Articles Criminal Regulatory 10th Feb 2017

Unpicking Newton Hearings in Health and Safety Prosecutions

This article was first published on LexisPSL on February 2, 2017.

Corporate Crime analysis: Alexandra Tampakopoulos of 2 Hare Court discusses what practitioners need to weigh
up when deciding whether to proceed with a Newton hearing. 

Briefly, what is a Newton hearing?

Where an offence or offences are admitted but there is a factual dispute between the prosecution and the defence which
would have a material impact on sentencing a Newton hearing will be required to determine the dispute (see R v Newton
(1982) 77 Cr App Rep 13 and R v Underwood [2004] EWCA Crim 2256, [2004] All ER (D) 575 (Jul)).
At a Newton hearing the prosecution and the defence will call evidence in relation to the matter/s in dispute as if at trial.
Advocates have an opportunity to examine witnesses. The judge may also put questions to witnesses. At the conclusion
of the evidence the judge will determine the dispute applying the normal criminal standard of proof.
Where the factual issues are resolved entirely in a defendant’s favour credit for the guilty plea/s will not be reduced. If,
however, there is an adverse Newton finding for the defence credit will be reduced. Indeed, whether any credit will survive
will depend on all the circumstances of the case such as the extent of the issue/s determined, whether the defendant was
disbelieved, whether the defendant showed any insight into the consequences of the offence and/or genuine remorse,
whether lay witnesses had to be called, and the extra public time and effort expended.

Why are Newton hearings so important in health and safety prosecution cases?

More often than not, the most powerful mitigation when defending in health and safety prosecutions will be the proffering
of guilty pleas at the first reasonable opportunity. In accordance with the Sentencing Guidelines Council’s definitive
guidelines for reductions in sentence for a guilty plea such pleas will attract credit of up to one third. This reduction has
become particularly significant since the introduction of the sentencing guidelines for health and safety offences, effective
since 1 February 2016, which have dramatically increased the level of fines imposed on both individuals and

As well as categorising the seriousness and likelihood of harm risked by the offence/s the sentencing guidelines
categorise the offender’s culpability as follows: very high, high, medium and low. A deliberate breach or flagrant disregard
for the law will amount to an assessment of the offender’s culpability as very high. Where an offender has fallen short of
the appropriate standard (for example, by failing to put in place measures that are recognised standards in the industry,
ignoring concerns raised by employees or others, failing to make appropriate changes following prior incident(s) exposing
risks to health and safety or allowing breaches to subsist over a long period of time or where there is a serious and/or
systemic failure within the organisation to address risks to health and safety) the offender’s culpability will be assessed as
high. Where an offender fell short of the appropriate standard in a manner that falls between descriptions in ‘high’ and
‘low’ culpability categories or systems were in place but these were not sufficiently adhered to or implemented the
offender’s culpability will be assessed as medium. Where the offender did not fall far short of the appropriate standard or
failings were minor and occurred as an isolated incident the culpability assessment will be low.

The presence of particular culpability factors and the consequent culpability assessment can have a huge impact on the
level of fine. For example, where the prosecution is able to prove that the offender company ignored concerns raised by
employees this will result in a high culpability assessment. Assuming harm category 2, a small organisation (with a
turnover or equivalent between £2m and £10m) will face a starting point fine of £100,000 with a range of £50,000–
£450,000. A successful Newton hearing which challenges the presence of this culpability factor will result in a medium
culpability assessment. Assuming harm category 2, the relevant starting point for a small organisation will be £54,000 with
a range of £25,000–£230,000. However, an unsuccessful Newton hearing will not only leave unchanged the culpability
level but will reduce significantly or may indeed have the effect of eradicating credit for the defendant’s original guilty
plea/s which may equate to as much as a third of the sentencing range of £50,000–£450,000 for high culpability

What factors should health and safety practitioners consider when deciding whether a Newton
hearing is appropriate?

Whether a Newton hearing is appropriate will very much depend on the significance of the matter in dispute. In particular,
whether it amounts to a culpability factor which by itself increases the level of culpability or whether it is a matter than can
be properly addressed in mitigation. Given the possibility of losing what is often the most compelling piece of mitigation for
the defendant, the early guilty plea, under the harsher sentencing guidelines brought into effect last year, health and
safety practitioners will want to think very carefully before embarking on a Newton hearing. Practitioners will also want to
bear in mind that any defence witness called to give evidence may well be asked questions by the judge that are not
necessarily confined to the matter/s in dispute and relate to matters that the plea/s entered are concerned with.
Depending on the significance of the disputed matter there may be scope for discussions with the prosecution having
regard to the overall impact on the sentencing picture, the defendant’s previous character, level of co-operation with the
investigation and any changes introduced since the commission of the offence/s.

What practical tips can you give on advising on and conducting a Newton hearing in health
and safety cases?

Conventional wisdom dictates that Newton hearings are to be avoided if possible. It will often be very hard to improve on a
position where a guilty plea if not multiple guilty pleas to health and safety offences have already been entered. However,
where a disputed matter cannot be resolved through any other means, in advance of the hearing, appropriate preparation
in respect of both the documentary and witness evidence to be relied upon will be required as well as focused questioning
and submissions on those matters which are contested.

Alexandra Tampakopoulos advises and acts in all matters involving alleged breaches of health and safety. Her practice
covers the full range of offences from corporate to gross negligence manslaughter to prosecutions under the Health and
Safety at Work etc Act 1974 arising from fatal and non-fatal accidents. She has significant experience advising and acting
for clients across a wide range of industries including construction, retail, manufacturing, agriculture, technology, media
and telecoms.

Interviewed by Barbara Bergin, LexisPSL.

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