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The court system is inherently about performance: about justice being seen to be done.
And the legal system, more generally, is inherently about coercion: about people being forced to do things they otherwise would not do.
So taking these two things together, performative justice and coercion, both of which are deeply fixed in our culture, it is difficult for many to understand why a convicted defendant cannot simply be coerced to attend a courtroom to hear the sentencing remarks of the judge.
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The many have a point: it does seem an odd gap in the practice of criminal law, a lacuna in the world of courts and coercive force.
But.
There are genuine practical problems about having this particular form of coercion.
What happens if the defendant refuses to perform their allotted role and disrupts the court? Ordering back to their cells rather defeats the point of obliging them to be present.
And how do you meaningfully punish someone for non-compliance when they already face a life sentence?
There are also important points about placing at risk those court workers who would be expected to enforce the requirement against an unwilling defendant.
Like many things in criminal justice, and in the law generally, there are not easy answers to what seem easy questions: no deft solution to those who clamour that something must be done.
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There is, however, perhaps another way of thinking about this.
And this is to focus on the sentence of the court being the actual punishment.
That sentence may include incarceration and other things.
But the sentence is the thing.
It is the sentence which provides (or is supposed to provide) the output of justice – the sanction which the court holds to be the proportionate and, well, just response to the offence that has been found to have been committed.
Anything in addition to the sentence, even things which seem must be done, is separate from the sentence.
We should be wary about adding performative elements in addition to the sentence handed down by the court – especially elements intended to show further retribution.
Of course, part of a criminal sentence often serves the purpose of retribution.
But even in the most extreme cases, the purpose of retribution has to be balanced by other elements by a court.
The further we go from the sentence being the punishment, because of a clamour for there to be even more dramatic performative elements, the less the sentence itself can be regarded as the product of the justice system.
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Perhaps attendance orders for certain convicted defendants can be built into the court process, or even be made part formally of the sentence.
After all, as said above, there is already plenty of performative and coercive elements in criminal justice system. One more will not make that much difference.
But until such orders are properly integrated into the process, the concern should be that such elements are not made substitutes and supplements for the actual sentence.
The sentence is the thing, and it should always be the thing.
And even when the scales of justice are lopsided with the weight of the most awful of crimes, they nonetheless remain scales.
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I agree with all your points But do have enormous sympathy for the babies’ parents not being able to have their say straight to the defendant’s face. I would certainly want to.
In regard to your identification of the performative elements, I found the televising of the sentencing, and also of the arrest, distasteful. Surely, the sentence is what matters, rather than the “baying mob” applauding or otherwise.
The Victim Impact Statements, which many commentators have used as the justification for making Letby attend, included several points which strongly suggested that the victims didn’t want her there and didn’t ever want to look at her again.
No-one has suggested that forced attendance be at the discretion of the victims; it seems to be more at the insistence of readers of certain newspapers.
I agree. The point about forcing them to attend sentencing is about retribution and public humiliation and I am not in support of that. It is not too dissimilar, in that respect, from public hangings or putting someone’s head on a post in a public place (and there will be some who would be in favour of that too). Lucy Letby will presumably receive the appropriate sentence for her crimes, according to the law (assuming the jury was correct in their verdict) and that is enough for me.
I think the performance aspect of justice is mostly barristers getting high on their own supply. Even now that video of sentencing remarks is slowly starting to be released, very few people have any idea what a trial looks like. Their understanding is mostly based on (American) TV series. The Law Lords could go to war with Boris Johnson and then just take the tube home, because nobody knows or cares what they look like, and very few people bothered to look at the video footage of the Supreme Court doing its work.
So yes, if the defendant doesn’t want to hear the sentence read, send them an email. It doesn’t matter. All that matters is the sentence they actually get. (Which is, likewise, published by being put on the internet. Reading it out in the courtroom without the defendant present is mostly just a massive waste of time.)
It’s understandable that victims want to see perpetrators in court – I’m less sure that the rest of us (and that includes politicians) have the same justification.
I see the PM and LOTO are saying – altogether now! – something must be done, but clearly haven’t thought things through.
I think, in theory, I would like to see perpetrators face their victims but the risks feel too great.
I think it’s less about hearing the sentencing – although that’s important – and more about hearing the impact on the victims and their families.
But as the perpetrators have already shown a willingness to damage people, I also recognise the risk that they may get pleasure from hearing that impact.
Sadly, it feels like something we can never resolve because people don’t always behave the way we would like them to.
More and more of our politics seems to be concerned with circuses and less and less with bread. What does it say of us as a nation? Nothing good.
I continue to be drawn to The Madness of Crowds – but do we want to continue to live in such an atmosphere?
There’s something final about a full-life sentence being handed down. The convicted person will never appear in a public setting again. It has an aspect that is almost as final as a funeral and aside of the importance of the offender hearing the impact statements and the sentence, I can’t help feeling the finality should somehow be marked. As, I guess, it sometimes is, in an ugly way, with crude tabloid photo-grabbing when the prison transport leaves the court premises. That turns the offender into a celebrity, which they don’t deserve to be.
It’s all the more poignant in this case because the victims and their families (rightly) can’t be named .. and so can’t be honoured as, for instance, Jacinda Arden made a point of naming the victims of the Christchurch shootings, not their killer.
But you’ve laid out clearly the obstacles to an attendance order being enforced and I haven’t a clue how they could be overcome.
I’m left with anger (not least at hospital executives) and crushing sadness, and no satisfactory way to deal with either. And dealing with those feelings is, I know, not the business of the justice system.
Given the way the report of the Daniel Morgan Inquiry slid off the Met like water off a duck’s back, it seems unlikely that the proposed inquiry in this case will provide any sort of closure.
Maybe the hope of closure is something we should let go, rather than hoping for a moment of drama to provide the illusion of it.
Most offensive about this case is that it took 10 months or so to find Letby guilty. Had it been so clear cut that you can send someone to prison for their forever then it should have been decided much faster – a day perhaps? The suffering for the relatives of the victims must have been tortuous. I did not follow the trial in any detail but such a long process is likely open to appeal on several grounds and so the torture will recommence.
Letby is already punished extremely. There are many ways in which she could avoid appearing in court for the sentencing even after laws are enacted. Say she claims sickness. Then the court delays again – the torture continues for the victims.
Concerned people with influence should focus in on why it has taken so so long to send Letby to gaol, and why it took so long to arrest her. Having public inquiries and reviews now just extends the punishment for the survivors. The legal system, such as it is, should not need an inquiry to improve. Nor do the victims need Letby in court for their eulogies to resonate.
There is a public washing of hands by our responsible authorities which is repulsive.
If we’re going to allow everybody a defence, they will need to have the right to challenge every bit of evidence – which means that enough of it needs to be presented to get a conviction.
In this case, there were a number of separate murders and attempted murders – so each one would have to be fully presented.
(We may need to roll out the speech from ‘A Man For All Seasons’ about the devil.)
I think the question about the length of cases and the amount of evidence is a different one – although it may feel like lawyers creating work, if we are to convict ‘beyond reasonable doubt’, the case needs to be comprehensive.
Maybe DAG has a view on whether there are ways that trial could be shortened without losing that level of detail.
And as well as the families, we should also consider the jurors as they have certainly done incredible service.
This is the most offensive thing? You think a trial involving twenty one seperate charges should take about a day and that if it wasn’t clear cut she shouldn’t have been given such an extreme sentence?
This was an extremely complex trial. Proving she was guilty beyond reasonable doubt was never going to be a clear cut and quick process. The jury were remarkably quick given the number of charges (roughly one day’s deliberation for each) and the complexity of the evidence.
I don’t think an inquiry will extend the agony for the relatives. Some at least seem to be joining the calls for the truth to come out about why it took so long for the Hospital Trust to act and call in the police.
Trials of this sort are a) rare and b) extremely complex. A lot of the evidence (from what I can glean from press reports and from knowledge of similar cases related to nurses convicted murder by insulin poisoning) is circumstantial. There’s a “pattern” of deaths linked by the nurse being on duty. Just convincing a jury that such a pattern is not one which could happen by “chance” takes many painstaking days or weeks of evidence.
There was other evidence in this case but I don’t think the verdict(s) were obvious – note that the jury found her not guilty on two attempted murders and could not agree on a number of others.
And when one takes into account that the Prosecution bears the considerable burden of convincing a jury beyond a reasonable doubt it was never going to be concluded in a month never mind a day.
In response to some of you above, I am one of the least baying people I know. Neither did I watch the trial on television; I never watch news on television because it is too manipulative. I knew a girl who was sexually abused by a 70-year-old man over a number of years. She felt that facing him with her Victim Impact Statement was what she wanted and needed and it tied up her suffering satisfactorily.
Maybe someone should ask the parents of Lee Rigby what they think of having his murderers present at sentencing?
https://amp.theguardian.com/uk-news/2014/feb/26/lee-rigby-killers-michael-adebolajo-adebowale-whole-life-ruling
There’s an element of the big crowd at the public hanging about the demands for the defendant to be there in court to hear the consequences, admonishment and punishment. The true test should surely be whether the attendance of the defendant is more likely to reduce the chances of re-offending
It is important that justice should be seen to be done, but more important that justice should actually be *done*. Neither necessarily requires the presence of the defendant in court, and the CPS has lots of guidance about how to proceed when a defendant refuses to attend court. https://www.cps.gov.uk/legal-guidance/defendants-refusal-attend-court-0
The victim impact statement, or more properly victim personal statement, was introduced to allow victims of crime to explain to the court – that is, to the sentencing judge – in their own words how the criminal’s actions affected them. The statement is taken into account by the judge in passing sentence, but (unlike some jurisdictions) it does not have a direct and instrumental impact on the sentencing. The evidence is, I think, that this sort of statement makes relatively little difference to sentence, but most people who make a victim personal statement feel it is a positive thing to have done.
However it is perceived, the victim personal statement it is not primarily intended as a way for victims to directly address the defendant immediately after they have been convicted. Harsh as it may seem, the criminal justice system is not primarily about providing catharsis to victims or bystanders: it is about the state using its coercive powers to identify, convict and sentence perpetrators of criminal acts, on behalf of the wider public.
I am far from convinced that the more performative or theatrical elements of the court system help very much with the process of “doing justice”, any more than the more performative or theatrical elements of parliamentary politics help very much with the process of political decision-making.
This is a horrible horrible horrible case, and it is clear there will be repercussions for the affected families for years to come. I reflected earlier today that one of my twins (now grown up) spent some time in neonatal special care. Thank god, the sort of person who would deliberately harm a newborn child is rare. This woman will have plenty of time to reflect on her life choices. As with Shipman, I think we need a full judge-led statutory public inquiry to get to the bottom of what happened – I fear there are more victims who have not been yet been identified – and what if anything needs to change. Perhaps lessons have already been learned by rolling out “Freedom to Speak Up” guardians, but perhaps there is more to learn.
I do not think the Shipman inquiry is a good example. It did not provide any conclusions that would help identify a clever psychopath who was able legally to go about armed with lethal drugs.
In the case of Shipman the evidence that would have been suggestive but not conclusive was
(a) the large amount of opioid drugs that Shipman took from pharmacies. Was the amount significantly or detectably over the normal?
(b) the large number of elderly patients dying when he was present or soon after he had visited. Again, the statistics matter: were the numbers significantly more than could be expected for a GP with a practice with the given demographics?
(c) his unwillingness to have medical students attending his practice.
How the General Medical Council could be expected to detect any of those factors, and weigh them up to mean that Shipman should be investigated by the Council, is a mystery. The report made recommendations about the coroner and pharmacist system relevant to (a) and (b) above. And yet the judge in the chair criticised the GMC, and the report concluded that the GMC “was an organisation designed to look after the interests of doctors, not patients”. Maybe someone can show me to the evidence in the report to justify that statement.
Also, the Shipman inquiry took a very long time. It was expected to produce its report by September 2000: the final part of the report was released in January 2005.
Declaration of interest: at the time I was working in Manchester. I also knew members of the GMC but have never worked with the Council.
I agree with DAG’s point. On the face of it the defendant not being in court for witness statements and sentencing seems an afront but forcing them to attend, or to hear the proceedings in their cell raises serious practical difficulties.
Letby will be in prison for the rest of her life and she can’t avoid that.
Whole life sentences are problematic in that there is no point in a murderer showing remorse or good behaviour. It’s very much about satisfying public feelings of outrage over their crime(s).
I was not in favour of victim impact statements being introduced and I still don’t think they are a good idea. They don’t affect the verdict and they shouldn’t affect the sentence. I understand Alison’s point about it potentially helping a victim but in the cases where the victim is dead that can’t happen. Then it becomes about the relatives’ understandable grief.
The MOJ is now awash with 2 way zoom/teams/whatever suites, mostly now disused thanks to the absurdity of investing who knows how much money then (now) expecting us to travel to venues in person.
These would enable prisoners to be forced to listen and the Courts to see them. Strap/handcuff them to a chair if necessary. It’s not rocket science.
In what way would rights be infringedby having to watch the end of their own trial?
“..These would enable prisoners to be forced to listen and the Courts to see them. Strap/handcuff them to a chair if necessary. It’s not rocket science…”
I think this rather underpins the DAG’s point that this could/will be viewed as coercive.
This is what was written:
“And the legal system, more generally, is inherently about coercion: about people being forced to do things they otherwise would not do…”
The word coercion is interesting – in the example you provide Fiona, it is a case of physical coercion. As used by the original author it could also imply a level of victimhood for all participants of the judicial system – this might be my misunderstanding of the term but I don’t see that the police, prosecutor’s or tragic families of the murdered children being coerced to go to court, but rather to see that justice is done & hopefully never to be repeated.
You make good points as normal, especially about the potential for disruption on the part of unruly defendants and the lack of real sanction on those already facing substantial prison terms.
But.
The Letby case is exceptional in that very few convicts (and almost none of them female) are handed consecutive whole life terms as she has been, so that in most cases, there is a potent sanction available for non-compliance in adding to the prison term.
And.
Compelling criminals to be present for victims personal statements is not merely performative. It is also part of the punishment for those of psychopathic nature who do not wish to be confronted with the human impact of their crimes. Were it otherwise, why would Letby have been so reluctant to be present in court to hear verdict and sentence?
Finally.
It is my understanding that the judge actually already has powers to compel defendants to appear in court, not exercised by Mr. Justice Goss in this case for the entirely sensible reasons you already discuss. So in that respect, bringing forward additional judicial powers would indeed be ‘performative’.
I feel the majesty of the law is better preserved by not caring if the sentencee is present or not. Put simply – we don’t care about you any more.
Before there was television or radio or widely read newspapers the majesty of the law seems to have had its interests served by certain set forms of words and the physical design of court-rooms in order to lend emotional weight as well as cold intellect to the proceedings. Emotional impact in the legitimate theatre can take various forms and not necessarily those of melodrama or grand guignol. Trial as theatre is capable of serving the ends of justice without diminishing its dignity.
Arising from the coverage of the Letby case, there was broadcast an interview with a man whose daughter, in an earlier case, was murdered. He wrote to the judge asking that his views be considered when sentence was being prepared. He specifically didn’t want to address the court. Neither did he particularly want his words to be spoken there. Whether those victims, not of a crime directly, but of its repercussions should exercise any influence at all remains an open question in my mind, but that father’s approach seems just as effective in serving the interests of justice as those statements spoken by relatives.
As regards broadcasting of sentencings, this has been a revelation to this ignorant listener at least. Reporters’ accounts of judges’ remarks are usually constrained by demands of space. Interestingly, the sound of a judge’s voice adds a tinge of emotion to the dry words we see on the printed page. While that will inevitably colour the mood of listeners present in court, I am not totally convinced that it benefits the general public’s perception of our system as impassive and objective, blind to all but the evidence presented. (Or has that always been a carefully cultivated delusion?)
Also, I see no useful purpose in broadcasting vision as well as sound on such occasions, unless entertainment is to be shoved to the front of Lord Reith’s list, taking precedence over information and education.
These were the kind of arguments put against televising parliament.
I’m of the opinion that justice must be seen to be done, and these days that means video as well. Courtroom video increases understanding. Seeing the faces of those involved is not to do with entertainment, nor is it entertaining.
That would however end the employment of courtroom artists. The sooner the better. The sketches of Wayne Rooney giving evidence in the Wagatha Christie trial were certainly entertaining, but utterly uninformative.
Some time in the past 20 years I heard report of research which had demonstrated that those who can only listen to a speech are less swayed by emotion than those also watch the performance. The classic demonstration of this was the Kennedy-Nixon debate, where the opinion polls showed that a majority of those who only listened reckoned Nixon had been the more persuasive.
A lot of the comments already made are very sensible.
The most vital point, which is worth underlining is this: In a jurisdiction under the ‘rule of law’, justice is not about making the victim feel better – there have to be other ways of doing that. It is about protecting society from a repeat of the crimes committed, in part by preventing the perpetrator from repeating those crimes and in part by deterring others from doing so.
If Letby had been in court, the victims (and I accept that the families are in a real sense victims in this case) might have felt better for a short time. But what if Letby had simply stuck her fingers in her ears shouting ‘La La La’ the whole time? She would have to be physically restrained which would come perilously close to cruel and inhuman treatment. In the end, it is only Letby’s conscience (wherever that may be) that can ‘punish’ her in an appropriate way. The courts and prison system can make sure that she cannot commit such crimes again, or even enjoy the privileges and freedoms we take for granted. They cannot heal the wounds she has caused.
There’s another aspect besides retribution. The victims want the convicted to hear their victim’s statements. Or they think they do. If the convict refuses to cooperate, by being disruptive, it would just make that part even worse.
Is being forced to hear the judgement handed down and the victim’s statements retribution? I don’t think so. It’s something else.
I think ritual comes into it. Humans need the pulling together of various strands. Funerals for example, there is no actual necessity for a funeral but we usually like to say goodbye. There is no need to bury one’s dead pet in the garden rather than put the body in household waste.
However, I take the points about coercion.
I also take Kevin’s point about murdered victims being dead but, as David Sweet says above, the families are victims too. There is something awful about an end that doesn’t feel like an end even though the end is of course imprisonment in this case.
An interesting article very well debated by your followers David. I can see points both for and against coercion of defendants being present for sentencing.
However, the case has raised a further issue in that some are now clamouring for the Trust administrators to be investigated for Corporate Manslaughter by their alleged failure to properly respond to the concerns of the consultants. Perhaps you might like to open the debate.
Can the Trust administrators ever be convicted of Corporate Manslaughter when someone has already been convicted of murder?
If Letby had been acquitted, would a Corporate Manslaughter charge against administrators stand up evidentially?
Had the consultants not raised their concerns, would they be convicted of manslaughter?
What this case makes clear is that there needs to be an independent investigating body when dealing with both internal and external NHS complaints. The body needs to be at arms length from NHS Trusts, regionally established with the ability to step in at an early stage (unlike the Ombudsman). I would go so far as to say in should not even be on NHS premises. We might then have an investigative process which gets to the root cause of issues.
It’s interesting to note that Letby was found guilty of murdering her youngest victim who was born premature at just 23 weeks gestation. This is under the legal abortion limit, so a mother could have had an abortion at 23 weeks but would not be guilty of murder.
Am approving this comment for publication with hesitation, and I will not approve any replies to this comment which are inflammatory or are off-topic. This is a post about a particular murder case, and it is not about abortion.
Under the currently applicable legal system, live birth, whether by natural or artificial means (e.g. Caesarean section) confers certain rights not granted to fœtuses. It is a watershed or Rubicon moment used for legal status tried and tested over centuries.
The period of time you mention is strictly not relevant to the case.
It is interesting, yes. But it’s not paradoxical. The law recognizes that the point at which life begins is a metaphysical question which can never be answered. The compromise is that before N number of weeks, the pregnant woman may choose to terminate the pregnancy without a compelling reason.
On the other hand, when a mother intends to carry a pregnancy to full term, the unborn child gains legal personhood if it is terminated against her wishes. The US Supreme Court decision which overturned Roe v Wade glosses over this distinction in the historical record, not to mention that in the middle ages expectant mothers had no agency.