Is the judgement part of the punishment?

Apr 7, 2023

Deputy Prime Minister and Secretary of State for Justice Dominic Raab has this week reaffirmed his determination to expedite a change to the law, that will compel prisoners on remand to attend Court for sentencing.

Mr Raab first committed to this change in December 2022 when Jordan McSweeney, the killer of Zara Aleena, refused to attend his sentencing hearing. In a move also welcomed by opposition leader Sir Keir Starmer, the Justice Secretary confirmed his intention for Government to change the law ahead of the next general election, forcing criminals to face victims and their families in court after Thomas Cashman, the killer of nine-year old Olivia Pratt-Korbel, also chose to enforce his current right not to attend Court to hear his sentence being handed down.

Mr Raab said the change was needed as a matter of respect and recognition, and for the Principle of British Justice, stating that “spineless criminals who hide from their sentencing prolong the suffering of victims’ families.”

Mr Raab is also said to be considering whether Judges should be given the ability to impose longer terms on those who refuse to attend Court.

What is the current law on sentencing attendance?

According to the Crown Prosecution Service (CPS), the Crown Court may proceed to sentence a defendant in absence unless Criminal Procedure Rule 25.2(1)(C) applies, which states that the Court must not sentence the defendant to imprisonment or retention unless:

  1. The defendant has a legal representative,
  2. The defendant has been sentenced to imprisonment or detention on a previous occasion in the UK,
  3. The defendant could have been represented under Legal Aid, but is not because Section 226 (7),(8) of the Sentencing Act 2020 applies (i.e. the offender has refused or failed to apply for relevant representation, the offender’s application for relevant representation was refused on financial grounds, or relevant representation was made available to the offender but withdrawn)

However, it is also worth noting that current HM Prison and Probation Service guidance indicates the Court must communicate to the prison whether the defendant’s attendance is necessary, and why, so the prison can decide whether force is to be used to bring the defendant before the Court. Even if the court determines that the defendant’s attendance is necessary it remains a decision for the prison whether, and what, reasonable force is used on the defendant to secure attendance. The prison will take this decision considering all the circumstances, including the defendant’s conduct and behaviour at the point at which force is to be used.

Is sentencing in absentia a Human Right?

Whilst there will be those that object to the legislation change on the grounds of human rights, it is worth noting that if an individual is convicted and remanded in custody until sentencing, i.e. on ‘Judges Remand’, they are already no longer entitled to the privileges afforded to unconvicted individuals and are treated as a sentenced prisoner.

What do you think?

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