9.3 Sentencing Procedure: Newton Hearings, Reports & Goodyear Indications
Key Takeaways
- Where a guilty plea is entered on a factual basis the prosecution does not accept, and the difference is material to sentence, the court must resolve it by a Newton hearing.
- At a Newton hearing the judge is the tribunal of fact and the prosecution must prove its version of the disputed facts to the criminal standard.
- A Newton hearing is unnecessary where the dispute would make no difference to sentence, where the defence version is manifestly absurd, or where the defence version can simply be accepted.
- A Goodyear indication is of the maximum sentence that would be imposed on a plea of guilty on the agreed basis, must be requested by the defence and never initiated by the judge, and binds that and any other judge.
- Section 30 of the Sentencing Code requires the court to obtain and consider a pre-sentence report before forming an opinion on the custody or community thresholds unless it considers a report unnecessary.
9.3 Sentencing Procedure: Newton Hearings, Reports & Goodyear Indications
Sentencing is a distinct hearing with its own rules of proof. The single biggest source of error is treating the prosecution's account as established simply because the defendant pleaded guilty.
1. Establishing the facts
After a trial
The judge sentences on the basis of the jury's verdict and their own view of the evidence, provided that view is consistent with the verdict. Where the verdict is ambiguous, the judge must adopt the view of the facts most favourable to the defendant unless the verdict necessarily excludes it.
After a guilty plea — the basis of plea
Where a defendant pleads guilty, the basis of plea should be reduced to writing, signed by the defendant's advocate and put before the prosecution and the court. The prosecution's options are to accept it, to reject it, or to say it makes no difference to sentence.
Newton hearings
Where the prosecution rejects the basis of plea and the difference is material to sentence, the court holds a Newton hearing (R v Newton (1982); procedural guidance in Underwood).
| Feature | Rule |
|---|---|
| Tribunal | The judge alone, sitting as the tribunal of fact — no jury, even in the Crown Court |
| Burden | On the prosecution |
| Standard | Beyond reasonable doubt — the criminal standard |
| Evidence | Witnesses may be called and cross-examined; the defendant may give evidence |
| Outcome | The judge makes findings and sentences on that basis, giving reasons |
When a Newton hearing is not required:
- The dispute is immaterial — the sentence would be the same on either version;
- The defence version is manifestly absurd or wholly incredible, in which case the judge may reject it without hearing evidence, but must say so and give reasons;
- The prosecution simply accepts the defence version;
- The dispute concerns matters which the defendant could only establish by his own assertion of facts extraneous to the offence, where the judge may hear him and reject the account.
Duties. The defence must make the issue clear in good time; the prosecution must assist the court, including by calling the evidence necessary to prove its version; and the court must resolve any issue that matters to sentence.
Consequences. A defendant who loses a Newton hearing will normally have their plea credit halved, and may lose more where witnesses had to give evidence.
Offences taken into consideration (TICs)
A defendant may ask for other offences to be taken into consideration. The schedule must be signed by the defendant and the offences admitted. TICs are not convictions, but they permit the sentence for the index offence to be increased to reflect the wider offending, and they give the offender protection from later prosecution in practice (though not in strict law).
2. Informing the court about the offender
| Material | Provision / source |
|---|---|
| Pre-sentence report (PSR) | s.30 Sentencing Code: the court must obtain and consider a PSR before forming an opinion on the custody threshold, the length of a custodial sentence, or the community threshold and the requirements of a community order, unless it considers a report unnecessary. Failure to obtain one does not invalidate the sentence, but an appellate court must then obtain one unless it too thinks it unnecessary |
| Medical / psychiatric reports | s.232 Sentencing Code: before passing a custodial sentence on an offender who is or appears to be mentally disordered, the court must obtain and consider a medical report unless it considers it unnecessary, and must consider the likely effect of a custodial sentence on the offender's condition and treatment |
| Antecedents | The prosecution provides a record of previous convictions and cautions and the circumstances of the offence |
| Victim personal statement (VPS) | Made under the Criminal Practice Directions. It allows the victim to describe the effect of the offence in their own words. The victim's opinion about the sentence is not relevant and must be ignored; the effects described are |
3. Goodyear indications
R v Goodyear [2005] EWCA Crim 888 permits a defendant to seek an advance indication of sentence. The rules are precise and heavily examined:
- The defence must request it. The judge should never initiate an indication, because to do so would apply improper pressure to plead. Counsel must have the defendant's written authority.
- The indication is of the maximum sentence that would be imposed if a plea of guilty were tendered at that stage. It is not an indication of what would follow a trial, and the judge must never indicate the difference between the two.
- The factual basis must be agreed and reduced to writing before an indication is sought. Where the facts are in dispute, the judge should ordinarily decline to give an indication until the dispute is resolved.
- Prosecution duties: to ensure the judge has the antecedents, the relevant guidelines and any minimum-sentence provisions, and to draw attention to anything that would make the proposed indication unlawful. The prosecution should not itself invite an indication.
- Effect. Once given, the indication binds the judge who gave it and any other judge who becomes responsible for the case. If the defendant does not plead guilty within a reasonable time, the indication ceases to have effect.
- Openness. The hearing takes place in open court, with the defendant present and a recording made, and reporting restrictions apply until the conclusion of the case.
4. Deferment, pronouncement and reasons
Deferment of sentence. Under ss.3–13 of the Sentencing Code the court may defer sentence for up to six months, with the offender's consent and where it is in the interests of justice, to see how they respond to specified requirements. Where they comply, the sentence should reflect that; where they do not, they may be brought back and sentenced.
Pronouncement and reasons. By s.52 of the Sentencing Code the court must give reasons for, and explain the effect of, the sentence — in ordinary language and in general terms — including identifying any guideline and explaining any departure from it, and explaining the effect of the reduction for a guilty plea. The sentence takes effect from the day it is pronounced.
Time on remand. Time spent on remand in custody counts automatically towards a determinate sentence. Time on bail subject to a qualifying curfew of at least 9 hours a day with electronic monitoring counts at half the number of days, and the court must state the credit it has given.
Exam traps in this section
- At a Newton hearing the prosecution proves its version beyond reasonable doubt — the defendant proves nothing.
- A Newton hearing is a judge-alone exercise, even on indictment.
- A Goodyear indication is of the maximum on a plea, must be defence-requested, and binds any judge who takes the case.
- The VPS conveys effects, not opinions about sentence.
- s.30 requires a PSR unless the court considers one unnecessary — it is a duty with an exception, not a discretion.
A defendant pleads guilty to assault occasioning actual bodily harm on the written basis that he threw one punch. The prosecution asserts he stamped on the complainant's head. The difference moves the case between guideline categories. How must the court proceed and where does the burden lie?
Defence counsel, with the defendant's written authority and on an agreed written basis of plea, asks the judge for an indication of sentence. Which statement about the indication is correct?
A victim personal statement in a burglary case describes the victim's continuing anxiety and inability to sleep, and concludes that the defendant 'should get at least five years'. How should the judge treat it?