Ben Douglas-Jones represented the DPP in a Case Stated in which the Lord Chief Justice:
(1) ruled that where a Newton hearing and trial were held concurrently the evidence of the co-defendant who had pleaded guilty was inadmissible as against the co-defendant facing trial:
The defendant facing the Newton hearing was not a witness who was called by the Crown as part of the prosecution case. Nor was he called by the defence. There is no suggestion that he was called by the judge. He therefore was not a witness in the trial and the evidence he gave should not have been admitted or taken into account in any way by the judge in determining the guilt of the defendant facing trial [paragraphs 23-24].
(2) reviewed the authorities concerning Newton hearings where co-defendants face trial and considered the correct approach to Newton hearings in light of critical reviews of previous decisions; and
(3) held that where a tribunal of fact will come to a conclusion in a trial as to the issue in contention in a Newton hearing of a co-defendant:
It may be that in such cases consideration could be given to the use of s.28 of the Youth and Criminal Justice Act 1999 to pre-record the cross-examination of the prosecution witnesses by the advocate for the defendant in the trial and by the advocate for the defendant in the Newton hearing, but this must await the making of provision for evidence to be given under s.28 in the Youth Court. Permitting such a practice would require a small departure from convention, as the advocate for the defendant in the Newton hearing would be invited to cross-examine at the same time as the advocate in the trial, but I can see no reason in principle why this could not be done [paragraph 34]; and
(4) while a judge is to be commended for proceeding as quickly as possible where issues of law are identified on the day of trial when they should have been identified before, they should nevertheless be properly explored [paragraph 36].