The death of Mark Duggan by police in Tottenham on 4 August 2011 sparked demonstrations and then four days of riots in London, with looting spreading to other large cities such as Manchester, Liverpool, and Birmingham. Explanations for the riots include poor policing, social media, excessive consumerism, spending cuts, and social exclusion. The question as to whether those involved were opportunists, criminals, or protesters remains subject to debate with little prospect of final resolution. The details of the riots and the possible causes have been well documented and this article focuses on some of the legal aftermath.
According to the Ministry of Justice (MoJ) who published a statistical report for offences relating to the public disorder 6-9 August 2011, 1,715 people had appeared before the courts in relation to these events by 12 September. Of these, 21% were juveniles and 31% were 18-21 years old.
As part of his contact with practice, Nick Ross, Senior Tutor on the Bar Professional Training Course (BPTC), represented a number of defendants who were suspected of being involved in the riots. He said, “what struck me as very interesting is that from what I saw not many of the defendants were actually being charged with the offence of Riot. In order to prove an offence of Riot under section 1 of The Public Order Act 1986 the prosecution have to provide evidence of at least 12 or more persons present together using unlawful violence. As we saw from the live television pictures, the police kept themselves at a distance from the ‘rioting’ crowds and many of the people who may have actually been involved in a riot within the statutory definition were difficult to identify. As an alternative charge, the police were able to scan through many hours of CCTV evidence to identify suspects who were seen to enter premises to carry out burglary or to arrest those suspects for handling stolen goods. In the many days after the riots, most of the suspects had been charged with offences under the Theft Act 1968, rather than the Public Order Act 1986”.
The MoJ statistics bear this out since the report states that the offences before the court were mainly Burglary (38%), Violent Disorder (27%), Theft (13%), Robbery (2%), and Criminal Damage (2%). The remaining offences covered a wide range of offences, but no single offence within this group accounted for more than two per cent of the people brought before the court. Violent Disorder is defined under section 2 of the Public Order Act 1986 and is where 3 or more persons who are present together use or threaten unlawful violence and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety. Whilst this amounted to 27% of the offences before the court, it does seem that a large proportion of offences charged relating to the disturbances were in fact offences of dishonesty.
Magistrates’ Courts and solicitors had to work around the clock to deal with the sudden increase in numbers before the courts. Critics fear that defendants were forced though the system at speed to meet the public and political desire for retribution, raising concerns about decisions on bail and on the sentences being imposed. According to the MoJ report, two thirds of those appearing before the court were remanded in custody at the first hearing. This compares with ten per cent of all indictable cases in 2010. In light of the fact that at the time it was unknown how long the riots would continue, practitioner Nick Ross observes that the prosecution’s main objection to bail would have been the ‘risk of commission of further offences whilst on bail’, under the Bail Act 1976, Schedule 1, Part 1. He explains that, “many of the suspects who applied for bail would have been refused because of the immense fear across the country of the riots starting again, and so suspects were remanded to prevent the risk of further offences being committed. Several weeks later, however, when the risk of riots had aborted, it would have been perfectly legitimate for suspects to re-apply to the Magistrates’ Court or to the Crown Court for bail on the basis that there was no longer a risk of commission of further offences as the streets had returned to a sense of normality”. Of course suspects should not have been refused bail on the basis of a general fear of the commission of further offences alone, but on the basis of their particular circumstances that the court needed to examine. How much this actually took place is difficult to say, but practitioners do report that defendants produced before the courts on offences relating to the riots seemed to have been almost routinely remanded into custody.
At the time of the MoJ report, of the 315 sentenced in the Magistrates’ Court, 176 had been sentenced to immediate custodial sentences, with an average custodial term of 11.1 months. In the Crown Court, 89 people had been sentenced of which 79 received immediate custodial sentences, the average being 18.5 months.
However, there has been controversy about some of the sentences passed in the Magistrates’ Court where no specific guidance had been given about how to reflect the riot context of the offences before the court. Common sense suggests that an offence committed as part of a significant incident of public disorder should receive a more serious penalty, but the question is how much? Sentences of concern include a defendant at Camberwell Green Magistrates’ Court with no previous convictions who was jailed for six months after pleading guilty to stealing bottles of water worth £3.50 from Lidl in Brixton, and a mother of two in Manchester who was jailed for five months having admitted accepting a pair of shorts looted from a city centre shop by a friend. The latter sentence was later set aside on appeal, deemed wrong in principle and 75 hours of unpaid work imposed instead on the basis that she had not actually participated in the riots. Although most of the cases in the Magistrates’ Court were dealt with by district judges, it is of concern that it was reported that a lay bench in Camberwell Green Magistrates’ Court stated that it had been issued with a ‘government directive’ to jail all riot offenders. In response, the Judicial Office was forced to issue a statement to make it clear that no such directive had been given.
Whilst Crown Court judges did have some past appeal authority on public disorder offences, HHJ Gilbart QC, who dealt with the first riot case in Manchester in R v Carter & Others (16 August 2011), helpfully set out a scale of sentences for offences relating to the riots. In the absence of any guidance from the Government, this had been drawn up on discussion with the other judges at Manchester Crown Court. The scale relates to the sentencing range for Defendants of 18 or more who are of good character and are convicted after a trial. HHJ Gilbart explained that the ranges given were deliberately wide so as to cater for the wide range of circumstances that can occur. In R v Alagago & Others (25 August 2011) the first case on the riots in London at Inner London Crown Court, HHJ Chapple said that whilst it was appreciated that HHJ Gilbart QC had not been seeking to lay down guidelines as the term is understood when referring to the Sentencing Council or Court of Appeal, he had nonetheless provided a helpful indication to local practitioners of the way in which the Manchester judiciary were jointly thinking. As such, his comments were of persuasive authority to judges in the Crown Court at other locations. Certainly the sentencing scale set down would have been of some help in promoting consistency in sentencing in the absence of any other clear guidance. At the time of writing Carter is listed on 27 September 2011 at the Court of Appeal.
It will take some time for the dust to settle. The reasons for the riots will no doubt be examined even further and the blame cast in various directions. MoJ data suggests that those taking part in the riots were not just those with past criminal records and it seems that the disturbances were at least as much about dishonesty as about violence. The courts have been doing what they can to clear the huge backlog of riot related cases in the context of overstretched resources. Although described by the media as ‘frenzied’ sentencing, it remains to be seen how many appeals against sentence are brought and whether in fact these are successful. Were the sentences imposed too tough or are they a necessary deterrent? One hopes that forewarned is forearmed and that more formal guidelines will be now set down for courts at all levels to deal with any future disturbances should they take place on a similar scale.
By Sonia Kalsi, Senior Lecturer, Bloomsbury
Ministry of Justice Criminal Justice & Sentencing statistics
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Fear of rough justice as courts rush to process riot arrests
Anonymous magistrate ‘Bystander’ argues for due process for the rioters
Summary of sentencing cases
Charon QC, Lawcast 192: John Cooper QC on the sentencing of rioters and looters (podcast)
Law and Lawyers Blog - The Recent Disorder: Bail and Sentencing