a sense of proportion

Those who choose to take part in activities of this type must understand that they do so at their peril. These are the words of Judge Gilbart when sentencing four defendants who had taken part in the riots in Manchester earlier this month. They stole from shops. They didn’t smash the windows, break in, set fire or attack police; the door was open, the goods were there, they took some. In themselves, relatively low category offences of theft and non-dwelling burglary that might normally be dealt with in a magistrates court where a maximum of 6 months custody can be given for each offence. But they were committed as part of the general disorder that we saw in cities across the country, and that’s why the sentences handed out have been surprisingly high.

Effectively, the looters and thieves have been treated as if they were part of the group action that committed the more violent and destructive crimes, and it’s a fair though unprecedented argument. Judge Gilbart went on to say I have no doubt at all that the principal purpose is that the Courts should show that outbursts of criminal behaviour like this will be and must be met with sentences longer than they would be if the offences had been committed in isolation. In other words, do anything criminal related to a riot and you are a rioter. A message that could not be clearer, not only to his four defendants that day who received prison sentences of 16 months, 18 months, 24 months and 10 months (suspended), but to the public, including those who think a first time offender in a riot won’t get a prison sentence; they will now. And yet in 2009 the police gave 4,400 cautions for burglary, completely at odds with the sentencing approach now being taken. Maybe the riots have given the police a message about sentencing too; leave it to the courts.

Judge Gilbart’s remarks were later endorsed by Judge Atherton and Judge Henshell when they came to sentence rioters in in much the same vein. Each of them paid respect to the sentencing guidelines and then explained why they would go above them. But tough sentencing is one thing, irrational is another, and there have been many examples of unreasonable and unjustified heavy sentences.

One example is Ursula Nevin who accepted looted shorts from a friend but had herself been asleep at home during the riots. District Judge Qureshi sentenced her to 5 months custody. Although the media reports the sentences being imposed in magistrates courts, nearly all the riots cases have been dealt with by district judges, who are highly paid whereas magistrates are voluntary. It is doubtful that any magistrate would impose such a high sentence on Ms Nevin or would have imposed a custodial sentence on her at all. The district judges, some say, have been politically influenced (though they would refute that) and have departed wildly from sentencing guidelines in many cases, also denying bail (contrary to the Bail Act) in order to enhance the punishment. The appeal court judge was the very same Judge Gilbart and he not only discharged the custodial sentence but gave Ms Nevin a very low level of unpaid work, just 75 hours, under a community order. This was a huge reduction on the original sentence and gave a very clear message to the district judge which hopefully was gratefully received.

There will be many more appeals and it won't be until they have been processed that we will know whether or not the general levels of sentences will be raised in the future, particularly for offences related to rioting and disorder. In the meantime the riots have stopped (for now) and those who claim that prison is not a deterrent to crime must review their argument. Prison is a deterrent and always has been.

And so it is back in vogue. Is the era of decrying imprisonment as costly, purposeless, offering little in the way of rehabilitation, reparation and discouragement from further offending at an end ? Temporarily maybe but the pendulum will swing again. Meanwhile, the public is demanding and rejoicing in harsher sentences, supported by politicians, eager to jump on any winning bandwagon. Community orders are, with some exceptions, not regarded by the public as a true punishment and are roundly criticised. There is no doubt that they can be a soft touch, and the actions of the deplorable former home secretary in using two prisoners on day release to decorate her home hasn’t helped the cause of non-custodial sentences. (As a misdemeanour it pales into insignificance compared to her very suspect expenses claims to the tune of £116,000, and we won’t mention her husband.)

But many community orders are worthwhile and are effective as punishment, reduction in crime, and deterrent. They need to be improved not abandoned, and lengthening the daily tagged curfew hours available to the courts, as an alternative to prison, from 12 to 16 would be a good start.

The public wants not only tougher sentences but more clarity and consistency and at lower cost. Right, let’s do it. Stop prison sentences being cut in half; nobody likes it; sentences will be shorter but fully served. Stop the police giving cautions for burglary and other very serious offences. Stop the election of crown court trial by defendants, wasting millions each year and prolonging the time to verdict considerably, even in some fairly trivial cases. Increase magistrates’ maximum sentencing powers to 12 or even 24 months custody, cutting down the number of cases going to expensive crown courts where the sentence would be just the same. And here’s one: Stop the use of district judges; they cost a fortune and are the only part of the criminal justice system where one person is judge and jury.

The fallout from the riots will continue for some time yet; potentially thousands of cases to be heard. When the dust has settled, we need to think carefully about what kind of justice we want and keep a cool head. We must treat every case on its merits, not always just as a part of a deepening criminality in society. The more serious offenders (those who commit arson, violence, burglary, robbery, incitement to riot etc) must get very heavy sentences but over-punishing the peripheral perpetrators will not help in the end. Keep a sense of proportion.