Defendant vs victim rights: A time for change?

As the Lucy Letby trial came to a close and she was found guilty of some of the most heinous of crimes, shouts of 'whose rights are more important?!' and 'drag her there kicking a screaming if you have to!' could be heard in every corner of the country as the prolific serial baby killer refused to face her victims in court for sentencing. But can we, as a ‘civilised’ society, really force people to attend? Shackle them and drag them to face their victims?

Too often we hear of defendants refusing to attend sentencing and subsequently denying grieving families, or victims themselves, the opportunity to confront them and read their impact statements directly to them. Only recently the grieving family and friends of Olivia Pratt-Korbel were denied such an opportunity, with ministers being accused of dragging their feet over laws to force killers into the dock. Both the justice secretary Alex Chalk and the government have pledged to ensure that offenders 'face the music' or face the 'consequences' of not appearing. Rishi Sunak even went as far as 'giving judges the power to order vile offenders to attend their sentencing hearings, with those who refuse facing being forced into the dock or spending longer behind bars.' Though, the Ministry of Justice confirmed shortly after the statement that it will remain for judges to decide whether to order an offender to court.

Today the criminal justice system's intricacies often demand a delicate balance between the rights of the defendant, the needs of victims, and the principles of due process. Such scenarios include those when a defendant in custody adamantly refuses to leave prison for their sentence hearing. In these situations, judges are confronted with complex choices that require careful consideration of justice, fairness, and practicality, which include proceeding in absentia, forcing compulsory attendance, and making video link arrangements. Each of these options bring with them their own legal risks and no choice is ever going to be a perfect all-round solution to these highly emotionally charged events. 

We must remember that defendants, no matter how heinous their crimes, do have certain legal rights, including the right to be present at their own trial and sentencing. These rights are designed to ensure a fair legal process. If a defendant is refusing to attend, their legal team will work to balance their rights with the practicalities of the situation.

Opting to proceed in absentia is a pragmatic solution where the defendant refuses point blank to attend. In such cases, the court relies on evidence from the trial, legal arguments, and victims' statements. While this may expedite the legal process, critics argue that it may infringe upon the defendant's right to a fair trial and could hinder victims' quest for closure through direct confrontation. It is important to remember that the court will take the absence into account when determining the sentence which could lead to lengthier custodial penalties. Though in the Lucy Letby case, who will unlikely ever be released, this would be of little comfort to her victims.

The controversial method of compelling a defendant's attendance via a production order or warrant raises some serious ethical questions. While it guarantees physical presence, it comes with inherent risks. Forcibly transporting a defendant in handcuffs could trigger public outrage and legal disputes, compromising the presumption of innocence and impartiality of the court. However, this method may be more appropriate where the defendant has already been convicted but refuses to attend court for sentencing. Compelling a defendant to attend court by reasonable force and handcuffs can be a complex and contentious action with several potential dangers and implications, not least turning the court room into a circus with raucous behaviour. Worth bearing in mind is that the use of force and restraints could risk an escalation in physical altercations between the defendant and law enforcements officers, leading to legal challenges and further delays in an already overrun justice system facing severe backlogs and a lack of funds.

Finally, making video link arrangements could be seen as a better compromise solution. They can be an innovative way to address an unwilling defendant's refusal to attend a hearing in person. The defendant can participate remotely while minimising disruptions and the need for physical transportation. These types of arrangements can enable the court to uphold due process while reducing some of the risks associated with compelled attendance, but this option is by no means without risk either. The obvious technical challenges aside, ensuring the defendant sits, listens, and participates with the process and hearing will no doubt still bring some of the challenges already described above into the fray.

Navigating the complexities of a defendant's refusal to attend a sentence hearing from custody demands a careful examination of available options and any decision should never be taken lightly. Judges must strive to strike a balance between the rights of the defendant, the needs of victims, and the principles of justice. While compelled attendance poses inherent risks and challenges, innovative solutions like video link arrangements present opportunities to uphold due process while mitigating these risks. Each option's merits and drawbacks must be considered within the unique context of the case at hand, guided by the overarching goal of delivering fair and equitable outcomes within the criminal justice system.

Seema Dosaj is a criminal lawyer and managing partner at Berris Law LLP