Director of Public Prosecutions v Pierce Giles [2019] EWHC 2015 (Admin)

This is an appeal by the Crown by way of case stated from the decision of justices sitting at the North Tyneside Magistrates’ Court on 30 November 2018 to sentence the Respondent Pierce Giles in respect of an assault occasioning actual bodily harm, to which he had pleaded guilty, without having held a Newton hearing and reaching a factual determination as to whether (and, if so, the extent to which) (i) the Respondent had demonstrated towards the victim of the offence hostility based on his actual or presumed sexual orientation and/or (ii) the offence was motivated by hostility towards persons who are of a particular sexual orientation. It had been the prosecution case that the Respondent had demonstrated, or been motivated by, such hostility.

Held: “…it is in theory open to a court to determine that a case presented by the prosecution as aggravated by virtue of section 146, which is disputed by the defence, does not require a Newton hearing, where it is of the opinion that the existence of the aggravating factor would not make a material (rather than “significant”) difference to the sentence. However, where the evidence is such that it leaves open a finding that homophobic circumstances (or other circumstances set out in section 146) may be made out (and thus the statutory aggravation for sentencing purposes must be applied), it is difficult to conceive of circumstances which, in practice, the aggravation will be necessarily immaterial such that a Newton hearing to find the facts will not be required. Certainly, if such circumstances exist, they will be very rare in practice. In any event, for the reasons I have given, even if such a case were toarise, the court may be required to hold a hearing to ascertain whether section 146 circumstances were present at the time of the offence, so that a statement under section 146(3)(b) can be given in open court.”