Justice secretary Shabana Mahmood has introduced the new Victims and Courts Bill to address the issue of convicted offenders refusing to attend their sentencing hearing. Proposed provisions allow for an additional two-year prison term to be imposed on those who fail to attend their sentencing hearing, or additional ‘prison sanctions’. This follows high-profile cases where offenders in prison (Lucy Letby, Kyle Clifford and Thomas Cashman (pictured)) have refused to attend court to hear their sentence handed down.
The bill provides that the Crown court may ‘order an offender to attend’ where they are convicted and held on remand prior to sentence. Non-compliance, ‘without reasonable excuse’, can be treated as criminal contempt. Existing laws allow for contempt to be punished with up to two years in custody for adult offenders. The bill also provides for ‘prison sanctions’ to be imposed by the Crown court that align with existing prison disciplinary measures such as the loss of privileges, deductions from earnings and solitary confinement.
The bill authorises prison staff to use ‘reasonable force’ against adult offenders to ensure attendance. Guidance stipulates that the use of such force will be a decision for trained prison staff.
The government has positioned this law as a necessary step to ensure that offenders are made to confront the consequences of their crimes. Victims’ families have long advocated for measures compelling offenders to attend sentencing, arguing that their absence undermines the justice process. While attendance may offer some of these families a sense of voice and inclusivity, there are concerns that the practical implementation of the provision may conflict with broader efforts to improve the efficiency of the justice system.
The bill has been introduced against a backdrop of a criminal justice system in crisis. The Crown court backlog is placing immense pressure on judicial resources. Prisons are dangerously close to capacity. The independent review of sentencing, published last month, proposed ameliorative measures, such as reducing prison time for those on standard determinate sentences, and managing offenders through the community. However, there is already unease about the ability of the Probation Service to deliver these measures without adequate resourcing.
There are also concerns about the potential for additional delays in the court system as a result of the legislation’s requirement that an attendance order is made before a court can consider extra sanctions. This would be made either where there are ‘reasonable grounds to suspect’ that an offender will fail to attend, or where an offender refuses to attend the scheduled hearing. Many offenders in widely reported cases attended their trials but later refused to appear for sentencing. So, even with this legislation in place, victims’ families could still face adjournments and postponed hearings, causing further emotional distress.
The operational feasibility of enforcing attendance also remains uncertain. A Guardian report in 2023 found that 207 trials in England and Wales were ineffective due to a transport failure by private contractors. It is not clear how these contractors, together with prison staff, will be able to resource the additional labour needed to compel court attendance. With injuries to prison officers increasing by 19% in the year to September 2024, the risks associated with forcibly moving reluctant and obstructive violent offenders could put further pressure on both prison staff and private contractors.
Questions have also been raised regarding the wisdom of imposing an additional sentence on someone receiving a life term, the risk of which is unlikely to be a deterrent, while those receiving a whole-life tariff would be wholly unaffected. This would appear to be why the bill allows for the imposition of prison sanctions. These are yet to be explicitly set out. Any long-term impact may be limited, as prison governors retain some discretion over their application.
The new bill also allows for action against an offender who ‘interrupts or misbehaves’ during the hearing. This would already be punishable under existing rules of contempt; the new bill simply introduces prison sanctions. It is questionable whether any such sanction could undo the harm done by an offender who, aware that they are receiving a substantial sentence, decides to inflict further harm on a victim or their family by their behaviour in the dock. Undoubtedly some immediate punishment is justified for disruptive offenders, but in many cases it would be better if the offender were absent.
The purpose of sentencing, as set out in the Sentencing Act 2020, is to punish, to reduce crime, to reform and rehabilitate offenders, to protect the public and to make reparation to persons affected by crimes. While compelling attendance at a hearing may be viewed as a nod towards reparation (or a symbolic gesture in light of recent media coverage), a more laudable priority would be to focus resources on ensuring that courts function efficiently, delivering swift and meaningful justice.
Orla Slattery is a senior lecturer at Nottingham Law School
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