Something must be done about the problem of convicted criminals refusing to attend court for their sentencing hearings.

So both main political parties are agreed. And so, according to polls, is the public.

The issue has returned to the fore this week with the refusal of Thomas Cashman to attend his sentence following his conviction for the murder of 9-year-old Olivia Pratt-Korbel.

It follows recent similar cases, including those of Koci Selemaj, who murdered Sabina Nessa, and Jordan McSweeney, who murdered Zara Aleena, each of whom refused to attend his sentence in April 2022 and February 2023 respectively.

The anger of the families of the victims, and the public, needs little explanation. The refusal of such men to face public justice is, as Mrs Justice Cheema-Grubb rightly observed when sentencing McSweeney in his absence, “spineless”.

Not only is the defendant spared having to listen to the judge’s sentencing remarks in full view of the public and attending media, but victims of crime, or their families in cases of homicide, have a right to read out in court a Victim Personal Statement, detailing – often in harrowing terms – the impact of the offence. A defendant refusing to leave his cell to bear witness to the effects of his actions is both a final insult and a further leveraging of power over those whose lives they have already devastated.

To this sincere and genuine anguish, politicians have responded with their familiar rallying cry: Something Must Be Done.

Labour got things moving last year with Shadow Justice Secretary Steve Reed pledging to The Sun that judges would be given the power “to force offenders to literally face justice in court.” This somewhat amorphous aspiration was firmed up in an appeal to the last refuge of the intellectually dispossessed: a promise of Tougher Sentences. Labour know as well as the Conservatives that if you have nothing of substance to offer to a social issue, you can always shout about Tougher Sentences. Often the mere suggestion is enough for incurious journalists to stop asking inconvenient questions, such as “how?” and “why?” Naturally Labour’s semi-policy has now found fuller form as the orphaned brainchild of Justice Secretary Dominic Raab. Those who refuse to attend their sentence hearings can expect an (as-yet undefined) extension to their custodial sentence.

But the obvious point that neither party has shown any willingness to address is that in almost all of the high profile cases cited, we are dealing with people convicted of murder. And anybody convicted of murder receives a mandatory life sentence. When a judge passes a life sentence, they must specify a “minimum term”, using a framework set down by Parliament, which provides the earliest date on which a life prisoner can apply for parole. For an adult, that minimum term can be anything between fifteen years and whole life (i.e. life without parole), and it is far from guaranteed that a life prisoner will be deemed safe to be released at the expiry of the minimum term.

To illustrate, 34-year-old Cashman was sentenced yesterday to life with a minimum term of 42 years. 29-year-old Jordan McSweeney received a minimum term of 38 years. Each will be a pensioner by the time he is eligible even to apply for release. Given the nature of their respective offences, there is a realistic chance that each will die in custody.

Is the suggestion seriously that such men will be persuaded to cooperate with the court process by the threat of a few extra months – or even years – being added onto their indeterminate sentence? What about somebody already facing a whole life order? Is Mr Raab sitting on a body of expert evidence showing that they are going to be deterred by a sentence of “infinity plus one”?

If sentencing doesn’t hold the answer, what other options exist? Dominic Raab has boasted that he “wouldn’t rule out” forcing prison staff to “physically having to manhandle somebody out of the cell”. But even if he is willing to risk the safety of the low-paid staff who would be responsible for this vaunted “manhandling”, what does Mr Raab think will happen once the resistant convicted murderer is dragged into the dock?

Once again, the drawbacks of policy being drawn by people with no experience of the criminal justice system, and no interest in speaking to those who have it, are all too obvious. Because I can tell you from extensive experience that somebody intent on disrupting court proceedings will generally find a way. Raab’s plan, far from guaranteeing an obedient and contrite defendant sitting meekly in the dock, is far more likely to encourage the hideous spectacle of a wild, bloodied and bruised prisoner shouting foul abuse at the victims’ families in court as a mechanism to have the judge send them back down to the cells.

Even on a lower level of non-compliance, the vision of a defendant sitting in the dock with his eyes closed and fingers performatively in his ears, or smirking remorselessly as the victims read out their personal statements, is stomach-churning. But, unless the policy is to involve gagging, binding and propping up eyelids with matchsticks, it is also practically impossible to eliminate. The judge’s ultimate power to ensure courtroom decorum is to exclude the unruly and the disruptive. Which is very much the outcome that the proposed policy is seeking to avoid.

The unfortunate reality is that there is little that can be done to force a person to cooperate with a court hearing. If we are set on deterrence as the answer, then a more immediate response might lie in the prison regime that governs incentives and earned privileges. But again, the type of person who derives satisfaction from the frisson of power they experience by defying the court process may well consider a forfeit of prison privileges to be a trade worth making.

And compliance, of course, is only part of the picture. What victims and families often want, in my experience, is not only to have their say, but to be heard. For the person who has wronged them to listen, to internalise and, even if they will never apologise, to leave the court process knowing what they have done. This is entirely reasonable. It is what I would want too. But it is also something which no politician can guarantee. Sincerity and insight cannot be extracted from an unrepentant defendant any more than they can from a politician.

There may not be an easy answer here. There may in fact not be an answer at all. And that is something that a public representative with integrity has a responsibility to recognise and to explain, instead of appropriating bereaved families for their tubthumping tabloid pledges.

thesecretbarrister Fake Law, Lawsplaining, Politics, Sentencing