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Sentencing policy – it’s mandatory to think inside the box

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In the debate on mandatory sentences Iain Duncan Smith, the work and pensions secretary, made a rather odd contribution on BBC1’s Question Time the other day. He explained the sort of people who end up in British jails: drug addicts, people with a history of being sexually abused, people in a family cycle of violence who end up as violent offenders. And the answer to the deep-seated social problems IDS had identified? One was expecting a brief flash of compassionate Conservatism, but no. Lock ’em up, as per the new tougher sentencing policy.

Asked whether the jail system, groaning with nearly 88,000 inmates, could cope, his answer was equally simple: “It’ll have to”.

Conservative thinking on crime seems to amount to putting it in a box and throwing away the key. There are criminal elements out there; the quicker we can get them into the prison system, the better.

Take the massaged message on criminal involvement in the UK riots. The statistics coming out of Home Office research, based on data available up to mid-October, indicated just over 75 per cent of those coming before courts had some sort of criminal conviction. It’s the sort of “fact” that is enough for the Government to blame pure criminality rather than austerity or the general long-term grinding disadvantage that the poor suffer from. “These figures confirm that, in the vast majority of cases, existing criminals were out in force during the disturbances in August,” said Criminal Justice Minister Nick Herbert.

But how meaningful is the 75 per cent figure? Statisticians are likely to be less convinced than Herbert that it shows anything at all since any statistical figure has to be compared with another, usually a random sample, to adjudge its significance. Seventy five per cent on its own is simply a big number, not a meaningful statistic.

‘These figures confirm that, in the vast majority of cases, existing criminals were out in force during the disturbances in August’ – Nick Herbert

For a start, how many people might you expect to have had a conviction in the normal run of things? Remarkably it looks likely that a quarter of men have a conviction: “It is estimated that 23.5 per cent of males in England and Wales in the age range 10 – 52 in 2006 had a conviction” (Conviction Histories of Offenders, Ministry of Justice).

But rioting is a young person’s game and younger people have fewer convictions than the average 52-year-old in the autumn of his life of crime – and fewer young people have any convictions at all. Half those convicted so far in the riots were aged 20 or below. Nevertheless there are reasons to think that, on a quiet night, a random trawl in the riot areas among the potential riot demographic would produce nearly 20 per cent of men and boys with previous convictions (see back of the envelope figures below).

But this was not a round-up of random people – or even of random rioters. The Home Office figures are based on 4,000 arrests and 2,000 court appearances. What we do not know is how many actual “rioters” there were on the streets on those five August days. (By “rioters” we must include all those involved in riot-related offences such as burgling shops or individual acts of violence since “riot” is hardly ever prosecuted – as explained here.)

Since riot-related offences ranged from arson down to stealing a bit of chewing gum or being given items of looted property, instinctually one feels those involved were far more than 4,000. Some will have been racked with guilt and handed themselves in, others might have been dobbed in by their parents, hoping for leniency from magistrates. Numbers may have been recognised by neighbours on some of the footage reproduced by the newspapers. But for the most part they will have been caught by good old-fashioned police work.

And police are particularly good at arresting criminals – that is to say, known criminals with police records. Not surprisingly the huge mass of CCTV and other image-evidence from the riots has been edited down to the best mugshots and placed on computer discs for police officers to sift through to find out whether they recognise anyone. And as they tend to recognise people they have come across in their professional capacity, it is “existing criminals” who are most likely to hear that firm knock on the door.

So we can only guess what the real proportion was of those involved in the riots who were “existing criminals” – but we can be pretty sure it was less than 75 per cent.

The point of this is not to downplay the criminality, which in many cases was gross, nor to suggest that the “aggravated shopping” of the riots offences doesn’t really count in a world where the boss of the WPP ad agency can say his basic salary of £1m is “very low“, or where there is a class of people who can trash commercial establishments and simply wave a Coutts cheque so the problem goes away.

The point is that the real shock of the riots might be less that it was orchestrated by gangs (the figures show 13 per cent of those convicted had gang affiliations) and inveterate criminals than that it involved fairly ordinary young people living under not so ordinary social pressures and always closer to crime than we would like to think. Just putting them in boxes marked criminality is not enough, as even Iain Duncan Smith probably acknowledges in his heart.


The figure for previous convictions among juvenile males is 2 per cent, for men aged 20 it is about 4.5 per cent rising to about 13 per cent for those aged 30. So a round-up of average young men might produce roughly 9 per cent with previous convictions.

But the other half of those before the courts for riot related offences were older than 20 and we are talking about urban and inner city areas where the “normal” crime rate would be higher. So it is likely that a larger proportion of such people would have convictions, perhaps a third above the average rate. The figure would be further skewed upwards by normally higher crime London where most of the riot offences occurred (68%). So, on a logical guesstimate, taken at random, the sort of men who might riot (50% younger than 20, 50% other ages) living in the riot areas might produce getting on for 20 per cent with previous convictions.

The argument above suggests the captured and convicted rioters will have come disproportionately from this 20 per cent of young to youngish former offenders.

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.” Read the rest of this entry

UK riots sentencing: will the rioters be home by Christmas?

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As the UK riots wane, a new battleground is opening on the issue of “soft sentences” for the rioters.

“I’m looking to our courts to give the kinds of sentences that will make them quiver and weep in the dock,” declaimed journalist and polemicist Kelvin MacKenzie on Newsnight. In reality, of course, he is ostentatiously setting himself up to be disappointed so he can later fulminate against the lily-livered fops who preside over our criminal courts sending the criminals and thugs home with the lightest of pats on the wrists.

One judge has got his defence in first. District judge Tim Devas told Nottingham magistrates’ court:  “If there are any criticisms of sentences handed down by the courts, if you want anyone to blame, then go and speak to the government. Do not blame the judges or the magistrates who do their jobs professionally and abide by the guidelines set down.”

It’s worth looking at the sentencing guidelines issued to magistrates – if only to massage down Kelvin’s overheated expectation of what the full rigour of the law will entail.

The document notes that since 2008: “For the first time, there is a statutory obligation on every court to have regard to this guideline in a relevant case and to give reasons when imposing a sentence outside the range identified.” As Judge Devas says, magistrates’ courts are bound by the guidelines.

The powers of magistrates’ courts are limited to issuing a range of fines, community sentences and no more than six months’ detention. Generally only half the sentence is served so most rioters will be out by Christmas – by which time, all being well, the shops they helped to trash will have replenished their shelves. The courts can consider a further one third off for guilty pleas. It all adds up to something rather less than quiver-inducing for the average hardened thug or criminal.

For most of the cases arising out of the riots, if magistrates feel their powers of punishment aren’t sufficient they can send the worst offenders for trial or for sentencing before a judge at the crown courts. But there will be no great move to get lengthy crown court proceedings going except in the most serious cases since the court system is already showing the strain with only 1,000 or so arrested. Defence lawyers are likely to advise their clients to plead guilty before magistrates and then pile on the mitigating factors – perhaps variations on: “The prime minister says I’m living in a sick society; what do you expect?”

Riot: “Where 12 or more persons who are present together use or threaten unlawful violence for a common purpose 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, each of the persons using unlawful violence for the common purpose is guilty of riot” – Public Order Act 1986 S. 1 (1)

The offence of riot itself is an indictable offence so is heard at the crown court and carries a maximum 10 years. It would be extremely difficult to prosecute and would tie the courts up for long periods. Those involved in the riots are more likely to be dealt with for lesser offences that can be heard in magistrates’ courts, for example “violent disorder” (Public Order Act S. 2), which involves three or more people. It carries a maximum six-month sentence on summary conviction (ie at the magistrates’ court) in “rare cases involving minor violence or threats of violence leading to no or minor injury, with few people involved and no weapon or missiles”. Otherwise it is up to five years on indictment.

Many of the “looting” cases will be dealt with as “burglary of a building other than a dwelling” in which:

“having entered any building or part of a building as a trespasser he [the offender] steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm” – Theft Act 1968, S 9  (1) (b).

The guideline says: “The starting points and sentencing ranges in this guideline are based on the assumption that the offender was motivated by greed or a desire to live beyond his or her means.” The papers are packed and the blogosphere bulging with attempts to explain the “motivations” of the riots, but as far as magistrates are concerned, greed is good enough.

The loss to the owner and the impact of that loss is more important than the value of the items. “This may be particularly important where the value of the loss is high in proportion to the victim’s financial circumstances even though relatively low in absolute terms.” This leaves open the possibility of coming down harder on those people who have destroyed the livelihoods of small shopkeepers than those who looted JD Sports or Swarovski – unless a level of criminal professionalism was shown in stealing easily saleable items.

Furthermore “harm in the form of public concern or erosion of public confidence” should weigh against the offender – certainly a big issue in the riots.

Offenders may, however, appeal to the magistrates’ kindlier side since “the fact that an offence has been committed in desperation or need arising from particular hardship may count as personal mitigation in exceptional circumstances”. So those found carrying out big bags of rice or their weekly shopping at Iceland might offer “desperation” as a mitigating factor.

The guidelines then suggest a medium level community order as a starting point for items worth up to £2,000 or 18 weeks’ custody for more expensive items up to £20,000. Anything more and it’s straight to the crown court where 10 years would be the maximum prison sentence.

There will be a number of arsonists caught, one hopes, and arson is one of those legendary capital crimes (especially in HM dockyards). Even now it can carry a penalty of life imprisonment when tried at crown court, especially when life is put at risk – but in less serious cases it can also be tried by magistrates and hence hit the six-month ceiling. Moderate damage for a first offender? You’re looking at between 12 weeks to the full six months in custody.

Damage to emergency equipment or “public amenity” could push up the penalty – but if the perpetrator was simply being reckless, that will pull it down. If affray, violent disorder and putting people in fear were involved – all very likely in these cases – then it will be off to crown court with life sentences on the cards.

There is no doubt that the public will be out for blood in the next few months. The few examples here show how far magistrates’ courts are limited in what they can do – and how complex working out sentences is. And that’s without even taking account of the fact that many cases will be heard in juvenile courts with their own levels of complexity – and to some, inadequate punishment.

The disappointment that Kelvin MacKenzie and his followers will doubtless feel as the sentences come through may well be a springboard for reassessment of the sentencing structure. But what is driving government policy now is deficit reduction. UK prime minister David Cameron is standing firm on money-saving police cutbacks. Although we hear little of Ken Clarke’s “50% off for a guilty plea” proposals any more, it seems unlikely that the government will do anything that involves costly increases in prison stays for rioters or any other criminals.

A reassessment of the issues in this posting in the light of more recent events is here

The Guardian is publishing constantly updated data on the court cases and sentences here 

An analysis of how the guidelines were used to arrive at a six-month sentence for stealing a bottle of water is here

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