Vera Baird | The Guardian | 18 August 2011
When people are rightly angry it's the duty of the courts to punish more severely – but not to do as the government tells them
National revulsion and popular demand for punishment are dangerous things. They licensed the rule-bending that miscarried justice in the 80s, for the Birmingham Six and Guildford Four. In the miners' strike, once Margaret Thatcher had called the NUM "the enemy within", it was next to impossible to get them honestly policed or fairly tried.
How far from that danger re-emerging are we now when David Cameron asserts that everyone involved with rioting, however peripherally, should expect to go to jail; 100,000 sign a petition for those convicted to lose their benefits and councils intend to evict people who live in the same house as culprits, just for being their brother, sister or grandparent?
The Guardian reported this week that magistrates' clerks had "instructions" from a "senior clerk" to advise the bench to disregard all sentencing guidelines and jail every riot defendant. This is apparently a policy directive from the courts service, the government department that administers the courts. It is not from the higher judiciary, who speedily distanced themselves from it.
We are only aware of it because the chair of Camberwell Green magistrates, Novello Noades, blurted it out. She called it a "directive" but retracted the description later when presumably somebody reminded her that she is supposed to be an independent member of the judiciary.
Although the Ministry of Justice denies responsibility, the directive represents the hostility of much of the public, amplified by government spokespeople, directed specifically to influence the courts. When the community is rightly angry it is the duty of the courts to punish more severely. Serious custodial sentences must follow for "rioters" but, whatever the prime minister says, the judiciary's role is to dispense individual justice. Magistrates must distinguish the professional criminal from the easily led and every shade of culpability in between – and make the punishment fit the criminal.
This "directive", taken at its fullest, is an attempt to stop that. It, in effect it says that fines and community penalties are abolished for rioters and suspends the carefully constructed sentencing process comprised in the guidelines, which would inevitably result in some non-custodial penalties.
There is ample sentencing allowance in all of the guidelines for the most serious case. Some of the most relevant were formed after the Bradford riots in 2001. They are promulgated by the sentencing council whose president is the lord chief justice. It is made up of judicial, practitioner and academic experts. It sets out to be comprehensive and to bring consistency while maintaining the independence of the judiciary.
Furthermore, its definitive guidelines are binding. For instance, for handling stolen goods of less than £1,000 the usual starting point is a fine or low-level community penalty. Those options widen to include 12 weeks' custody if aggravated by the way the goods were obtained. Here they were mainly got through extremely serious and violent burglary. Harm done and personal culpability are the watchwords followed by looking carefully at any mitigation. An early guilty plea, showing remorse and saving trial costs, can justify a discount of up to a third.
Step by step, this carefully guided analysis produces a sentence compatible with legislation and appropriate to the five purposes of sentencing: punishment, protection of the public, deterrence, reform and rehabilitation and reparation to the public.
It seems sinister that there was an attempt to dislodge the lawful process in these cases and substitute blanket imprisonment.
If the separation of powers means anything, it is that the courts are independent of government. Excessive sentences over the past few days – including five months' imprisonment for a single mother for handling a pair of stolen shorts, six months' for a father receiving two tennis rackets and many children sent into custody – make clear that the directive has had its effect. Serious crime requires serious punishment, but that is always the case.
Indeed, the first crown court sentences have been predictably severe. Perhaps it is important to make a point, even if defendants such as those likely to be known as the Facebook Two win on appeal. The less harsh sentences came from the Manchester judge who announced, possibly in solidarity, that he too was exceeding the guideline.
So what are the prospects of future contested trials being fairly considered in this context of some malleable lay magistrates apparently being prepared to accede to secret agendas? Public craving for convictions will be an open secret. The historic miscarriages of justice were caused by just such an impulse and there is another lesson from history.
During the miners' strike it was very difficult to get fair acquittals for strikers at the magistrates' court. After the strike, it was hard to get juries from some mining areas to convict. The latter was the community's revenge for the former – what it saw as dishonest policing and a biased judiciary.
Although the riots brought a terrifying glimpse of physical chaos, injustice is almost as frightening.