Analysis: Are courts acting out of character?

Police officers outside Westminster Magistrates' Court

Comparing criminal sentences is an uncertain science and it is all too easy to reach a personal judgement based on a headline or an incomplete set of facts.

There really is no substitute for sitting in court and hearing the full story.

However, the riots have given the public an opportunity to see a vast amount of sentencing in a short space of time, and to compare and contrast the way in which different courts sentence seemingly similar crimes.

So, what has emerged?

Firstly, are the courts being consistent? Judges and magistrates have sentencing guidelines to work to. However, they are often described as "guidelines not tramlines".

In other words, sentencers can depart from them when the interests of justice require it. The riots were clearly an exceptional occurrence which justified a departure from normal guidelines.

However, different courts seem to have taken different approaches to the extent to which they depart. Compare the following two cases.

David Atto, 18, pleaded guilty to the theft of two Burberry T-shirts, worth perhaps £60. He told the police he had found them on the pavement. He pleaded guilty, had no relevant previous convictions, and was sentenced to a day in custody.

Then there was Nicolas Robinson, 23, of Borough, south-east London, who was jailed for six months for burglary. He took a £3.50 case of water from Lidl supermarket. He also pleaded guilty and had no relevant previous convictions.

Magnified system

It is true that burglary is more serious than theft as the perpetrator has to enter a building as a trespasser in order to steal, but the disparity in sentence for two offences of dishonesty committed during the disturbances is stark.

Sentencing is supposed to be consistent, so different people who commit the same offence receive similar sentences, whether they be in Birmingham, Bradford or Bournemouth.

The Sentencing Council drafts guidelines to promote consistency and the Court of Appeal also hands down guidance in appeal cases.

Start Quote

The riots have shown the public how complex and challenging sentencing is for the courts”

End Quote Jeremy Dein QC Defence barrister

The last week or so has thrown up apparent examples of similar offences committed by broadly similar defendants that have not been consistently dealt with.

Is this the system acting out of character, or is what we have seen merely a magnified version of what normally happens?

"Sentences are consistent as far as they can be," says defence barrister Jeremy Dein QC.

"The riots have shown the public how complex and challenging sentencing is for the courts and how difficult it can be to balance different considerations such as deterrence, public protection, punishment and proportionality.

"Judges and magistrates are individuals, and there will always be a margin of difference between them."

And what of the claims that sentences have been excessive? There is no question that some very tough sentences have been passed.

Guidance

On Tuesday, Judge Andrew Gilbart QC sentenced David Beswick to 18 months in prison following a guilty plea to handling stolen goods.

Debate in the press

Daily Mail columnist Stephen Glover says that "we should not be at all surprised that... much more emphasis than is usual is being placed on the deterrent effect".

In the Independent David Thomas QC also says the sentences are not surprising because "an offender who takes part in a large-scale public disturbance cannot expect to be sentenced as if his actions had been committed in isolation".

But Julian Baggini says in the Guardian the urgent question is "whether this swift shift to harsher punishment is compatible with a justice system that promises to treat everyone equally. It might seem obvious that the answer is no."

Beswick was given a flat screen television to put in his car and had no previous convictions for offences of dishonesty.

In normal times that kind of offence would result in a mid-level community order, but the judge made it clear that the riots justified the increased severity. Many will agree with him, some will not.

It is something of an irony of our system, and some may say a fault, that in extraordinary times, the Court of Appeal cannot lay down guidance before the courts begin to sentence. There is simply no mechanism to allow this to happen.

Instead, the courts depart from the guidelines, sometimes in different degrees, and a rash of cases go on appeal to the Court of Appeal. It is only then that real guidance is handed down.

Some of those sentenced have already indicated their intention to appeal. There will be many more.

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