There has been a lot of debate and discussion in the last week about the sentences being handed down by courts around England in connection with the mass-scale disturbances that took place over the space of four days last week.
The Courts have been handing down what appear to be, on the face of things, some very tough and overly harsh sentences which appear to be reflecting the public mood and especially the mood of the Government. More than 60% of those charged have been remanded into custody pending their cases being dealt with in the courts; this is significantly higher than normal. Last year only about 10% of all defendants were remanded in total. Some commentators have questioned this much wider than normal use of remand, and even gone as far as to suggest that the benches may even be trying to use remand as part of the punishment. There is, in law, a presumption in favour of bail being granted. There are no offences where the opposite is true. It is for the Crown to prove that the defendant should not be granted bail and instead be held in custody. Holding a person in custody, particularly before they have entered a plea of guilty or been found guilty by the Court is a serious matter. It is removing the liberty of individuals who are legally still innocent of any crime and are only suspected of having committed the crimes alleged of them. Therefore, it is not something that should be entered into lightly. Indeed it is not something that magistrates or judges would enter into lightly.
Yesterday two teenagers were sent to prison for four years over Facebook events they had created in order to try and incite riots. These sentences do appear overly harsh, but the fact that both defendants received the same sentence when the facts were really quite different is also of concern. In one case it is reported that the defendant not only created the Facebook event, but had turned up at the location detailed in the event as the meeting point. While it is reported that the other individual removed the event and apologised before police came to arrest him. If those facts are indeed true then there is a higher level of culpability in the first case and it would ordinarily be expected that this would lead to a more severe sentence than the second defendant.
Sentencing is not all about punishment, retribution and deterrence, but this is what sentences being handed down around England in relation to the mass public disorder appear to be about. There is another important element to the sentencing and that is proportionality. In order for the sentence to be proportionate the context in which that offence was committed must be looked at.
The offences with which people have been charged in relation to the mass public disorder are quite rightly being aggravated by the context of mass public-disorder. It would be reasonable to expect that people who are convicted or plead guilty to these offences to be treated by the courts in a more serious way.
The ordinary rules of sentencing should not be set aside in extraordinary circumstances. In order for justice to be justice at all it must be fair to all parties, the defendant included. In order that it is fair magistrates and judges should follow the same guidelines and processes as they would normally and not simply ignore them. Indeed, in England and Wales courts are bound by Section 172 of the Criminal Justice Act 2003 which requires them to have regard to any definitive sentencing guidelines issued by the Sentencing Guidelines Council. The definitive guidance issued by the Council are published online.
Many commentators are of the opinion that the Court of Appeal is going to be rather busy as they review decisions not to grant bail and decisions on sentences handed down by the courts in relation to the mass-disorder of last week. Court time is already at a premium and it is going to become filled with cases where defendants are appealing their sentences.
One factor that has been highlighted on a number of occasions has been the all night sittings of Magistrates’ Courts. Legitimate questions exist regarding the quality of the judgment of Magistrates and of representation (on both the Crown and Defence sides of the court) when cases are being dealt with in the early hours of the morning.
In Scotland a number of persons have been charged with offences relating to inciting riots on Facebook. It will be interesting to observe how the Scottish Courts handle these cases if and when the cases come before them for sentencing. Scotland didn’t see any of the scenes of mass-scale public-disorder that provide the backdrop and context for the sentences being handed down in Scotland. There does not appear to be the same level of public mood as there is in England, which is no doubt fuelled by the disorder. Therefore, it might be reasonable to expect a more considered and measured approach to sentencing. That said; each of the accused persons have been remanded into custody so hopes for a more measured and sensible approach to sentencing in these cases might be no more than wishful thinking.