Refusal to Attend Sentencing

Dr Gabrielle Watson

In August 2023, former neonatal nurse, Lucy Letby, refused to attend her own sentencing hearing for the murders of seven babies and the attempted murders of another six entrusted to her care. Having also refused to attend via video link, she remained in the cells below Manchester Crown Court as bereaved family members delivered Victim Personal Statements and the judge passed a Whole Life Order in her absence.

In April 2023, Thomas Cashman exploited the same procedural rule by refusing to attend his own sentencing hearing. He received a sentence of life imprisonment with a minimum term of 42 years for the fatal shooting of nine-year-old Olivia Pratt-Korbel in her own home. Like Letby, he too travelled to Manchester Crown Court but declined to leave his cell, claiming that he had been provoked by court officials.

In December 2022, the family of Zara Allena, a young woman who was sexually attacked and murdered as she walked home, said her killer should have faced them in court so they could look him in the eye when being sentenced. Jordan McSweeney was absent from the dock as the judge passed a life sentence with a minimum term of 38 years. For the victim’s family, McSweeney had taken control of events, and his refusal to attend rendered the legal process incomplete.

In July 2022, Koci Selamaj was sentenced to life imprisonment with a minimum term of 36 years for the sexually motivated murder of Sabina Nessa in a London park. Selamaj refused to attend sentencing at the Old Bailey and further declined the court’s invitation to attend via video link from his prison cell. For Sabina’s family, his absence from the dock was deeply disrespectful, a further leveraging of power over them, and a final insult of the highest order.

Defendant refusal to attend sentencing has become more common, but it is not an entirely new phenomenon.1 Following each high-profile refusal, we witness a resurgence in public and political opposition to it. Campaign groups, news media, and parliamentarians have called for an urgent review of the law, voicing concern for – even anger at – a procedural rule which permits convicted offenders to opt out. For some, the presence of the offender in the dock as the sentence is handed down is equated with a sense of natural justice: the heinous nature of their crimes should mean that reluctant defendants be restrained, handcuffed, and brought to court using brute force.2 Yet such proposals push at the very limits of what we understand a dignified sentencing exercise to be.

Except for the sentencing remarks made by the judges in McSweeney (‘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’),3 and in Selamaj (‘however cowardly [his] refusals may be, I have no power to force him’),4 judicial commentary on the rule has been muted. Sentencers can do little more than assert the law, deliver their remarks as if the defendant were present to hear them, and direct that copies of the Victim Personal Statements and sentencing remarks are made available to them in writing.

1. The law

Last year, the Crown Prosecution Service published guidance on defendant refusal to attend court. The guidance varies according to court and point in the proceedings, with dedicated guidance for non-attendance at Crown Court for the plea and trial preparation hearing through to trial and sentencing.5 There are typically three moments when a refusal may arise. A defendant may:

– Refuse to leave the cell at prison, or
– Refuse to leave the prison to attend court, or

– Refuse to leave their cell when they have arrived at court.

The key provision is Criminal Procedure Rule 25.2(1)(c). Prosecutors should ensure that the court is aware of the rule, which states that the court must not sentence the defendant to imprisonment or detention unless:

1. the defendant has a legal representative,

2. the defendant has been sentenced to imprisonment or detention on a previous occasion in the United Kingdom, or
3. the defendant could have been represented under legal aid but is not because section 226(7), (8) Sentencing Act 2020 applies to them.

There may be multiple and overlapping reasons for non-attendance. The reasons in each case should be ascertained as far as possible and further investigations made, for instance, where a prisoner has claimed or proven ill-health. Some offenders may choose to stay away as part of a broader campaign of maintaining innocence.
In addition to ensuring appropriate enquiries are made about why the defendant is refusing to attend, prosecutors should assist the court in communicating the legal position to the prison in respect of when and why the defendant’s attendance at court is expected. It is essential that the defendant makes an informed decision: the defendant must know, or be indifferent to, the consequences of non-attendance.

2.Prospects for reform
Prime Minister, Rishi Sunak, and Secretary of State for Justice, Alex Chalk, are said to be expediting their plans to introduce legislation ‘forcing’ convicted offenders to attend sentencing. Such plans are sweeping in ambition but so far light on detail. We can anticipate further developments by the end of the year. The new law is to be included in the King’s Speech on 7th November and laid in Parliament by December.6The government would be well advised to proceed with caution. Politicians have been quick to endorse a rule change in principle but risk inflating public expectations of what courts and prisons can – and should – realistically accomplish. Any rule change must be carefully drafted, entailing a deeper understanding of the sentencing process, how it operates, and what it is for.

Reasonable force
Politicians have been quick to adopt the language of ‘force’ but must be careful not to underestimate the practical difficulties around restraining and compelling a person to attend court, including potential human rights violations.Aside from bringing the defendant before the court in handcuffs, even the use of reasonable physical force to compel attendance would be fraught with difficulty. It would remain a decision for the prison as to whether reasonable force is to be used by its officers, considering all the circumstances, including the temperament of the defendant at the point at which force is to be applied. While having close regard to the overall fairness of the process, there is a balance to be struck between ensuring the safety of those responsible for containing an offender, and effectively dragging the offender to the dock for public and judicial condemnation at whatever cost.

If a courtroom on the solemn occasion of sentencing were to permit the handling of defendants in this way, the hearing may descend into a public spectacle altogether more distressing for those directly affected. Would defendants be expected to remain in court however they behave? On what grounds may a judge remove them for disrupting the proceedings or provoking those present? The proposal – which currently enjoys significant cross-party support – sits uncomfortably within a criminal justice system otherwise committed to proportionality.

Sentence aggravation
Another proposal is for the judge to draw an adverse inference from absence in calibrating the sentence. The first option for non-appearance would be a loss of time spent on remand, which would usually count towards the sentence imposed. The second would be to treat absence as an aggravating factor and extend the length of the custodial sentence. McSweeney’s defence team secured a five-year reduction for his guilty plea.7 For his late guilty plea, Selemaj received a three-year reduction.8 These ‘discounts’ could become a privilege only for those who attend.Yet what Letby, Cashman, McSweeney, and Selamaj have in common is that each were facing conviction for murder, for which there is a mandatory life sentence. When a judge passes a life sentence, they must specify a ‘minimum term’ which provides the earliest date on which a prisoner can apply for parole.9

The starting points for adults convicted of murder range between a minimum term of 15 years and whole life, and it is far from guaranteed that a life prisoner will be deemed safe for release at the expiry of the term. A moderate recalibration of sentence would have little if any effect on offenders refusing to attend. In Letby’s case, the threat of a lengthier sentence would be entirely pointless: the sentence of life without parole is as severe as the law of England and Wales will allow.

A less invasive possibility would be to facilitate an offender’s attendance by means of live video link to their cell, while making no assumptions about how, if at all, the offender will respond. Sir Robert Buckland, former Secretary of State for Justice, has advocated the live link as the most pragmatic solution.10

Section 51 of the Criminal Justice Act 2003 permits live audio or video links during sentencing proceedings. While the technology is widely available, the only constraint would be financial. Every court and prison would require a designated cell, fully equipped with live streaming capabilities: a substantial investment for a small minority who elect not to attend sentencing.

3. Sentencing in absentia


How should the sentencing court respond – if at all – to uncooperative offenders when they have reached the limits of lawful punishment? There is a risk that the government’s commitment to reform may fall flat. The first proposal would radically undermine an otherwise civilised court process, the second would be largely if not wholly inconsequential, and the third may be shelved on financial grounds. Perhaps the best that could be achieved is a strong presumption, written into law, in favour of attendance in person. Yet it would likely be deemed superficial, offering no consolation to victims seeking catharsis from the process itself.

No doubt the issue of compellability is delicate and complex – not only in legal but also in moral terms. There may be no satisfactory solution, in which case it will be the government’s duty to recognise and explain to the public why that is so. Let us not forget that the punishment is the sentence itself – the deprivation of liberty – not the hearing at which it is announced.

UPDATE: On 30th August 2023, the Ministry of Justice issued a press release committing to new discretionary powers for judges to order attendance at sentencing. The proposed reforms will permit prison officers to use ‘reasonable force’ to compel attendance in the dock or via video link, while the judge may extend the custodial sentence by two years for offenders who resist:

1 The Guardian, ‘Levi Bellfield gets life without parole’ (24th June 2011)

2 The Telegraph, ‘Law that forces killers to attend sentencing will be in King’s speech’ (19th August 2023)

3 Mrs Justice Cheema-Grubb, R v Jordan McSweeney sentencing remarks (December 2022)

4 Mr Justice Sweeney, R v Koci Selamaj sentencing remarks (July 2022)

5 Crown Prosecution Service, Legal Guidance: Defendants’ Refusal to Attend Court (2022)

6 The Telegraph (n 2).

7 McSweeney (n 3) para 38.

8 Selamaj (n 4) 5.

9 Sentencing Act 2020, Schedule 21.

10 The Guardian, ‘Former Minister suggests broadcasting Lucy Letby’s sentencing to her cell’ (20th August 2023)