Anne Sacoolas in court?

Only virtually, it seems. But how is that going to work?

The Crown Prosecution Service (CPS) told the PA news agency earlier this week that there would be a court hearing in London today involving Anne Sacoolas. It’s more than three years since her car was involved in a collision near a US base in Northamptonshire that led to the death of a 19-year-old motorcyclist, Harry Dunn.

Sacoolas, a US citizen with diplomatic immunity, was allowed to leave the UK within a month of the accident. Prosecutors subsequently approved charges of causing death by dangerous driving but a request for her extradition was turned down by the US government in January 2020.

Harry Dunn

This week, Sacoolas’s lawyers told a US news network that there would be a very brief procedural hearing in London and she would appear “virtually” — by video link. That explains why the case has been scheduled for 2pm — which is 9am in Washington DC.

Arrangements have been made for Dunn’s family to attend the hearing. Speaking as foreign secretary in June last year, Dominic Raab said:

The US has not agreed to the extradition, but the path is clear for the legal authorities in the UK to approach Anne Sacoolas’s lawyers — without any problem from the US government — to see whether some kind of virtual trial or process could allow some accountability and some solace and some justice for the Dunn family.

That’s about as much as we know and it raises many more questions than it answers. I have not been able to find out anything more from the CPS or Sacoolas’s lawyers. I cannot see any reference to the case on the published court list.

It’s as if both sides have agreed that whatever fantastic legal structure they have created could be blown away by an idle comment. Sacoolas has not been arrested, charged or — as far as we know — even summonsed to appear in court. So the case does not seem to be “active” within the meaning of the Contempt of Court Act 1981.

This is not the first time we have been told there was to be a hearing at Westminster Magistrates’ Court. It was originally scheduled for 18 January — and then “vacated” to allow “discussions between the CPS and Anne Sacoolas’s legal representatives to continue”.

I suspect the January hearing was announced — more than a month in advance — to give some impetus to those discussions. Perhaps this week’s announcement suggests that the discussions — involving the US State Department and the UK Foreign Office — have finally been resolved.

But what has been agreed? Clearly, Sacoolas, 45, will never return to the United Kingdom. That’s what her lawyer told me 18 months ago and I am sure nothing has changed. Even if she wanted to come, I believe the US government would not allow it.

In England and Wales, all criminal cases start in the magistrates’ court. Defendants facing the most serious charges must then be sent for trial in the Crown Court. So a brief initial hearing before a district judge would be entirely normal. And we are now used to defendants in custody appearing by video link from prison.

But that does not happen on their first appearance in court.¹ And the video links are always from prisons in England and Wales.

It is possible for a criminal trial to continue if a defendant absconds; or is ill; or refuses to come up from the cells. It is possible for a trial of several co-defendants to proceed without all of them in court. But I do not know of a case involving a single defendant that has begun while the defendant was abroad and therefore outside the court’s jurisdiction.

What would be the point? How could any sentence be enforced?

Amy Jeffress, Sacoolas’s US lawyer, told me last year that she had been trying to resolve the case in a way that would not involve her client’s return to the UK.

Jeffress said:

We understand that community service is a typical sentence for offences like this.

We have offered ever since over a year ago that she would be willing to serve that kind of a sentence [in the US] and to make a contribution in Harry’s memory, to take other steps to try to bring some peace to the family.

Recalling the accident, Jeffress said her client had driven “instinctively” on the right-hand side of the road after leaving RAF Croughton, the US communications base where Sacoolas’s husband worked in a role that gave him diplomatic immunity.

At the time of the crash on 27 August 2019, Mrs Sacoolas had only been in the UK “for a few weeks” and had made “a tragic mistake”, Jeffress told me in a BBC interview.

“She’s never denied that this was her fault — that she caused this collision by driving on the wrong side of the road.”

The lawyer added:

One aspect of this that has not been reported is that this kind of an accident, had it occurred in the United States, would not be prosecuted criminally.

In the United States, these cases are only prosecuted where there is evidence of recklessness that rises to the level of close to intent — drunk-driving, distracted driving, a hit-and-run situation or excessive speeding. But there was none of that here.

Any lawyer representing a client accused of causing death by dangerous driving (maximum sentence 14 years) would seek to get the charge reduced to causing death by careless driving (maximum sentence five years). For careless driving where a death results from the driver’s momentary inattention, and there are no aggravating factors, a community sentence may be appropriate.

But we do not have US-style plea bargaining in the UK and no prosecutor can guarantee the sentence that a judge will pass, even on a plea of guilty. So it seems unlikely that Sacoolas has been offered the sort of promises that her lawyers may have wanted.

Perhaps that doesn’t matter. No sentence that may be passed on a virtual defendant can ever be truly enforceable.

Update 0930: A reader has kindly alerted me to section 51 of the Criminal Justice Act 2003, as amended with effect from 28 June 2022 by the Police, Crime, Sentencing and Courts Act 2022. This allows courts to permit or direct a person to take part in eligible criminal proceedings through a live audio or video link, subject to conditions. Eligible legal proceedings include a preliminary hearing and a Crown Court trial.

Section 52(1)(c) makes it clear that this power can be used in respect of a person outside the UK. Section 52A(1) says that a person who appears in this way is to be treated as complying with any requirement to “attend or appear before court, or to surrender to the custody of the court”.

But none of that makes the sentence of the court enforceable against someone outside the court’s jurisdiction.

Update 1615: Sacoolas appeared by video link this afternoon and, as expected, her case was sent to the Crown Court — in this case, the Old Bailey.

It emerged that she had been charged in writing on 26 September with causing death by dangerous driving.

Her counsel Ben Cooper KC said: “There is no indication of plea to a charge of death by dangerous driving, but there will be a guilty plea to a charge of death by careless driving.”

Duncan Atkinson KC, for the prosecution, said the unusual arrangements for the court hearing had been agreed in advance.

The chief magistrate Paul Goldspring told Sacoolas that she would have to appear in person at the Old Bailey for the next hearing on 27 October. However, he continued, “that may change because of a joint application to the judge in charge to allow you to attend by video-link”.

It’s understood that Cooper and Atkinson will ask Judge Lucraft KC, the Recorder of London, to allow Sacoolas to attend the next hearing remotely.

Goldspring granted Sacoolas unconditional bail. “That means there are no restrictions from the court on you,” he explained.

1. Update: the Evening Standard’s much-admired courts correspondent Tristan Kirk recalls a case where a defendant made his first appearance in court from abroad. But defendant later agreed to return to London and entered a guilty plea at the Old Bailey. He received a suspended sentence.