"Failure to appear in the dock cannot become the norm. It should be viewed as an aggravating factor that will increase the sentence imposed."
The harrowing case of the murder of nine-year-old Olivia Pratt-Korbel has shocked the nation. But as the trial judge, Mrs Justice Yip, passed sentence on Monday, the dock stood empty. Olivia’s murderer, the defendant Thomas Cashman, refused to leave his cell, telling his counsel to represent him and give reasons why he did not intend to face the court.
To Olivia’s family, this looked like a deliberate and controlling move by Cashman to avoid facing final accountability for his appalling actions. They were unable to see his response as the victim impact statements were read out to the court. An important part of the justice process, namely the public holding to account of Cashman for his crime, was cast aside.
In recent years, a number of defendants have failed to appear in the dock to face the court and families of victims. Concern is growing, understandably, that perpetrators of heinous crimes are exerting an undue degree of control over the justice process. From a judicial point of view, having the defendant present in person or via a video link is desirable. Judges have to explain the reasons for the sentence being delivered, and deliver it to the person being held accountable for a crime.
There have been calls for convicts to be forced to attend – with handcuffs or other restraints if necessary. These measures may already be used in court if there is a demonstrable danger of violence or risk of escape. My fear over using these to ensure attendance is that, unintentionally, control is being handed back to the defendant. They – rather than the victim and their family – take centre stage. Further, non-cooperation, and citing reasons for it, can be used to drag proceedings out, prolonging uncertainty and pain for the victim’s loved ones.
It is, nevertheless, infinitely preferable for families to be able to see the defendant and their reaction to what is unfolding in court. And there are other ways in which this can be achieved. One option in the short-term is the use of a live TV link to the cell in serious cases, ensuring a full view of the defendant for the judge or the court, which would make it clear that there was nowhere to hide. A disruptive or unruly defendant could be muted, as happens already in proceedings when circumstances demand it. This is an imperfect measure, but one that offers an immediate solution to a problem that many worry is on the rise.
In the medium to longer term, however, courts could treat refusal to enter as an aggravating factor that would increase the sentence imposed. In life sentences, for example, the minimum term before a defendant is considered for release by a parole board could be increased. Alternatively, the parole board rules could be varied to make sure that refusal to attend means parole is denied, at least for the first application.
Because a period of up to two years has to elapse before a case is reviewed after a failed parole application, this would in effect be an extension to their prison term. Lastly, the prison authorities could refuse applications by the defendant for any transfer from a Category A or B prison to another part of the prison estate based on their lack of cooperation at sentence. We cannot allow absence from the dock to become the norm. It is the least victims – and their families – deserve.
