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UK riot sentences, judicial independence and Cameron’s dog whistle

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The UK riots sentences show what unpredictable times we live in. When first visiting the sentencing issue Alrich’s Weblog suggested the rioters would all be home by Christmas. For the most part this remains literally true, but the argument was that magistrates’ courts were restrained from issuing harsh penalties by statutory guidelines on many of the cases likely to come before them.

This seemed to be the case to begin with. The odd rioter got his day in court and his day in jail then headed off home. The London Evening Standard declared: “Riot police fury at soft sentences” but the story barely lasted a couple of editions. From then on it was all about the fightback, the new powers for police and courts, the draconian prison sentences for nicking bottled water, picking up stuff in the streets, trying to start a riot through Facebook. The gods are athirst and have apparently made it pretty clear to magistrates just how thirsty for blood they are. The tumbrils are rolling.

Now all the talk is of judges overstepping the mark and politicians too – egging them on to tougher and tougher sentencing of rioters. The words of the prime minister, David Cameron, are cited. In Parliament he declared: “When events such as these take place, it is perfectly possible for courts to set some exemplary sentences, to send out a clear message.”

On the four-year sentences for the Facebook Two, he said: “What happened on our streets was absolutely appalling behaviour and to send a very clear message that it’s wrong and won’t be tolerated is what the criminal justice system should be doing.” He added: “It’s up to the courts to make decisions about sentencing, but they’ve decided to send a tough message and it’s very good that the courts feel able to do that.”

Both comments seem to have been rather carefully worded. There are constitutional niceties to be observed, after all. As former Liberal Democrat leader Sir Menzies Campbell said, politicians should not be “either cheering or booing in the matter of sentencing”. “It is an important part of our constitutional principles that political influence is not directed at the judicial system.”

It is one of those constitutional principles honoured more regularly in the breach than the observance. There have been long-standing concerns in the judiciary that its members are subject to excessively robust criticism by politicians for some of their judgments – contrary to the notion of judicial independence.

Like most constitutional principles in Britain, nothing much official can be found in print to explain exactly where the limits lie between a politician representing the concerns of his or her constituents on a matter of public interest and blatant interference with judicial independence. In 2007 the issue was thrashed out in the House of Lords select committee on the constitution. It produced a report, Relations Between the Executive, the Judiciary and Parliament, which looked at a particularly fraught case.

‘The key to harmonious relations between the judiciary and the executive is ensuring that ministers do not violate the independence of the judiciary in the first place’ – Lords constitution committee

In 2006 Craig Sweeney was sentenced to life imprisonment for abducting and sexually assaulting a three-year-old girl. But the tariff set for his imprisonment, which meant he was eligible for parole after 5 years and 108 days, caused outrage.

The Home Secretary John Reid attacked the sentence as “unduly lenient” since the tariff “does not reflect the crime”. He asked the Attorney General, Lord Goldsmith, to examine the case. Goldsmith did so but insisted he would not be influenced by the mounting media outrage over the “deluded, out-of-touch and frankly deranged” judiciary (Daily Express). The prime minister, Tony Blair, let it be known he backed Reid, and Jack Straw, Leader of the House, declared it was “perfectly appropriate” for Reid to have intervened.

But Lord Morris of Aberavon, the former Attorney General, declared the constitutional position: “Our courts are not run by government ministers … As far as sentencing is concerned, they [judges] are independent. If he [Reid] has a concern … he can amend the acts of Parliament.” Judges act according to the law; the law provided for the 5-year tariff; if Parliament does not like it, it is supreme but only in the sense that it can pass legislation to change the position.

The upshot of the row was that the constitution committee made this recommendation:

The key to harmonious relations between the judiciary and the executive is ensuring that ministers do not violate the independence of the judiciary in the first place. To this end, we recommend that when the Ministerial Code is next revised the Prime Minister should insert strongly worded guidelines setting out the principles governing public comment by ministers on individual judges.”

An edition of the Code had only just been issued so the committee graciously suggested the amendment be put into the next edition. Straw said only that he would consider it, but the new edition came in with the new Government in May 2010 – and nowhere is there to be seen any reference to how ministers should restrain themselves in public comments on judges. Nor is there in the Cameron version issued in 2015 (pdf).

The situation regarding sentencing of rioters is rather different from the Sweeney case. The prime minister seems pretty happy with the way the magistrates and judges are responding. Cameron’s words quoted above are rather measured and fall short, on the face of it, of the prime ministerial interference that some allege. He is carefully stating facts as he sees them: the courts, as he says, do seem to be sending a strong message; it is their right to do so; they can give “some exemplary sentences”.

But perhaps these are weasel words, dog-whistle phraseology intended to bring the judiciary to heel? Certainly Cameron has a record of not being quite so restrained when he is not happy with the judges. Which is perhaps why he did not wish to take up the constitution committee recommendation regarding the Ministerial Code.

Let’s see how things turn out when the waves of appeals come on tap and rioters emerge, blinking in the sunlight, freed from their durance by judicial second thoughts.

But more importantly, let’s see what happens when the Government takes a serious look at the crown court costs, the Court of Appeal expenditure and the bill for all those consigned to prison. When it finds its thirst for retribution has been financially slaked – and when “some exemplary sentences” turn out to be quite enough. Will Cameron be able to stop the tumbrils rolling?

A judge’s sentencing remarks are here

An analysis of the law on sentencing and bail applications as it relates to the riots is here

A back-of-the-envelope look at the statistics on riot arrests is here

About alrich

Journalist and blogger on legal and financial/economics issues

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