Thursday, 18 August 2011

Irrational punishment

The riots showed the UK in a bad light, but it looks like the reaction of our politicians and legal system is going to show us in a much worse light.

It appears the the public disgust at the riots is manifesting itself, though some of the judiciary, egged on by politicians, as repressive sentences, for some of those convicted of very minor crimes, that would make the leaders of China or Burma blanch.

The argument I have heard politicians of both major parties put is that these riots were so exceptional and outrageous that exemplary punishments for some of the perpetrators are justified: punishments that go beyond the sentencing norms for the same offences committed in more normal times. I have heard both David Cameron and David Blunkett say this today. But this is an utterly irrational argument.

There are two possible rational arguments, it seems to me, that can be held to in relationship to the crimes committed as part of the riots.

Argument A, the consistency view, is that justice should be blind to extraneous circumstances that have no direct bearing on the actions of the defendant in question. Then they should be sentenced according to the facts of what they actually did, exactly as if their crime had been committed in isolation, with no riot taking place. This would be fair and consistent sentencing.

But there is another rational view, which I will call Argument B, or the contextual view. This is that, if one holds that the riots are to some extent explained by circumstances, that is, they are not random and accidental, but influenced by high levels of unemployment, low levels of attainment, poverty and depravation, then these factors must mitigate the individual culpability of the criminals.

It seems to me that a person who sees lots of other people rioting, breaking windows, and stealing stuff, and, being an easily influenced kind of person, takes the opportunity to lift something from a shop, that they would not have done in normal circumstances, that that person is less culpable than someone who steals the same thing in a normal non-riot circumstance, because the latter person clearly has to have more determination and more ill-intent than the "opportunist" who is swept up in the lawless atmosphere of the rioting. On this contextual view, a given crime committed as part of a riot should be punished less severely than the same crime committed normally. I hold this to be a rational view.

But Judge Andrew Gilbart QC has stated precisely the reverse:
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.
Gilbart handed down sentences of 18 and 16 months in prison respectively to a man who had been given a looted TV to put in his car, and a man who had found and walked off with a bag of clothes. These crimes would normally be punished with a community sentence.

If it is true that what we are seeing in the wake of the riots is "a distorted version of our normal system" of justice, as BBC legal correspondent Clive Coleman suggests, then this is very grave. It suggests that justice is not being done, and this is more a cause for national shame, in my book, than the riots themselves. For Britain has always held itself up to be a model of the rule of law and of impartial and fair justice above all else (though this never seems to have extended to road crimes). Some of the sentences do indeed suggest that we are slipping into a state of repression.

Comparing some sentences that have been imposed for the "Facebook"-type riot inciting-crimes, in cases where the perpetrator has not actually done anything violent, with some imposed recently for killing using a motor vehicle, may lead one to conclude that we have an utterly irrational sentencing regime that values human life very low indeed. Some examples:

Afzaal Kahn found guilty of causing death by dangerous driving in October 2009 – sentence: two and a half years in prison (plus 5 years driving ban)

Keisha Wall found guilty of causing death by dangerous driving in February 2010 – sentence: two and a half years in a young offenders institution

Tony Smith admitted causing death by careless driving in August 2010 – sentence: 100 hours community service (plus one year driving ban)

Jill Corps admitted killing a cyclist though careless driving in February – sentence: 180 hours community service (plus one year driving ban)

Aryelis Angelis found guilty of causing death by dangerous driving in June – sentence: 8 months in prison (plus 2 years driving ban)

Jordan Blackshaw and Perry Sutcliffe-Keenan admitted "encouraging crime" in Northwich by posting a Facebook message last week suggesting there should be a riot there. Neither had any other part in disorder, and there was no riot in Northwich. Sentence – both got 4 years in prison. Nobody died, no-one was even hurt, no property was stolen or damaged as a result of these two men's actions. But they have been punished far more harshly than all of the killers listed above. All they did was to type some text on to the internet; one wonders how much the judge who imposed this sentence knows about what goes on on Facebook and the rest of the internet normally.

Communities Secretary Eric Pickles has said "exemplary sentences" were necessary and that people needed to understand the consequences of rioting, looting and disorder. This argument never seems to be applied to killer drivers. But then Pickles is a man with odd views. He thinks cyclists are people who "pedal up and down in rubber knickers".

The riots have created a clamour for extraordinary and senseless, disproportionate punishments, particularly when contrasted with the permanently light-touch approach of British law to the avoidable slaughter that goes on daily on our roads. Whether our courts resist this clamour or not is a test of our level of civilisation. We are not doing well so far.


  1. When the police and the courts start to administer justice in response to the public reaction to a particular crime or set of circumstances we end up with innocent people being sent to prison (Birmingham six, Guildford four) or even worse the police shooting innocent people on tube trains. Justice should be administered by those with sound judgement and a cool head.

  2. David: Thanks for posting this. Such a lack of proportionality needs to be pointed out.

    Britain's long history of having a relatively fair legal system is in jeopardy.

  3. I agree completely with your Argument B, context.

    Are courts not supposed to take into account whether a crime was premeditated or opportunist? Much rioting can be seen as opportunist, or at least it may difficult to prove premeditation in rioting cases.

    Courts should not bend to the will of politicians without properly enacted legislation.