The current Justice Secretary Dominic Raab thinks so. The recent, tragic murders of Sabina Nessa and Zara Aleena have prompted Mr Raab to consider new legislation which will see those convicted of serious offences compelled to attend court and face the families of those they have harmed. Both convicted murderers Jordan McSweeney and Koci Selamaj refused to attend their sentencing hearings which meant the families of Sabina and Zara were unable to put their Victim Personal Statements to them. Mr Raab says he wants to “make sure courts have the power to compel someone who’s been convicted of a serious crime to come and face the sentence... is the very least the victims deserve… and is a basic principle of British justice”[1] but what are the implications of this proposal?

The Law

At present, those convicted of serious offences can choose not to attend their sentencing hearing.[2] The Criminal Procedure Rules 2020 at rules 25.2(1)(b) and (c) deal with trial and sentence in the Crown Court (the appropriate forum) and provides that:

25.2.—(1) Where this Part applies, the general rule is that—

(b) the court must not proceed if the defendant is absent, unless the court is satisfied that—

(i) the defendant has waived the right to attend, and

(ii) the trial will be fair despite the defendant’s absence; and

(c) the court must not sentence the defendant to imprisonment or detention unless—

(i) the defendant has a legal representative,

(ii) the defendant has been sentenced to imprisonment or detention on a previous occasion in the United Kingdom, or

(iii) the defendant could have been represented under legal aid but is not because section 83(3) of the Powers of Criminal Courts (Sentencing) Act 2000(1) applies to him or her.[3]

Mrs Justice Cheema-Grubb’s sentencing remarks in the McSweeney case acknowledges the current legal position: “The defendant has been brought to court today but has refused to come up to this court room. He has given an excuse that he does not want to revisit the events he is responsible for. It is agreed that his non-attendance is voluntary and it is appropriate to sentence him in his absence… the defendant’s decision not to come up from the cells to court, … shows that the man who took Zara Aleena’s life has no spine whatsoever.”[4]

Similarly, in the Selamaj case, Mr Justice Sweeney remarked: “Yesterday the Defendant refused to leave the prison to attend Court, or to attend from the prison via video link. He has also refused to attend today. However cowardly those refusals may be, I have no power to force him to attend. On the other hand, it is not disputed that his non-attendance is voluntary, and that it is appropriate to sentence him in his absence.”

The commentary above demonstrates the unequivocal view taken by members of the judiciary in respect to those who refuse to attend court, particularly those guilty of such serious offences. It further shines a spotlight on the restrictions imposed on them to compel attendance.

Implications

A sense of justice for the victim’s family

Sabina’s sister said it was “outrageous” that her “sister’s killer was able to decide whether or not to come to court” and had “refused to listen to our family impact via link.” She has been campaigning to make convicted criminals appear in court. [5] Zara’s aunt said “When we learnt that he had the right not to attend…the murderer gets to have that power… he needed to look at our faces and see how he hadn’t just killed Zara, he had killed a whole family.”[6] These insights present a powerful message: that victims’ families want those convicted to face judgment, to face them and to hear how their actions have impacted the family left behind.

A Victim Personal Statement (VPS), also known as a Victim Impact Statement (VIS), gives a victim and/or a victim’s family the opportunity to express in their own words the impact that the crime has had on them.[7] By giving those convicted the choice to opt out of attending court, it follows that they do not have to hear such statements. As detailed above, victims’ families find this unacceptable. Some would argue it denies them a sense of justice and swings the scales in favour of the convicted by enabling them to escape facing those whom they have caused immeasurable pain. In Sabina’s and Zara’s friends and families’ eyes how can that be fair and just? It’s apparent that their inability to voice their grief and experience to McSweeney and Selamaj has hindered their sense of justice.

Breach of a prisoner’s human right­s

In the alternative, some might say compelling those convicted of serious crimes to attend court constitutes inhuman treatment under human rights law because in practical terms, what would this look like? Compulsion by force? Mr Raab says he would not rule out manhandling a prisoner out of a cell to ensure attendance. He also suggests increasing their sentence if they refuse to attend, but do these measures go too far? Are they not arbitrary and violate a prisoner’s human rights? Could the government perhaps consider less invasive solutions to make attendance mandatory?

Conclusion

The issue of compellability in these circumstances is certainly a delicate and complex one to navigate. It is likely that the vast majority of society would no doubt agree that it seems absolutely fair and just to make those convicted of serious offences attend court to face and hear their victim’s family but the key question to be answered is how and by what means?

Some might argue that the measures proposed by the Justice Secretary treads into murky legal waters and risks breaching human rights law. Others might say his proposals are perfectly reasonable and necessary.

One thing that is clear, the law on this issue requires urgent review.

Shona Love

Pupil Barrister

[1] BBC (2023) ‘Zara Aleena murder: Raab seeks to force convicts to appear at sentencing’ Available at: https://www.bbc.co.uk/news/uk-england-london-64745075 (Accessed: 25 February 2023)

[2] CPS (2022) ‘Defendant’s refusal to attend Court’ Available at: https://www.cps.gov.uk/legal-guidance/defendants-refusal-attend-court-0 (Accessed: 25 February 2023)

[3] The Criminal Procedure Rules 2020, Rule 25.2 Available at: https://www.legislation.gov.uk/uksi/2020/759/rule/25.2/made (Accessed: 25 February 2023)

[4] HMCTS, Cheema-Grubb, Mrs Justice (2022), ‘Rex v Jordan McSweeney, Sentencing Remarks’ Available at: https://www.judiciary.uk/wp-content/uploads/2022/12/R-v-Jordan-McSweeney-141222.pdf (Accessed: 25 February 2023)

[5] BBC (2023) ‘Zara Aleena murder: Raab seeks to force convicts to appear at sentencing’ Available at: https://www.bbc.co.uk/news/uk-england-london-64745075 (Accessed: 25 February 2023)

[6] Ibid

[7] Victim Support,­­ ‘Victim Personal Statements’ Available at: https://www.victimsupport.org.uk/help-and-support/your-rights/victim-personal-statements/ (Accessed: 26 February 2023)