, a “Newton Hearing” (a fact-finding hearing for sentencing purposes, which is treated as a trial under the Regulations) took place.

2. Schedule 2 at paragraph 1 provides the following definition: “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 …” Background

3. The Appellant represented Perry Lodge (“the Defendant”) before the Crown Court at Isleworth. The Defendant, alongside co-defendants Paul Greenslade and Jason Martin, was charged on indictment with one count of conspiracy to supply cocaine (count 1) and one count of conspiracy to acquire criminal property (count 2).

4. On 18 April 2023 the parties attended court for a Pre-Trial Preparation Hearing (“PTPH”). The Defendant was arraigned and entered guilty pleas to both counts, while the case against both his co-defendants was listed for trial on 7 August 2023. Sentencing for the Defendant was put over until the conclusion of his co-defendants’ cases.

5. On 27 April the parties attended court for a further PTPH. Greenslade pleaded guilty to Count 1 and not guilty to Count 2. He indicated that there would be a basis of plea for Count 1, yet to be submitted.

6. On 8 June 2023 the parties attended court for a Further Case Management Hearing (“FCMH”). The Defendant served a basis of plea and in court counsel for the Defendant asked for time for the defence and prosecution to agree it. Martin was arraigned and pleaded not guilty to both counts.

7. On 12 July 2023 the parties attended court for a pre-trial review. No agreement had been reached between the parties regarding the bases of plea and the prosecution submitted that matters in issue be dealt with after the conclusion of Martin’s trial.

8. At a further hearing on 14 July 2023 Greenslade changed his plea on Count 2 to guilty. The prosecution had still not accepted his basis of plea.

9. On 7 August 2023 Martin appeared for trial as listed. On 8 August, the prosecution indicated that it would not be seeking to try Martin in relation to Count 1, and accepted his plea to count 2. The court put his case over for pre-sentence reports.

10. On 15 August the court listed a Newton hearing to take place in respect of Greenslade and the Defendant. Subsequently a hearing took place on 15 December 2023 for Martin and Greenslade. Both were sentenced to terms of imprisonment. The Defendant was unwell and did not attend.

11. At a further hearing on 31 January 2024 the Defendant received a custodial sentence of 7 years and 6 months.

12. The question to be determined on this appeal is whether the hearing of 31 January 2024 was a Newton hearing. The Principles

13. 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.

14. 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.

15. The essential point remains however that there must be a fact-finding exercise for the judge to conduct. The Basis of Plea

16. The Prosecution contended that the Defendant had performed a leading role in the conspiracy, directing or organising sale and purchase on a commercial scale, with substantial links to, and influence on, others in a chain and with an expectation of substantial financial or other advantage.

17. The delivery of 3 kg of cocaine to one Iain Haseldine on 8th June 2022, placed the Defendant’s offending (said the Prosecution) within Category 1, which has a starting point of 5 kg, and justified a starting point of 14 years’ imprisonment within a range of 12 – 16 years.

18. The Defendant accepted that he had organised the supply of cocaine. He also accepted that he assisted in the supply of 3 kg of cocaine to Haseldine on 8 June 2022. His case however was that this was exceptional, and that he would normally arrange for the supply of small, street and personal supplies. The Defence argued that his was a significant, rather than a leading role, involving an amount of drugs much lower than category 1.

19. A Defence Sentencing Note dated 7 December 2023 said this: “,,, There are two parts to his involvement in this case: a. Insofar as the 3 kilos supply is concerned, this was a one-off single supply of a large amount. It was not sophisticated, it was in effect putting Mr Haseldine (who is a personal friend) with another and assisting in that supply. As far as this supply is concerned, the role he played was a limited one, in reality. However, putting people in touch with each other, represents a ‘significant role’. It does not represent a ‘leading’ role. b. Insofar as the ‘Paul Greenslade’ supplies are concerned, the Court is referred to Mr Lodge’s Basis of Plea. At Mr Lodge’s direction, Mr Greenslade would breakdown larger amounts of cocaine into deals that had been arranged by Mr Lodge. Plainly there were others, supplying Mr Lodge relatively small amounts of cocaine. The Crown accepts that a fair approximation, in total, was about 500 grams. This was a ‘Cottage industry’. The Court should take care to promote Mr Lodge into a leading role, when those who were supplying to him are not before the Court. ‘Significant’ far more aptly defines Mr Lodge’s role… … A just approach, would therefore treat Mr Lodge’s role, overall, as a ‘significant’ one.”

20. The key point for the purposes of this appeal, says the Appellant, is that the judge, Ms Recorder Marks, had to decide whether the supply to Haseldine (as the Prosecution contended) formed part of the conspiracy with which the Defendant was charged, or (as the Defence contended) was an independent action, outside the conspiracy. The Respondent’s Submissions

21. Mr Orde, for the Respondent, agrees that there was, by the time of the hearing on 31 January 2024, a difference between Prosecution and Defence as to whether the supply to Haseldine was a “one-off” incident or part of a much wider pattern of activity.

22. Other issues with the potential to trigger factual disputes were, by 31 January 2024, neither interrogated or contested.

23. Any finding in relation to the Haseldine transaction would, he conceded, make a material difference to sentencing but in the Prosecution sentencing note filed in advance of the hearing, the materiality appears to relate to the question of whether Greenslade, rather than the Defendant, was part of a conspiracy to supply to Haseldine.

24. It does not appear to be in dispute that of the three defendants, the Defendant was the leading player; nor that he arranged for Greenslade to carry out lesser transactions; nor that he made the supply to Haseldine. There was no question mark over the amount that was involved in that transaction. The Defence made submissions to the effect that the relationship between Lodge and Haseldine was one of longstanding friends, so running counter to the notion of a sophisticated business transaction, and this in itself does not appear to have been disputed. There was no attempt to deny the fact that Lodge was the “organiser” of the conspiracy before the court.

25. According to a transcript produced for the appeal, Ms Recorder Marks’s own comments at sentencing do not appear to make a clear finding as to the nature of the transaction, but rather to comment that even taking into account the defence’s account of events, it was a transaction that pointed towards an offence of some gravity. She then goes on to place it in the context of all key facts and considerations.

26. The conclusion the Judge was asked to draw in sentencing the Defendant was, accordingly, a matter of interpretation of undisputed fact, consideration of the wider context of known characteristics of drugs-related conspiracies, and application of the relevant guidelines. There was no need for her to make any finding of fact, nor did she. The Appellant’s Submissions

27. In response Mr Kaye, for the Appellant, argues that it is not correct to suggest the supply of cocaine between the Defendant and Haseldine was only relevant to Greenslade. Were Ms Recorder Marks to find that the supply to Haseldine was outside of the conspiracy for the purposes of sentencing Greenslade, it would have had a bearing on the Defendant’s sentencing as well, given that a conspiracy is an agreement to do something in concert with another.

28. The Prosecution’s sentencing note identified this as an issue for the purposes of sentencing the Defendant, who was sentenced alone. The transcript of the proceedings of 31 October offers further evidence of the significance of the issue for the purposes of sentencing the Defendant.

29. In a note to the Legal aid Agency’s Determining Officer the Appellant submitted that Ms Recorder Marks had to decide if the delivery to Haseldine was the Defendant directing or organising supply on a commercial scale, or (as contended by the defence) simply putting one close friend in touch with another. The Transcript

30. A transcript of the proceedings on 31 January 2024 incorporates the following sentencing remarks by Ms Recorder Marks ( I have corrected some typographical errors): “… it is clear to me from the prosecution case which is not denied, indeed in your basis of plea you accept that you organised the supply of cocaine. You accept that you assisted in the supply of three kilos of cocaine to Ian Hazeldean on 8 June 2022, that you were superior in the chain of these three conspirators, the other two of whom, as I have mentioned, I have already sentenced. It is clear to me as well that, from your use of multiple phones, that this operation was quite sophisticated and as various members of the conspiracy were arrested, you ceased using those burner phone numbers and acquired new ones. I am also aware of various text messages between you and Mr Martin, and you and Mr Greenslade, the frequency and nature of which leave me in no doubt that they were acting under your direction. I am urged to find… by your counsel Mr Lodge, that the supply of three kilos to Ian Hazeldean was a one off which was not repeated either before or after that date, in more or less of the indictment period. But that on its own was a very significant supply. There is also of course the matter of the large amounts of cash that both Mr Martin and Mr Greenslade had at various times and indeed not huge, but a significant amount of cash, about £3,000 if I recall correctly was found on the search of your property after you arrest in March 2020… Now as far as the drugs are concerned, you will have and will be aware that the prosecution argue that you had a leading role in this enterprise. That you were organising and indeed you admit that you were organising the buying and selling, but of course the defence disputes that you were doing so on a commercial scale. There were substantial links to influence on others in the chain. The defence of course argues that they were not substantial, you were simply involving others in the operation like Mr Greenslade and Mr Martin. And you had an expectation of either significant or maybe substantial financial advantage from this operation. The dilemma this gives me Mr Lodge is that it seems to me that you fall somewhere between these two and indeed as you have heard in terms of harm, which were drugs, is based on the quantity of the drugs and of course the Class. The top category is for cocaine, five kilos. The next category down, category two is for one kilo. Well clearly your offending, even the admitted amounts, including that to Mr Hazeldean falls between the two. Hence my quandary because there is a really quite a significant difference in the sentencing available for a leading role, significant role, Category 1, Category 2 and as Mr Page urges me, I should have regard to Category 3. The path I have decided to take is to put you in the middle of all of those ranges and therefore, and between leading role and significant role, which means that I have ended up with a starting point for your sentence of 11 years’ custody….” Conclusions

31. The Appellant, as I understand it, has advanced two slightly different versions of the factual issue to be determined by Ms Recorder Marks on 31 January 2024. One is whether the supply to Haseldine fell outside the conspiracy with which the Defendant was charged, itself turning upon whether the Defendant had conspired with Greenslade in relation to that supply, or had acted alone.

32. The other is whether the Defendant’s dealings with Haseldene was merely a matter of putting two friends in touch, rather than a part of his commercial drug supply operation.

33. It seems to me that on 31 January 2024 Ms Recorder Marks was not called upon to decide either of those, or any other, factual issues.

34. The Prosecution produced two notes for sentencing purposes, on 9 and 10 December 2023. The longer note set out a “factual summary of the prosecution case… and a summary of the particular evidence relied upon in relation to the live issue anticipated at Paul Greenslade’s Newton Hearing.” It was accompanied by a shorter sentencing note.

35. Each note referred to all three Defendants. It would seem that the same notes were produced for both hearings, on 10 December 2023 and 31 January 2024.

36. Greenslade’s basis of plea was that he had no involvement in the supply to Haseldine. That would have been resolved, whether by agreement or a judicial finding, on 10 December 2023, when Greenslade was sentenced. There would have been no need to revisit it on 31 January 2024. Nor was it the Defence case that the supply to Haseldine somehow fell outside the scope of the offences to which the Defendant had pleaded guilty.

37. Similarly, it was not contended that the Defendant’s involvement in the Haseldine transaction was limited to putting two friends in touch. The Defendant accepted that he assisted in the supply to Haseldine. In fact, as the transcript of the day’s proceedings show, he admitted making the delivery.

38. This leaves the question of the Haseldine transaction as an exceptional, “one-off” transaction, untypical of the Defendant’s drug distribution business. I appreciate that the words ”I am urged to find… that the supply of three kilos to Ian Hazeldean was a one off which was not repeated…” suggests that it was open to Ms Recorder Marks to find that the supply to Haseldine was, on the contrary, a typical one repeated on other occasions, but on the evidence I do not think that this can be what she meant.

39. The Prosecution did not contend that the Haseldine transaction was typical of the Defendant’s drug supply business, only that in conjunction with his wider involvement in the supply of drugs, it justified a sentence commensurate with a leading role. The Defence position was that the nature of the transaction, in context, did not justify a sentence commensurate with anything more than a significant role.

40. That was the finding that Ms Recorder Marks was called upon to make. It was not a finding of fact but a finding as to the role to be attributed to the Defendant, for sentencing purposes, in the light of uncontested facts.

41. For those reasons this appeal fails, and must be dismissed.