The recent disorder: bail and sentencing – Obiter J

21 August 2011 by

Much controversy has been raised by the sentencing meted out to some of those charged with offences committed during the recent disorder.  Many cases have already been sentenced either in the Magistrates’ Court.  A lesser number of cases have been dealt with by the Crown Court.  (Given the short time between committal to Crown Court and sentence, the latter would be guilty pleas).

In the Magistrates’ Courts, the majority of the cases have been dealt with by professional District Judges (Magistrates’ Courts).  The use of “lay benches” has been very much the exception.  The reason for that is not entirely clear at this time.

The District Judges have taken a “tough line” both by way of refusal of bail and by sentences of imprisonment which are seen, in some quarters, as disproportionate to the seriousness of the actual offending – see BBC 17th August – “Some England riot sentences too severe.”  The stance taken by the courts reflects views expressed by David Cameronthat offenders should feel the “full force of the law.”

In one instance where a lay bench was used – (at Camberwell Green Magistrates’ Court) – it was reported that the Bench Chair stated that the court had been issued with a “…government directive…” to jail all riot offenders.  Such a directive would be unlawful and unconstitutional since it is the judiciary which has the responsibility for sentencing.  Subsequently, the Judicial Office issued a statement which said: – “The senior judiciary has given no directive in relation to sentencing for offences committed during the recent widespread public disorder.”

Refusal of bail:

Bail appears to have been refused in a high proportion of the cases.  The Bail Act 1976 begins with the proposition that the defendant has a right to unconditional bail.  This right may be lost when one or more stipulations set out in Schedule 1 of the Act apply.  For example, bail may
be refused if there are substantial grounds to believe that, if granted bail, the defendant would commit further offences.  Where bail is refused the reasons are to be stated in open court.

The fact that a particular offence (e.g. theft) took place during a period of disorder is NOT, in itself, a ground on which to base refusal of bail.  Refusal of bail has to be based on all the known information including the criminal record (if any) of the defendant.  How the individual responded to any previous grants of bail is always highly relevant.

Sentencing – some basic principles laid down by Parliament

1. For offenders aged 18 and over, the purposes of sentencing are punishment, reduction of crime (including reduction by deterrence), reform and rehabilitation, protection of the public, the making of reparation by offenders.  The court must have regard to these purposes – see Criminal Justice Act 2003 s.142.  Which of the purposes prevails will depend very much on the particular case.  In relation to offending during a time of serious disorder, it is likely that punishment and crime reduction will be uppermost in the sentencer’s mind.

2. The seriousness of an offence involves consideration of the offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused.  Previous offences may be considered as aggravating factors.  Criminal Justice Act 2003 s.143.  It should be noted here that a strong mitigating factor exists where the offender has no previous convictions.

3. The court must take account of a guilty plea – Criminal Justice Act 2003 s.144.  Sentencing guidance addresses how this is to be done – see Reduction for Guilty Plea.  A guilty plea at the first opportunity normally attracts a discount of one-third and there is a presumption that this will be given unless there are good reasons for a lower discount.

4. For a sentence of imprisonment to be imposed, the offence must be so serious that neither a fine alone nor a community sentence can be justified for the offence – Criminal Justice Act 2003 s.152.

5. Where imprisonment is imposed, it must be for the shortest term (not exceeding the maximum permitted) that, in the opinion of the court, is commensurate with the seriousness of the offence.  Criminal Justice Act 2003 s.153

6. The reasons for a particular sentence must be explained – Criminal Justice Act 2003 s.174.

7. The Sentencing Council is tasked with producing guidelines for sentencing.  Guidelines MUST be followed unless the court is of the opinion that it would be contrary to the interests of justice to do so – Coroners and Justice Act 2009 s.125.  If the court is of that opinion then, as part and parcel of explaining the sentences (CJA 2003 s174), the court must state why it is of that opinion – see CJA 2003 s174(2)(aa).

The absence of specific guidance:

The lower courts seem to have been left much to their own devices in determining how to reflect the disorder in sentences for property-related offending such as theft.  The Sentencing Council had not addressed this issue.  In relation to sentencing in the Crown Court, there was some Court of Appeal authority on sentencing which arose from riots in Bradford, West Yorkshire back in 2001 – see R v Chapman 2002 and R v Najeeb 2003. The offences deal with in those cases were serious public order offences.

As an example, consider a theft from a shop.  Sentencing, in the Magistrates’ Court, for the usual type of theft from shops is addressed at page 103a of the Magistrates’ Court Sentencing Guidelines.  It will be noticed that committing the offence during a period of disorder is not mentioned as an aggravating factor but the guidance makes it clear that the list of aggravating factors is not exhaustive.

It would be entirely reasonable to regard theft committed during a period of general disorder as more serious than such an offence committed at other times.  However, that begs the question of the extent to which the offence is aggravated and how it should be reflected in sentence. The Crown Court has begun to address the question.

The Crown Court at Manchester: guidance 

In relation to offences dealt with in the Crown Court, more specific guidance may now be taken from the remarks of the Recorder of Manchester (His Honour Judge Gilbart QC) in R v Carter, Beswick, Boyd, Gillespie-Doyle – 16th August 2011.  The learned Recorder described the events on 9th August and he spoke eloquently of how the cities of Manchester and Salford have improved in recent years – (see para 6).  The offences committed by these individuals could not be viewed in isolation from the general criminality of that night. Judge Gilbart stressed that he had not received any guidance from the government or others but he made it clear that he had consulted with other Crown Court judges as to the level of sentencing required.  In paragraph 18, he set out a table of sentencing ranges which defendants could expect.  The sentences are substantial and clearly aimed at deterring future offending.  The sentence ranges set out by Judge Gilbart are based on a defendant aged 18 or over, of previous good character who has been convicted after trial by jury.

The guidance in Judge Gilbart’s remarks are reflected in further sentencing remarks of His Honour Judge Atherton in the cases of R v Twemlow, Downy, McGrath, Coudjoe, Swarbrick and Winder – Crown Court at Manchester 18th August.    Judge Atherton pointed to the general fear which arose as a result of the widespread offending and he emphasized that, in such circumstances, the low financial value of a theft is not as significant a factor as it normally is.  Again, substantial sentences (based on deterrence) were imposed.  It is interesting that all of the offenders before Judge Atherton had pleaded guilty and had not been involved in organising, planning or active encouragement of offending.  All of them received a one-third discount for their guilty plea.

The Crown Court at Manchester is to be commended for issuing clear and principled remarks as to how the relevant principles of sentencing have been applied and about why the court considered it justifiable to depart from any normal guidance. It must be doubtful whether the Court of Appeal would adopt a substantially different viewpoint apart, possibly, from the extent to which previous good character can be taken into account?  Deterrence is a proper purpose of sentencing and in cases such as these the purposes of punishment, reduction of crime and protection of the public carry greater weight than the purposes of rehabilitation and reparation.

Appeals against sentence to the Crown Court from the Magistrates Court?

The Times (20th August) reports that lawyers are predicting a flood of successful appeals against “hysterical” sentencing.  This report notes that Judge Gilbart also dealt with an appeal from the Manchester City Magistrates’ Court (District Judge Khalid Quereshi) who had sentenced Ursula Nevin to 5 months imprisonment for receiving stolen clothing (a pair of shorts).  Judge Gilbart remarked that he considered it wrong in principle  that Nevin had been imprisoned.  She had not participated in the disorder.  She was ordered to do 75 hours of unpaid work.

Disgracefully, the Police had “tweeted” about her original sentence.  they later apologised for this.  It seems likely that there might be a considerable number of similar appeals from the Magistrates’ Courts to the Crown Court.  For instance, the MTPT blog discusses the case of Nicholas Robinson sentenced, by a District Judge, to 6 months imprisonment for stealing a bottle of water.  A considerable number of similar cases will exist.

Stiff sentencing was required for this offending but this must be based on the sentencing principles laid down by Parliament and on the specific facts of the particular case.  The remarks of Judge Gilbart and of Judge Atherton show that this was possible.  The offending took place in circumstances which lifted considerably the seriousness of those offences.

Perhaps the greater criticism about sentencing will be aimed at the Magistrates’ Courts which were, in the main, staffed by District Judges.  It is not easy to see how some of the Magistrates’ Court sentences can be justified when the maximum sentence possible in those courts is 6 months imprisonment.  It must be asked – how does an offender of previous good character and with an early guilty plea reach a sentence at the top end of the Magistrates’ Court’s powers?  The high incidence of refusal of bail is also a concern.  It is hard to believe that bail was not possible in more of the cases.

Doubtless more will be heard about all of this and more sentencing is yet to come.


This post has considered sentencing only in relation to offenders aged 18 and over.  For a short overview of sentencing of children and young persons see The Guardian – “England riots: how do judges go about sentencing young offenders.”

This post by Obiter J originally appeared on the Law and Lawyers Blog and is reproduced with permission and thanks


  1. Tim says:

    It doesn’t make any sense at all that the Bench Chair would just make up a story out of thin air about being issued with a government directive. It is not plausible that she would say such a thing without there being some element of truth to it, even if it was not as serious as was reported. It makes more sense to me to suppose that some sort of communication had been issued. I certainly think that there has been some sort of ‘undue influence.’

    A justice system that does things this way is nothing to be proud of. I agree with the first two commentators.

  2. Ismail Bhamjee says:

    I, Ismail Abdulhai Bhamjee of 196 Tiptree Crescent, Ilford, Essex IG5 OST
    Tell 020-8252-6462 do say that the Prime Minister David Cameron does not practice what he preaches-

    There is an Offence of Official Misconduct in Public Office, and Attempt and Obstruction of Justice, where there has been Silence for a considerable number of years

    The Same should apply to Any Minister of the Crown- Since Section 66 to 72 of the Town and Country Planning Act 1971 was repealed under Schedule 12 of the Housing and Planning Act 1986.

    There are double Standards-

    Those who damage or steal property belonging to any other person, they should be punnished, be ordered to pay damages and compensation for loss of income.

    I thank you in advance and wait to hear from you

    Yours Faithfully

    Ismail ABdulhai Bhamjee

  3. Tara Davison says:

    The case of Ms Nevin a mother of two young children highlights the serious injustice in the sentencing. Ms Nevin’s lodger was involved in the looting and gave Ms Nevin a pair of shorts which she foolishly accepted.

    This young woman and her two children were subsequently put through a nightmare by a magistrate who appeared to be equally foolish allowing political views to influence his judgment.

    This has done a great deal to harm the public’s view of the impartiality and independence of the judiciary. I am very pleased Ms Nevin was quickly released on Appeal and I hope this helps the ‘people’ to retain faith in the criminal justice system.

    Cases like that of Norman Scarth the 85 year old World War 11 Veteran who was jailed for 6 months ,for taping in court because he was hard of hearing, is however a far greater injustice.

    Jail must be kept for Serious offenses and it is time the Public Interest was used in every single case. That means what the Public would want. No-one, except for some extreemists, want their fellow men and women who have harmed no-one to go to jail and have their lives ruined.

    1. It was not a magistrate who sentenced her to 5 months custody. It was a district judge called Khalid Qureshi, Although the media reports the sentences being imposed in magistrates courts, nearly all the riots cases have been dealt with by district judges, who are highly paid whereas magistrates are voluntary.

      I do not believe any magistrate would impose such a high sentence on Ms Nevin or would have imposed a custodial sentence on her at all. The district judges have been politically influenced and have departed wildly from sentencing guidelines in many cases.

      The appeal court judge not only discharged the custodial sentence but gave Ms Nevin a low level of unpaid work under a community order. This was a huge reduction on the original sentence and gave a very clear message to the district judge. Whether or not that message was received, we do not know.

      1. Tara Davison says:

        Thank you you are right of course it was a district judge.

  4. Penny Booth says:

    I am not arguing for no punishment, and some of this behaviour is appalling – I would argue for JUSTICE and there seems to be some evidence that the sentences have been too severe. I, too, am uncionvinced that proper rules have been folllowed.

  5. Alison says:

    As I commented on the original blog post, David Cameron said this in the House of Commons, “Anyone charged with violent disorder and other serious offences should expect to be remanded in custody, not let back on the streets; and anyone convicted should expect to go to jail.

    Courts in London, Manchester and the west midlands have been sitting through the night, and will do so for as long as is necessary. Magistrates courts have proved effective in ensuring swift justice. The Crown courts are now starting to deal with the most serious cases. We are keeping under constant review whether the courts have the sentencing powers they need, and we will act if necessary.”


    I am not entirely convinced politicans have remained outside usual judicial processes.

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