Don't raise the hopes of the bereaved

Especially if you are guardian of the public interest

As a party politician who has to advise government colleagues on political issues while making disinterested legal judgments in the public interest, the attorney general has a uniquely challenging role. I am sorry to say that Suella Braverman QC MP (pictured) is not managing that challenge very well.

Last Friday, she announced that she was referring the sentences passed on PC Andrew Harper’s killers to the Court of Appeal as “unduly lenient”. As the attorney said in her press release, that meant she thought Mr Justice Edis, who is to join the Court of Appeal himself in January, “made a gross error or imposed a sentence outside the range of reasonable sentences available”. Henry Long, 19, who admitted manslaughter, was sentenced to 16 years’ imprisonment. Albert Bowers and Jessie Cole, both 18, were sentenced to 13 years’ imprisonment for the same offence.

We shall see whether the appeal judges agree with Braverman. But I don’t think they will be very interested in her opinion that those who attack emergency workers “should be punished with the greatest severity for such heinous crimes”. They are more likely to think that criminals should be punished in accordance with the law. All the attorney needed to say was that, in her view, these sentences were unduly lenient.

But at least she didn’t get the law wrong. What are we to make of the news that Braverman is considering putting the woman accused of killing Harry Dunn on trial in her absence? Anne Sacoolas, an American, is accused of colliding with the 19-year-old motorcyclist when she was driving on the wrong side of the road.

News of this development emerged in a bizarre way. Andrea Leadsom, the Dunn family’s MP, wrote to government ministers this month asking them to consider the possibility of putting Sacoolas on trial in the UK while she remains in the US.

The lord chancellor, Robert Buckland, responded to Leadsom in a letter he knew would be made public. It said:

The suggestions you put forward for resolving the impasse by holding a trial virtually or in absentia are as you know being considered by the attorney general, and she will respond as decisions about criminal proceedings in individual cases are a matter for her and the director of public prosecutions.

This afternoon, I asked the attorney general’s office whether Braverman had considered rule 25.2(1)(b) of the Criminal Procedure Rules 2015 (soon to be replaced by an identical 2020 rule). This says:

the court must not proceed if the defendant is absent, unless the court is satisfied that—

the defendant has waived the right to attend, and

the trial will be fair despite the defendant’s absence.

I suppose it’s just possible that a decision by Sacoolas not to return to the UK and face a charge of causing death by dangerous driving might be considered a waiver of her right to attend. But how could a trial possibly be fair despite her absence?

And there must be some doubt over whether Sacoolas is a free agent in such matters. The US Department of State says she has diplomatic immunity, adding that “the use of an extradition treaty to attempt to return the spouse of a former diplomat by force would establish an extraordinarily troubling precedent”. So she couldn’t return to the UK even if she wanted to. Nor, in the absence of fresh legislation, could there be a “virtual” trial.

The Criminal Procedure Rules go on to say that a defendant cannot be sentenced to imprisonment unless he or she has a legal representative or has refused to apply for legal aid. That was how a judge was able to sentence Hashem Abedi in his absence last week for the Manchester Arena bombing.

But Abedi had been present for the start of his trial. Blackstone’s Criminal Practice, edited by the former law commissioner David Ormerod QC (hon), sums up the law clearly:

The accused must be present at the commencement of a trial on indictment in order to plead. It is then the almost invariable practice for him to be present throughout his trial.

There are exceptions, of course. The trial may proceed in the absence of the accused if:

  • The defendant misbehaves, or

  • The defendant’s absence is voluntary, or

  • The defendant is too ill to attend, or

  • The defendant dies.

But voluntary absence refers to a defendant who has been present for the start of a trial and then either escapes from custody or fails to surrender to bail. It does not apply to someone who was never there.

There are good reasons why trials do not begin until an accused is brought before a court. It’s not just that the judge will not know whether the defendant admits the crime or not. It’s not just that a fair trial is much more difficult if the jury hears only one side of the story. It’s that there is little point in convicting someone who is unlikely to serve any sentence or pay any penalty that the court may impose.

And where would it end? We can all think of people in other countries we’d like to see face justice for crimes against people in the UK. And that’s before we start putting the dead on trial.

As I say, I wanted to put some of these points to Braverman or her advisers. After some hours, her office released the following statement:

The government’s deepest sympathies remain with Harry’s family. We are doing everything we can to achieve justice and the case continues to be raised at the highest levels.

That’s fine, but it completely misses the point. By all means try to persuade the US to waive the immunity claimed for Sacoolas and seek her extradition to stand trial in the UK. By all means refer sentences to the Court of Appeal if you think they are way out of line.

But don’t raise the hopes of the bereaved and then blame the judges when you are unable to deliver.