22 Jul 2012

One year on: how well did the courts deal with the 2011 riots?

Last week eight men were acquitted of the murder of three men who died in Birmingham during the 2011 riots. This draws to a close a year in which the courts have been forced to deal with an almost unprecedented wave of violent, theft-related and public order cases. So what can we conclude from the way in which the courts dealt with the aftermath of the disorder?

According to the Ministry of Justice, by 15 June 2012 3,051 people (of an estimated 15,000 participants) had been brought before the courts in relation to the riots. Interestingly, it does not appear that any prosecutions were brought for the substantive offence of riot; the highest percentage of charges were for either violent disorder or robbery, followed by burglary, criminal damage and theft. There were also charges for incitement to riot, notably those cases involving social networking websites. A charge of riot requires 12 or more participants, rather than the three required for a violent disorder charge. There is also the added hurdle of the requirement of unlawful violence for a common purpose. Overcoming this final hurdle may have been the main issue for the CPS.

Bail: refused

Under the Bail Act 1976, there is a general right to unconditional bail for unconvicted defendants.  The fact that an offence took place during a period of disorder is not a reason to refuse bail; but the circumstances as a whole must be considered. It is difficult to believe that it was necessary to remand such a high proportion of defendants in custody. However, the prevention of further offending whilst on bail, potentially resulting in further nights of violence and unrest, would undoubtedly have been a prevalent concern for the courts.

Severe sentencing

On average riot-related sentences were 25% longer than normal.

The sentencing framework of HHJ Gilbart QC, recorder of Manchester, was referred to and followed by many judges sentencing riot-related cases. HHJ Gilbart QC stressed that he had received no guidance from the government in respect of riot sentencing, but that he had consulted with other Crown Court judges as to the level of sentencing required. His view was that usual sentencing could “properly be departed from”. He said that it would be “wholly wrong” for him to have regard to the specific acts as though they had been committed in isolation. The fact that they were not “substantially aggravates the gravity of the offence.” HHJ Gilbart’s starting point (for convictions following a trial) was a high one: any adult offender who took part in the events in Manchester/ Salford on the evening of 9 August must expect to lose his liberty for a significant period. He then set out his sentencing ranges for variations of 11 offences.

By setting out his own sentencing ranges in such an intentionally transparent way, he was  effectively creating unofficial guidelines to be adopted by judges across the country.

HHJ Atherton adopted the framework of HHJ Gilbart QC and, in addition, had consideration to an aspect which in his view was particularly relevant: the impact of the violence upon victims in the area and the fear stirred up in anticipation of the rioting. He said that whilst the low financial value of a theft would usually be a significant factor, it loses its significance in the context of such widespread criminality.

In an active demonstration of government transparency, the Ministry of Justice instructed magistrates courts nationwide to provide full details of their court results of all riot-related cases. It is hard to think of a period when these details have previously been released on such a scale. Within weeks of the disorder, data suggested that in 70% of cases defendants faced immediate prison.

A year on, we can see from MoJ data that sentences were certainly tougher than those given for similar offences outside the context of riot. By way of example, in the magistrates courts riot offenders received an average of 6.5 months; similar offences committed in 2010 received an average sentence of 2.5 months. The comparison in the crown court is a similar ratio: an average 19.4 months in the context of the 2011 riots versus an average of 11.3 months for similar offences in 2010.

In October 2011 the Lord Chief Justice in ruling on a number of appeals against riot sentences, commented on the relationship between the offending itself and the overall disorder. The court also referred to a riot which took place in Cambridge 40 years ago and emphasised that referring to the offending in the context of riot is not a newfound approach to sentencing. The context of riot “hugely aggravates the seriousness of each individual offence.” He also made reference to the importance of deterrence from similar criminal activity.

However, in allowing the appeals against sentence in three handling cases, the Lord Chief Justice said that “a line needs to be drawn between the offences which arose from and were directly connected with the disorder, and those which were intrinsic in the disorder”, the latter being the most aggravating feature. He recognised that “not every handling case committed during the public disorder was as intrinsic to it as say the burglaries of shops which had been smashed and looted”.

The general message was that sentences of this order were necessary as a deterrent; a re-run of such an appalling episode has to be prevented.

Reporting restrictions in youth cases  

s49 of the Children and Young Persons Act 1933 automatically imposes reporting restrictions in the youth court. These can be lifted if it is in the public interest to do so, but must not be used as a punishment by way of ‘naming and shaming’. Art 10 ECHR provides that it must be necessary and proportionate, with a pressing social need. In the magistrates and crown court the automatic ban on reporting does not apply; such an order is merely discretionary under s39. The judge is required to balance the interests of the public with the welfare of the young person. The weight given to the welfare consideration changes upon conviction, at which point there often becomes a legitimate public interest in learning of the conviction, and the deterrent effect that publication may have on others. On 18 August 2011 the CPS issued revised guidance to prosecutors in respect of reporting youth convictions: a spokesperson stated that the matter would continue to be dealt with on a case by case basis. No doubt the revised guidance was felt necessary to satisfy public hunger for offenders to be brought before the courts and dealt with appropriately.

The summer ahead

The first anniversary of the riots is marked by the arrival of the 2012 Olympics in London. Charles Farr, Director-General of the Office for Security and Counter-Terrorism at the Home Office, said earlier this year that the most likely serious threat to the Olympics is crime and disorder. 20% cuts to policing will be a key concern as to whether any repeat disorder can be controlled. But one thing is clear: the courts coped well, sitting around the clock and sentencing harder in an aim for deterrence. The context in which offences are committed is a factor which will dramatically affect sentencing: if widespread offending was to return during the Games, then inevitably the courts will waste no time in reacting as is deemed necessary, and a flight from normal sentencing guidelines can again be expected.

Corker Binning is a law firm specialising in fraud, regulatory and general criminal work of all types. For more information about how we can help, visit the crime and juvenile crime pages of our website or call us on 0207 353 6000.

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