R v Lindley [2025] EWCA Crim 1213: No Newton Hearing Where Alleged Prior False Allegations Would Not Materially Affect Sentence; Delayed “Provocation” Is Not Significant Mitigation for Attempted Murder

Introduction

In this appeal from the Crown Court at Southwark, the England and Wales Court of Appeal (Criminal Division) addressed when, if at all, a sentencing judge must hold a Newton hearing to resolve disputed background allegations said to bear on mitigation. The appellant, who had pleaded guilty at the first opportunity to attempted murder of a flatmate in key‑worker accommodation at Charing Cross Hospital, received an Extended Determinate Sentence (EDS) of 18 years, comprising 13 years’ custody and a five‑year extended licence. His sole ground of appeal, for which leave had been granted, was that the judge wrongly refused a Newton hearing on whether the victim had made false sexual allegations which, the appellant argued, amounted to provocation reducing culpability and sentence.

The Court of Appeal dismissed the appeal. It held that, even assuming the contested background assertions were true, they could not amount to a “significant degree of provocation” materially reducing sentence in the context of a delayed, targeted, knife‑enabled attempted murder on a sleeping victim. Consequently, there was no need for a Newton hearing because the dispute would not have altered the sentencing outcome.

Background and Key Facts

The appellant and the victim, Mr Marvie Orbiso, shared a two‑bedroom flat within hospital key‑worker accommodation, each living with their partners and sharing kitchen and bathroom facilities. In December 2023, Mr Orbiso complained to the Housing Association about the appellant’s behaviour, describing him as an alcoholic and alleging sexual misconduct. Following a separate employment‑related issue concerning the appellant’s partner, notice to quit the accommodation was given on 8 January 2024.

On 31 January 2024, after drinking, the appellant entered Mr Orbiso’s bedroom while Mr Orbiso slept, armed with a knife taken from the shared kitchen, and announced his intention to kill. He stabbed the victim multiple times (shoulder, arm, and seven wounds to the back), choked him, and stated repeatedly that he would kill him. The appellant promptly admitted the stabbing to security and police. The victim suffered multiple stab wounds and ongoing psychological harm, along with significant financial and personal consequences, including a relationship breakdown.

The appellant’s basis of plea denied the sexual impropriety alleged by the victim and suggested there had been prior consensual sexual activity. He contended that any “false” complaint had caused serious aggravation of his pre-existing mental health issues and led to the loss of accommodation. On that footing, the defence argued for a Newton hearing to determine whether false allegations had “provoked” the offence so as to mitigate sentence.

Summary of the Judgment

• The Court upheld the sentencing judge’s decision to refuse a Newton hearing. Even if the victim’s allegations were false, the circumstances did not amount to a “significant degree of provocation” capable of materially reducing the sentence (paras 21–22).
• The attack occurred over a month after the appellant learned of the complaint, following drinking, and involved taking a knife into the victim’s bedroom and mounting a sustained, lethal assault while the victim was asleep. This was not a spur‑of‑the‑moment reaction (paras 21, 23).
• The judge correctly sentenced within Category 2B of the Sentencing Council’s guideline for attempted murder, adopting a notional after‑trial sentence at the bottom of the range (20 years) and then applying one‑third credit to arrive at 13 years’ custody (paras 16–18, 23).
• The EDS was justified; the appellant was correctly assessed as dangerous, and an extended licence of five years was imposed (paras 18, 23).
• No error of principle or manifest excess was shown; the appeal was dismissed (para 24).

Detailed Analysis

1) Precedents and Instruments Relied Upon

The judgment does not cite case authorities by name. Instead, it applies:

• The Sentencing Council guideline for attempted murder, which structures sentencing by culpability (A–C) and harm (Categories 1–3), and includes as a factor reducing seriousness “a significant degree of provocation.”
• The established law on Newton hearings: a judge need only resolve factual disputes by a Newton hearing where the dispute would materially affect sentence; if the disputed fact, even if resolved in the offender’s favour, would make no material difference, a hearing is unnecessary.

Notably, the Crown submitted that any false allegation functioned as a motivator for revenge, which at best carries minimal weight in mitigation and may aggravate culpability given the temporal gap and the planned nature of the attack (para 12). The Court implicitly endorsed that approach in its outcome.

2) The Court’s Legal Reasoning

a) The materiality threshold for a Newton hearing

The central legal question was whether the alleged falsity of the victim’s sexual complaint—if proved—could amount to mitigation sufficiently significant to warrant a Newton hearing. The Court emphasised that the guideline recognises “a significant degree of provocation” as a factor that may reduce seriousness. But this is not automatic: the judge must weigh that factor “in the context of what actually happened” (para 21).

Crucially, the Court reasoned that, even accepting the appellant’s account arguendo, the allegation surfaced a month earlier; the appellant took no steps to rectify matters; and, while intoxicated, he executed a sustained, armed, surprise attack on a sleeping victim with the stated intent to kill (paras 21–22). In those circumstances:

• Any sense of grievance could not constitute “a significant degree of provocation” that would materially change the sentence (para 22).
• Therefore, there was no need to conduct a Newton hearing, because the factual resolution sought could not affect sentencing outcome (paras 21–22).

b) Provocation versus revenge and proportionality

The Court drew an implicit boundary between provocation capable of mitigation and vengeance for perceived past wrongs. “Provocation” in the guideline sense must be significant and is assessed in context, including proximity in time and proportionality of response. Here, the attack was:

• Temporally removed from the alleged slight (a month later), undermining any link to an immediate, loss‑of‑control reaction.
• Precipitated by the appellant arming himself and entering the victim’s private room, indicating preparation and a power imbalance.
• Extremely disproportionate—multiple stabbings and strangulation against a sleeping victim—dwarfing any alleged emotional provocation.

Against that backdrop, the alleged “provocation” could not sensibly mitigate seriousness. The Court’s approach aligns with the principle that mitigation by provocation diminishes as planning, delay, and disproportionate brutality increase.

c) Guideline categorisation and overall sentence

The sentencing judge placed the offence within Category 2B (high culpability due to taking a knife to the scene and a sustained attack; Category 2 harm due to serious psychological and physical harm) and selected the bottom of the range—20 years—as the notional after‑trial sentence, reflecting:

• Limited “geographical journey” of the knife (taken from the shared kitchen into the victim’s bedroom).
• Serious but arguably borderline Category 2 harm in the context of attempted murder.
• Personal mitigation including good character and a long caring work history (para 17).

After one‑third credit for a plea at the first opportunity, the custodial term was 13 years. The Court noted that 20 years also corresponds to the starting point for Category 2C and 3B cases, underlining that even if categorisation were arguable, the ultimate sentence was within the appropriate range and not manifestly excessive (para 23).

d) Dangerousness and the Extended Determinate Sentence

The Court upheld the finding of dangerousness and the imposition of an EDS under section 280 of the Sentencing Act 2020, with an extended licence of five years (paras 18, 23). In doing so, it reiterated that where an offender poses a significant risk to members of the public of serious harm from further specified offences, an EDS may be necessary for public protection. The appellant did not challenge this aspect in the appeal.

3) Impact and Significance

a) Clarifying when Newton hearings are unnecessary

Lindley provides clear guidance: a Newton hearing is not required where, even if the disputed background is resolved in the offender’s favour, it would not materially alter the sentence. This promotes procedural economy and prevents unnecessary satellite litigation, particularly where alleged “provocation” is historic, attenuated by delay, and far outweighed by the gravity and planning of the offence.

b) Setting limits on “provocation” as mitigation for attempted murder

The decision draws a firm line between:

• Immediate, significant provocation closely connected to the offence; and
• Delayed, revenge‑motivated violence after reflection and preparation.

The latter will ordinarily carry little or no mitigation under the attempted murder guideline. Defence arguments that historic allegations (even if false) can significantly reduce culpability will face a high bar, especially where the offense involves arming, intrusion into a victim’s private space, and a sustained lethal assault.

C) Practical sentencing consequences

• Judges may lawfully refuse Newton hearings when mitigation based on background disputes is immaterial in the context of a planned or revenge attack.
• Prosecutors can argue that even conceded or assumed background grievances do not alter the sentence where the attack was planned or disproportionate.
• Defence practitioners should focus on mitigation with a direct, proximate, and proportionate nexus to the offending; historic slights, however upsetting, are unlikely to carry significant weight where the violence is extreme.
• Appellate review will be reluctant to disturb sentences that are within range and not manifestly excessive, particularly where the notional sentence aligns with multiple guideline categories.

Complex Concepts Simplified

What is a Newton hearing?

A Newton hearing is a short, judge‑led evidential hearing used after a guilty plea where there is a significant factual dispute that would materially affect sentence. Key points:

• If the prosecution asserts facts that would increase sentence, the court should not sentence on that basis unless it is sure of those facts.
• If the defendant asserts facts that would reduce sentence, the defendant bears the burden to establish them; if the dispute cannot be resolved or would not make a material difference, no hearing is required.
• If even the defendant’s version would not materially alter sentence, the court can proceed without resolving the dispute.

“Significant degree of provocation” as mitigation

Under the attempted murder guideline, a “significant degree of provocation” may reduce seriousness. The court assesses:

• Proximity and immediacy: Was the reaction close in time to the provocative act?
• Proportionality: Was the response grossly disproportionate?
• Context: Did the offender plan or prepare the attack (e.g., arming with a knife, entering a bedroom at night)?

Mitigation is weaker where the offence was planned, delayed, or vastly disproportionate—especially for attempted murder.

Extended Determinate Sentence (EDS) under the Sentencing Act 2020

An EDS is imposed where:

• The offence is “specified” (attempted murder is a specified violent offence).
• The offender is “dangerous,” meaning there is a significant risk of serious harm from further specified offences.
• The court considers an extended licence period necessary for public protection.

The sentence comprises a custodial term plus an extended licence (up to five years for violent offences). Release during the custodial term is typically considered by the Parole Board after a statutory fraction of the custodial term; if not released, the offender may serve the full custodial term before serving the extended licence in the community.

Guideline categorisation for attempted murder

The guideline structures sentencing by culpability and harm. Relevant here:

• High culpability (Category B) can be indicated by taking a knife to the scene and by a sustained attack.
• Harm Category 2 reflects serious physical and psychological harm, assessed holistically.
• Starting points and ranges overlap; a notional 20‑year sentence sits at the bottom of Category 2B and is also a starting point for 2C and 3B, illustrating how appellate courts assess overall fairness beyond labels.

Practice Notes

For defence practitioners

• Before seeking a Newton hearing, articulate precisely how the disputed fact would materially affect sentence. If, even on the defence case, the factor amounts to historical grievance leading to a revenge attack, expect refusal.
• Focus mitigation on contemporaneous pressures with a direct, proportionate link to the offending, supported by psychiatric and other corroborative material where relevant.
• Good character and long periods without offending can assist, but will be limited where the offence is highly aggravated by planning, location (victim’s bedroom), and weapon use.

For the prosecution

• Resist Newton hearings where the dispute is immaterial; argue that alleged provocations which are delayed and followed by prepared violence cannot significantly mitigate under the guideline.
• Emphasise features indicating preparation and sustained violence, especially when the victim is vulnerable (asleep in bed) to support high culpability categorisation.

For sentencers

• Apply the materiality test rigorously: if a factual dispute, even resolved in the defendant’s favour, would not move the dial, a Newton hearing is unnecessary.
• Assess “provocation” contextually, considering timing, proportionality, and planning. Revenge‑motivation typically carries little or no mitigation.
• When categorisation is contested, consider whether the chosen notional sentence sits comfortably within overlapping ranges; appellate courts look to overall justice and excess rather than labels alone.

Conclusion

R v Lindley crystallises two interlinked principles. First, a Newton hearing is not required where the disputed fact—even if decided in the defendant’s favour—would not materially affect sentence. Second, within the attempted murder guideline, delayed vengeance for historic grievances, including alleged false allegations, will very rarely amount to a “significant degree of provocation” justifying any real mitigation—particularly where the attack is planned, sustained, and targeted at a sleeping victim with a weapon.

The Court’s approach underscores a pragmatic, context‑sensitive application of the guideline, emphasises proportionality and timing in evaluating provocation, and confirms an orthodox stance on appellate restraint where the overall sentence is within guideline ranges and not manifestly excessive. For practitioners, Lindley is a clear signpost: reserve Newton hearings for disputes that truly matter to outcome, and do not expect historic slights to carry meaningful mitigation against the gravity of a premeditated attempted murder.