Riot appeals bring no surprises – but what next for Facebook?

Following a hearing on 27 September 2011, the Court of Appeal today (Tuesday 18 October) handed its judgment in the appeals against sentence for those involved in the August riots across the UK:

• Jordan Blackshaw and Perry Sutcliffe, convicted of inciting riots via Facebook and sentenced to four years imprisonment.
• Hassan Holloway, Enrico Vanasco, Michael Gillespie‐Doyle, Hassan Koyuncu, and Lorraine McGrane, all convicted of burglary and sentenced to between twelve months and four years and eight months imprisonment.
• Stephen Craven, David Beswick and Stephen Carter, all convicted of handling stolen goods and sentenced to between 12 and 18 months.

All of the sentences were upheld except Craven, Beswick and Carter whose prison sentences were halved, on the basis that their offences were consequent to rather than contributing to the disorder and so their original sentences had been excessive.

In handing down the judgment, the Lord Chief Justice, Lord Judge highlighted the ‘magnitude’ of the disorder as a significant aggravating factor:

“… the context hugely aggravates the seriousness of each individual offence. None of these crimes was committed in isolation. Eight of them were intrinsic to or arose from the widespread lawlessness and two more were intended to contribute to or aggravate it at a time when the disorders were at their most disruptive and alarming.”

The rioters were condemned for:

“deriving support and comfort and encouragement from being together with other offenders, and offering comfort support and encouragement to the offenders around them. Perhaps, too, the sheer numbers involved may have led some of the offenders to believe that they were untouchable and would escape detection. “

Accordingly:

“… the imposition of severe sentences, intended to provide both punishment and deterrence, must follow. It is very simple. Those who deliberately participate in disturbances of this magnitude, causing injury and damage and fear to even the most stout‐hearted of citizens, and who individually commit further crimes during the course of the riots are committing aggravated crimes. They must be punished accordingly, and the sentences should be designed to deter others from similar criminal activity.”

This comes as little surprise, as public order has long been an aggravating factor for an offence which, committed in isolation, would have been treated more leniently. Lord Judge highlighted the judgment in R v. Caird (which followed the Garden House riots of 1970, where eight Cambridge University students were jailed after a protest against the Greek military junta escalated into disorder):

“Any participation whatever, irrespective of its precise form, in an unlawful or riotous assembly of this type derives its gravity from becoming one of those who by weight of numbers pursued a common and unlawful purpose. The law of this country has always leant heavily against those who, to attain such a purpose, use the threat that lies in the power of numbers…”

The court’s reasoning remains the same and so, although HHJ Gilbart QC was again criticised for going beyond his remit in suggesting sentencing guidelines for offences not before his court (see in particular paras 17 – 19 of today’s judgment), it seems that the Court of Appeal has largely approved the first-instance approach to riot sentencing.

Social networking and incitement

A key topic for discussion has been the role of Facebook in the offences committed by Blackshaw and Sutcliffe. Lord Judge acknowledged that, in each creating just one Facebook group, the appellants actually went to little effort in committing the offences. They did not “go door to door” looking for accomplices. Nonetheless, the judgment held that the power and range of the tools available to Blackshaw and Sutcliffe made this irrelevant. It was an “abuse of modern technology for criminal purposes” and so a deterrent sentence of four years remained appropriate.  Clearly the ramifications of this are huge, particularly in the context of incitement offences.

It is only in the last few years that such powers have become available to anyone, anywhere (they certainly were beyond imagination at the time of the Garden House riots) and it seems only by literal trial and error are the boundaries being tested. In particular, ask Paul Chambers whose ill-advised Twitter joke ended in conviction.  (more discussion here).

Facebook, Twitter and other internet communities give any person the opportunity to communicate instantly to a potential audience of billions. Whilst much has been made of the power of social networking during the Arab Spring, we may yet see more high-profile examples of it being put to less desirable uses.

Future riot appeals

Today’s judgment will also be of relevance to a forthcoming ruling by the Court of Appeal on sentences passed on persons involved in disturbances which occurred during the anti-tuition fees and anti-cuts protests in London around the turn of the year. Judgment in those appeals was reserved until after today’s judgment.

Corker Binning is a law firm specialising in juveniles and youth crime and general criminal work of all kinds. For more information, call us on 0207 353 6000.