Consideration of the Reforms Providing New Powers to Order the Defendant to Attend Sentencing Hearings

On Wednesday 30 August 2023, the Government announced plans to legislate in response to the issue of defendants refusing to attend their sentencing hearings.

This announcement followed a number of high-profile criminal cases, including the case of Lucy Letby where the defendant refused to attend the sentencing hearing.

Prior to the announcement, a number of victims’ families spoke out about the outrage they felt when the defendant refused to attend the sentencing hearing. The families campaigned, urging the Government to implement legislative change.

A key element of the sentencing hearing is the reading of Victim Impact Statements in court. It is unimaginably difficult for victims and families to prepare such a statement and hear this echoed in the courtroom. If the defendant refuses to attend the hearing, they will not hear these important views in court.

These reforms introduce new powers for judges to order offenders to attend sentencing hearings. It is then for the prison to determine what reasonable force can be used when responding to the order. Specific reference to handcuffing has been made. If the defendant resists attending court, despite the order, they could face an additional two years on their sentence; this will only apply in cases where the maximum sentence is life imprisonment.

There has been criticism of the reforms from professionals in the industry who believe this could amount to serious security concerns. Resistant defendants may exhibit behaviours in the courtroom that could be distressing to the victims and families and pose a danger to security staff in the courtroom. The remorse sought by the victims and families can never be guaranteed and so the changes could create a distressing situation for those in attendance rather than forming part of a restorative process.

The MOJ has responded to this concern by highlighting that the order will be made at the judge’s discretion. Where there is a risk of such harm and distress, the judge would not exercise the power as it would not be within the interests of justice.

There are alternative ways to deal with this issue when it is not appropriate for the defendant to attend the courtroom in person. The court’s proceedings could be broadcast to the defendant in the cells. It is also noted that the judge has the power to permit attendance to hearings by live weblink. It is unclear if these options will be utilised in reality, but they are certainly a possibility within the current framework.

There has been further criticism of the new two-year sentencing power. Firstly, this additional sentence is only available to those facing a life sentence. In reality, adding two years to a life sentence with a high minimum term is unlikely to make a significant impact on the defendant. This brings into question how effective this penalty will be.

The new penalty creates inconsistency within the current system. In other circumstances where a defendant tries to avoid justice, there is no such penalty. Also, in relation to other convictions that do not warrant a life sentence, but still have devastating effects on victims and their families, this penalty is not available.

In light of the reforms, we have considered the role of defence lawyers where their client may be facing such an order. The key considerations are as follows:

• Ensure the client is fully informed and understands what the sentencing hearing entails.
• Explain the effects and consequences of such an order.
• Explain the potential penalties.
• Advise on any other arrangements that may be available if attendance is deemed necessary (such as requesting a remote link) and then consider making the appropriate applications for such arrangements.
• Ascertain any information from the prosecution with regard to their position and intentions.
• Ascertain any information from the applicable prison services as to what force is likely to be used and if a handcuffing application would be sought.
• Consider the circumstances and reasoning behind the client’s refusal to attend.
• Consider any necessary representations to be made before the judge when exercising their discretion to make such an order.

For more information, please contact:

Melissa Ingram – Solicitor Apprentice

Email: MJIngram@keoghs.co.uk