5th April 2023
Let us start with the old adage: justice not only has to be done, justice must also be seen to be done.
The phrase is sometimes attributed to this very short judgment from 1923, which contained:
“…justice should not only be done, but should manifestly and undoubtedly be seen to be done”.
The saying reminds us that justice is not only about process – it is also about performance.
An adjudication by a court not only resolves a dispute between parties (even if one of the parties is a prosecuting authority) but is also a social fact that, in turn, goes to whether there is justice in a community as a whole.
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In the last week there has been two striking examples of the performative element of justice.
One was in a Manhattan courtroom, where one defendant was photographed with his attorneys in a courtroom, but he was spared the “perp walk” and other humiliations.
Another was in an English courtroom, where the convicted murderer refused to come up from the cells to attend sentencing.
The Secret Barrister has written well and convincingly about the latter incident.
As the Secret Barrister indicates, this may be a problem which does not have an easy solution, despite the political and media clamour that something must be done.
There is no obvious way that a defendant can be coerced into respectfully attending their sentencing hearing.
Convicts facing life sentences have no real concerns about additional years.
And there is nothing straightforward that will prevent a prisoner gurning and grinning throughout a sentencing, so as to make the victims and their families yet more uncomfortable.
A judge ordering such a distracting and disruptive defendant to be taken back down to the cells defeats the purpose of forcing them to attend the sentencing, if you think about it.
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There is perhaps a deeper and more difficult question here.
At what point does the performative element of sentencing become a thing in itself, rather than the means be which we can see that justice is being carried out?
The history of punishment is full of examples where the PDD was geared to humiliate the convict as an objective by itself.
But.
This sometimes backfired.
For example, those being taken by cart to Tyburn to be hanged often became part of a carnivalesque spectacle.
There are even tales of prisoners playing up to the cheering crowds.
And this is the problem about justice as theatre: not everyone solemnly plays the solemn parts to which they have been solemnly allotted.
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There has to be a balance between justice as a process and justice as a performance.
Surviving victims and their families should be heard, and they should have a say.
They should see justice being done, as it is done.
This is fundamental.
But those who promise surviving victims and their families that defendants and convicts can be coerced into some performance of contrition or seriousness may be falsely raising the hopes of those surviving victims and their families.
And it may be better not to make such irresponsible promises.
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It should always be remembered that the sentence is the punishment.
By seeking to add performative elements to the process of justice, in addition to any sentence, there is a risk that the performance – the PDD – becomes an end in and of itself.
And if so, then the actual punishment – the sentence – becomes secondary, an afterthought.
The PDD becomes the thing.
And this would be a mistake.
For justice should not only has to be seen to be done, justice has to be done.
The old adage works the other way round too.
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A possible solution would be to pipe the court proceedings into the prisoner’s holding cell. The culprit would then be forced to actively block the victim statements and the judge’s peroration, which would require some minor effort.
Clearly some other deterrent/incentive is necessary. Ritual flogging of an uncooperative defendant? Prisoner exchange with Thailand or whatever other country is deemed to have the worst jail conditions?
To be clear, these are not serious proposals. There is no law or power that can FORCE repentance, or even respect. That’s it!
Lord Hewart’s comments are fascinating. I had always understood the principle that justice must be seen to be done to mean not that justice had to serve the perception of what is just – which is Hewart CJ’s point, and upon which you appear to rely here – but that it is an important part of justice that it be carried out scrutably.
On this second reading, a secret court’s verdict cannot be just even if (by whatever standard you want to apply) it is the “correct” one, and this simply because it is secret. Justice not seen is not justice after all.
I suspect it’s a tad more nuanced than even this—perhaps more a case of:
‘…it is an important part of justice that it not be carried out in a way that could be perceived as potentially open to the possibility of perception of ‘irregularity’ [to use the Lord Hewart’s terminology]’?
I think involving victims more has already backfired. It has encouraged the mistaken belief that criminal trials are about vengeance on behalf of the victim, about justice on behalf of the victim, when in fact it’s about society getting its pound of flesh. We, society, have given ourselves laws for the good governance of the King’s Peace, and he the victim stands accused of breaching that Peace.
By introducing things like victim personal statements we have encouraged victims to think that the measure of the success of the trial is whether their personal sense of justice is satisfied. And that’s how we ended up discussing the question of the original post above.
Let the defendant hear the verdict or not, as he pleases. The defendant may well sincerely believe he is innocent even as he is being sentenced. He may well be innocent. It doesn’t matter, he’s going to be locked up regardless. (Or sent to do community service, or whatever.) Let’s not add insult to injury by requiring the defendant to fake remorse.
Indeed.
Serving one’s sentence is meant to extinguish a defendant’s debt towards society. The feelings of families or the gutter press should play no role in the process. Once you start allowing for that, you end up with justice ministers playing to the gallery or worse. Typically someone starts invoking flogging…
My understanding of “justice should be seen to be done” was as a performative requirement on the justice system, not defendants; an obligation to convey an image of fairness, impartiality, due process. Which is the opposite of imposing ancillary obligations beyond the sentence.
Defendants might not just believe they are innocent. Imagine postmasters wrongly convicted on the basis of the Post Office’s Horizon system being dragged back to court.
Perhaps a lot less showing society cares. Just a quiet gentle process with an individual oubliette at the end.
Nothing needs to be done. D has the opportunity to attend. If declined, just pass the sentence.
In this case it was reported that he heard CPS staff bragging about the outcome. Gave that as a reason for refusing to be in court. If celebration is needed then keep it to the office!