The recent disorder: bail and sentencing – Obiter J

21 August 2011 by Guest Contributor

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.”

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.

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:

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.

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.
Summary

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