Justice at Gunpoint? Why Forcing Defendants To Attend Court Is A Slippery Slope

The decision of one of the country’s most callous serial killers, Lucy Letby, to not attend her sentencing following being found guilty of the murder of seven vulnerable babies on a neonatal ward and the attempted murder of six others (one of whom she attempted to kill one two occasions resulting in two charges) has re-ignited a significant debate.

In June, the killers of nine-year-old Olivia Pratt-Korbel refused to attend their sentencing, this led to the new Justice Secretary, Alex Chalk KC, to respond stating:

““I am pleased to be able to say that we are committed to bringing forward legislation to enable offenders to be compelled to attend their sentencing hearing. Offenders who rob innocence, betray lives and shatter families should be required to face the consequences of their actions and hear society’s condemnation expressed through the sentencing remarks of the judge.”

The recent refusal of Lucy Letby has only furthered and produced widespread support for a change in the law, a sentiment which is being strongly echoed both in the media and within the public sphere online and in person. The vile nature of these acts has provoked such a deep emotional response in many, that considerations for the wider perspective has been lost, whilst this is understandable, we must not allow these vehemently vile acts to lead a rushed charge to altering the law and removing the rights of all defendants in response to the cowardice of the few. It’s crucial to approach this topic with a comprehensive understanding of the larger picture and the implications of forcibly bringing defendants into court.

The current position regarding the refusal of defendants to attend their sentencing is addressed within CPS Guidance which outlines procedures to be followed. The guidance seeks to ascertain the reasons behind the non-attendance and provides the possibility of proceeding via video link. Further, the Guidance points out that it is the court and not the prosecution that communicates with the prison to determine the necessity of the defendant’s attendance. Yet, as emphasised by Mr Justice Goss in the Letby Case, “The court has no power to force her to attend.”.

Wanting to force defendants to court to face the music, to face the sentence, and more importantly to face those whose lives they have impacted and destroyed, is an understandable desire and, as the Secret Barrister points out:

“Murderers such as Lucy Letby should publicly face the consequences of their actions. On that, everybody is agreed. But achieving this is nowhere near as simple as politicians are pretending.”

SB goes on to explain that:

“Once again, the drawbacks of policy being drawn by people with no experience of the criminal justice system, and no interest in speaking to those who have it, are all too obvious. Because I can tell you from extensive experience that somebody intent on disrupting court proceedings will generally find a way. Raab’s plan, far from guaranteeing an obedient and contrite defendant sitting meekly in the dock, is far more likely to encourage the hideous spectacle of a wild, bloodied and bruised prisoner shouting foul abuse at the victims’ families in court as a mechanism to have the judge send them back down to the cells. Even on a lower level of non-compliance, the vision of a defendant sitting in the dock with his eyes closed and fingers performatively in his ears, or smirking remorselessly as the victims read out their personal statements, is stomach-churning. But, unless the policy is to involve gagging, binding and propping up eyelids with matchsticks, it is also practically impossible to eliminate.”

Former Old Bailey Judge, Wendy Joseph KC has addressed these calls by pointing out that:

“I’m not entirely sure that they [victims & their families] would necessarily like what would happen if she were forced into the dock. If we take a step back from her for a moment, and just imagine what could happen in any case where you force someone into the dock…you can imagine circumstances where someone hijacks the case effectively by talking at length and loudly about how innocent they are, about how the juries’ got it all wrong, and disrupting proceedings, or even by crying very loudly and making themselves the centre of attention when the attention really needs to be elsewhere.”

“The last thing that you would want to do is to run the risk of reducing it to some sort of circus.”

We must then, unlike many commentators and particularly politicians, consider the practical side, if a defendant resists or reacts aggressively, how far are we willing to go to ensure compliance? How much are we willing to harm, injure and maim a defendant so that the victims can see the defendant sentenced. Richard Madeley has, in a very black and white manner, suggested that:

“…that’s why you go in mob handed, and frankly you have tasers to deal with people like that and you have truncheons and you have hand guns.”

But where do we draw the line between enforcing attendance and safeguarding human rights? Because, though many would like to ignore this fact, and many more would like to see them removed, defendants and prisons do and MUST have rights. As I have written before on this blog, it is the rights of those who we most dislike, hate, disagree with and consider the absolute worst of society, whose rights must be protected above all else.

Forcibly bringing a defendant to court could violate their right to liberty and security. Moreover, if force or intimidation tactics are used to ensure their presence, this may infringe upon their right not to be subjected to torture or inhuman or degrading treatment. Again, many will look at that and not care, many would look at that and say “good, it’s what they deserve”, but it’s a slippery slope, and it’s crucial to balance the demand for justice with the principles that uphold the sanctity of human rights – Yes, even the human rights of those who so many wish did not have them.

While it’s understandable to seek the presence of defendants during their sentencing, especially in high-profile cases that evoke such strong emotions, it’s paramount to adhere to the foundational principles of justice and human rights. Pressing ahead with legislation to enforce attendance might seem like a solution on the surface. Yet, as Joshua Rozenberg poses when asking ourselves why this has become the focus of this case:

“Is it because some believe that one more day in court will make more of an impact on her than 10 months in the dock? Do they think she will otherwise never find out what her victims families and the judge say…Or is it because we project our own feelings on someone who behaves in such an unnatural way, imagining she will suffer more from a day in court than a life in prison? Her choice not to attend is the last decision she will ever make about where she spends her time. In the years to come, perhaps she will learn to regret it”

Before we rush to make legal amendments, it’s crucial to think of the broader implications, ensuring that the pursuit of justice doesn’t inadvertently compromise the rights of individuals, no matter how heinous their crimes or how vile they are.

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