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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