Hashem Abedi, the Manchester Arena bomb plotter, was not in the dock today for the start of his sentencing hearing.
Mr Justice Jeremy Baker, who is expected to sentence him to life imprisonment tomorrow for the murder of 22 people and other serious offences in the terrorist attack of 2017, said the defendant had been brought to the Old Bailey from prison. But the judge could not require him to be brought into the courtroom.
“You will … no doubt be aware,” he told the prosecutor, “that the court has no legal right to direct a prison officer to use force to compel a prisoner to attend court.”
It may seem strange that the judge can sentence Abedi to decades in prison but cannot order him to spend a couple of days in a courtroom. Abedi has been in custody since he was extradited from Libya last summer.
But judges have only the powers granted to them by law. The reason they cannot order the attendance of an unwilling defendant is presumably that there would be little to be gained by it. If an accused decides to disrupt the proceedings, the judge’s ultimate sanction is to order the defendant to be taken down to the court cells.
On the other hand, a court must not proceed if the defendant is not present unless the court is satisfied that the accused person has waived the right to attend and the trial will be fair despite the defendant’s absence.
Abedi sacked his defence team part-way through his trial and refused to come to court.
There are further complications if, as here, a defendant facing serious charges does not have a lawyer present at the sentencing hearing.
Rule 25.2(1)(c) of the Criminal Procedure Rules 2015 says that a court must not sentence a defendant to imprisonment “unless the defendant has a legal representative … or the defendant could have been represented under legal aid but is not because section 83(3) of the Powers of Criminal Courts (Sentencing) Act 2000 applies”.
Section 83(3) covers the case of a defendant who “having been informed of his right to apply for such representation and having had the opportunity to do so … refused or failed to apply”.
Mr Justice Jeremy Baker said that Abedi had been visited by solicitors last month with a view to arranging legal representation. In a letter to the court, the solicitors said Abedi did not “wish to be represented by us or any other firm of solicitors”.
The judge said Abedi had been encouraged to have legal representation. “But he has made it clear — and I am satisfied — that he does not wish to be present at the hearing.”
That may have come as a relief to those injured by Abedi and the families of those he murdered. However, some may have hoped to watch him being sentenced. But in our system of justice criminal prosecutions are brought on behalf of the state, not the victims. Although victims are allowed to make impact statements to the court ahead of sentencing, they have no rights to demand a particular sentence or even to insist on the defendant’s appearance.
Generally speaking, defendants are not tried unless they can be brought to court. Quite apart from the issue of fairness, there is little point in trying a defendant who might never be found. But the law allows a trial to begin or continue in the absence of the defendant in limited circumstances. Otherwise, an uncooperative defendant would be able to delay a trial until witnesses were no longer available.
Sentence may also be passed in the defendant’s absence. But the courts have said that the discretion to try and sentence a defendant in his or her absence is one that should be exercised with great care, particularly if the accused is unrepresented.
When presiding over the trial of an unrepresented defendant, the judge must take reasonable steps to expose any weaknesses in the prosecution case and warn the jury that the defendant’s absence is not an admission of guilt.
Duncan Penny QC, the prosecutor in Abedi’s case, is also expected to mention any mitigating factors when addressing the judge on sentencing, such as the defendant’s age: he was 20 at the time of the bombing.
Although the sentence for murder is fixed by law, the judge has to set a minimum term before Abedi, now 23, can be considered for parole. If he had been 21 or over in 2017, the starting point would have been what’s called a whole life order — under which the offender is not normally released except on grounds of age or infirmity.
In Abedi’s case, the starting point is 30 years. But the judge will then consider aggravating factors, such as the terrorism aspect and the number of deaths and injuries.
Update 20 August: Mr Justice Jeremy Baker set a minimum term of 55 years in custody, adding that Abedi might never be released. His full sentencing remarks can be read here.
The judge explained that section 269 of the Criminal Justice Act 2003 prevented him from making a whole life order. These are the relevant provisions:
(2) The court must, unless it makes an order under subsection (4), order that the provisions of section 28(5) to (8) of the Crime (Sentences) Act 1997 (referred to in this Chapter as “the early release provisions”) are to apply to the offender as soon as he has served the part of his sentence which is specified in the order…
(4) If the offender was 21 or over when he committed the offence and the court is of the opinion that, because of the seriousness of the offence, or of the combination of the offence and one or more offences associated with it, no order should be made under subsection (2), the court must order that the early release provisions are not to apply to the offender.
In simple terms, the court could not make an order under subsection (4) because Abdei was under 21 when he committed the offence. So, under subsection (2) the judge had to specify a fixed term after which Abedi’s case would be referred to the Parole Board.
It remains to be seen whether Abedi will seek to challenge his 55-year minimum — or his convictions — at the Court of Appeal. For that, however, he would need lawyers.