Riots sentencing: judges are guided by principles, not moral panic

Riots sentencing: judges are guided by principles, not moral panic

The judiciary is not overreacting to unprecedented events – it is working on the basis of decades-old guidance

David Thomas, Guardian, Thursday 8 September 2011 08.00 BST

People protest at Brixton prison against the 'excessive' sentencing and criminalising of minor offenders following recent riots. Photograph: Behzad/Demotix/Corbis

The judicial sentencing of offenders who took part in the August riots has produced the predictable crop of ill-informed and extreme criticism in the media. Sentencers have been accused of indulging in a "feeding frenzy", of passing disproportionate sentences of unprecedented severity, inspired by the outrage of politicians and spurred on by the media. The reality is rather different.

The August riots were by no means the first major public disorders to happen in this country. There is plenty of judicial precedent establishing guidelines and principles for dealing with offenders who take part in them. The three key principles were stated over 40 years ago in the case which followed the Garden House Hotel incident in Cambridge, when Cambridge undergraduates attacked a hotel hosting a Greek tourist board event in protest at the Greek colonels' regime.

Upholding custodial sentences on most of those who took part, the court of appeal stated three principles which have been repeated and applied in the intervening years. The first principle is that a defendant who is one of a minority of participants to be arrested and prosecuted cannot complain that he is one of the unlucky ones and that others who were equally to blame and who had got away with it will not be punished. The second principle, perhaps the most important, is that anyone who takes part in a major public disorder cannot expect his actions to be considered in isolation from the actions of those around him. The fact that the particular defendant only threw one brick is not critical; his offence was participation in a much larger disorder in which the police where overwhelmed by strength of numbers. The third principle is that in the case of large scale public disorder, the offender's previous good character will have less than its usual effect in mitigation.

These principles were repeated and endorsed by the late Lord Lane, chief justice in the case which followed the Broadwater Farm riot of the early 1980s, and the Bradford riots of 2002 led to an important judgment of the court of appeal dealing with the sentencing of offenders convicted of rioting under the new statutory offences created by the Public Order Act 1986. The guidance given by the court of appeal in that case is that for offenders convicted of a leading role in organising or instigating a riot (as opposed to a violent disorder) the starting point for consideration of the sentence should be close to the maximum sentence of 10 years. Active and persistent participants who threw or used potentially lethal weapons such as petrol bombs might have expected sentences between eight and nine years. Those who were present for a significant period and repeatedly threw missiles such as bricks or stones would have expected sentences of five years. All these sentences would be discounted if the defendant pleaded guilty.

Relatively few of the defendants charged with offences arising out of last month's riots have so far been sentenced; the majority have been committed to the crown court for trial or sentence and their cases will be dealt with in the next few months. For many, the sentence will depend on how the Crown Prosecution Service chooses to charge them – will they be charged with riot (maximum sentence 10 years) or violent disorder (maximum sentence of five years)? Although the differences in the evidence necessary to establish the two offences are insignificant in the context of large scale disorders, the choice of one charge rather than another will have a substantial effect on the final sentence.

Many of the defendants who have so far been sentenced have admitted burglary in the form of looting. An important and interesting initiative has been taken by the recorder of Manchester, Judge Gilbart. Faced with the prospect of large numbers of offenders appearing before the crown courts in Manchester, Gilbart gave a judgment setting out of the principles he and the other Manchester judges would follow in dealing with such offenders. Gilbart's judgment cannot properly be described as a guideline, because it does not bind any other judge sitting elsewhere, but judges in other crown court centres have indicated that they will follow the same approach. Gilbart's judgment should be read by anyone who wishes to understand why the judges are passing the sentences they are passing. The judgment, which has been virtually ignored by the media, begins by setting out details of the scale of the disturbances in Manchester and the extent of the damage done. The judgment discusses the Sentencing Guidelines Council's guidelines for burglary and theft but points out that the council was not considering looting by mobs when the guideline was formulated.

It remains to be seen whether Gilbart's sentencing scheme will be approved by the court of appeal if and when appeals against sentences passed reach it. It seems probable that the court of appeal will approve the scheme at least in principle, if for no other reason than that it is based in part on earlier decisions of the court of appeal in the context of other major disorders. It seems highly unlikely that large numbers of defendants sentenced for participating in looting to terms of between 16 months and two years' imprisonment will find their sentences reduced or set aside on appeal, if only because many of them will have served their sentences and been released on home detention curfew before their appeals can be heard. What Gilbart's scheme and the actions of other judges demonstrate is that the judiciary is proceeding in a systematic way, on the basis of principles and guidance which has been on the public record for decades, and not overreacting in a moral panic to unprecedented events.