Magistrates were told to send rioters to crown court, emails show

Owen Bowcott | The Guardian | 14 September 2011

Emails sent to justices' clerks after August riots raise questions about judicial independence and the use of blanket guidance

Magistrates were urged to abandon sentencing guidelines when dealing with rioters last month because "nothing like this was envisaged", according to court documents released to the Guardian.

The text of two controversial emails circulated to justices' clerks immediately after August's disturbances raises questions about judicial independence and the use of blanket guidance irrespective of individual cases. One human rights group described the emails as "disturbing".

The messages appear to betray a sense of confusion – verging on chaos – behind the scenes as hundreds of suspects arrested for looting and violence were processed in late night emergency sittings.
The documents, written by a senior justices' clerk in the London regional office of Her Majesty's Courts and Tribunals Service (HMCTS), were released by the Ministry of Justice following a freedom of information request from the Guardian.

They were sent out on successive days at the end of the week in which rioting had started in Tottenham, north London, following a police shooting, before degenerating into widespread looting as it spread across the capital and other cities.

The emails were sent to justices' clerks, who sit alongside magistrates providing guidance on the law and sentencing recommendations. The first, addressed "Dear all", began: "I should be grateful if you would ensure that the following advice is cascaded to every member of your legal team as soon as possible.

"The sentencing guidelines cannot sensibly be used to determine the sentence in cases arising from the recent disturbances/looting. When the guidelines were written nothing like this was envisaged."
Most of those arrested for looting had been charged with "commercial burglary", it noted. "The general advice from the higher judiciary is that we will not be criticised if we return these … If in doubt, commit to the crown court."

Some of the words in the first email were missing. The second message read: "Apologies for the fact that the email … sent yesterday is confusing and frankly incoherent. The intention was that you should advise magistrates to commit to the crown court cases of commercial burglary, or handling … or violent disorder arising from the recent disturbances.

"There is a general acceptance that what occurred earlier this week is not covered by the sentencing guidelines and it will be very much the exception that such cases are sentenced in the magistrates courts …Hopefully before too much longer we may get some guideline cases."

Commenting on the emails, Sally Ireland, the director of policy at the civil liberties group Justice, said: "Justices' clerks can give directions to assistant justices' clerks under the Courts Act; however, the content of the email is disturbing. The application or disapplication of sentencing guidelines should be a matter decided on a case by case basis."

She also questioned the term "higher judiciary", saying: "In what way did they give this general advice? The higher judiciary does not have a role in allocation/sentencing by magistrates, except in the case of appeals and guideline judgments."

Paul Mendelle QC, a former chairman of the Criminal Bar Association, said: "The idea that established Court of Appeal authorities can be set aside or ignored by the secret advice from an anonymous civil servant strikes me as undemocratic at best and unconstitutional at worst.

"Blanket advice to magistrates to deal with all cases in one particular way – commit to crown court – regardless of the facts of the individual cases might be seen as an unlawful fetter on their discretion."
At the time the emails triggered alarm on at least one bench, prompting questions about magistrates' independence.

The week after the riots, Novello Noades, the chair of Camberwell Green magistrates court, in south London, claimed the court had been given a government "directive" that anyone involved in the rioting should be given a custodial sentence. She later retracted her statement and said she was mortified to have used the term "directive".

It has been generally accepted in courts in the legal and judicial world that participation in violent riots and looting should be deemed an aggravating factor, leading to harsher sentences than for theft committed as shoplifting.

John Thornhill, chairman of the Magistrates' Association, said: "Magistrates and legal advisers work as a team in court with the legal advisers having a role in law to advise the magistrates on all matters relating to the law and the magistrates making independent decisions based on any advice given ... this note refers to the issue of mode of trial decisions. Magistrates have to decide whether the maximum sentence of six months custody is sufficient for a single offence and if not then the matter is sent to the crown court.

"It is not in any way outside guidelines as statute allows the judiciary to raise the seriousness of an individual offence after taking account of the harm caused, the culpability of the offender and any aggravating features such as an offence committed during grave disorder."

Some sentences handed down immediately after the riots in August were criticised as being off the judicial scale. The former director of public prosecutions Lord Macdonald warned courts risked being swept up in a"collective loss of proportion". One person got six months for stealing £3.50 worth of water. Two youths were jailed for four years each for inciting riots on Facebook that never took place. Some sentences have since been overturned.

Unusually, the Ministry of Justice provided an accompanying explanation with the emails, rebutting any suggestion that magistrates had been inappropriately influenced by government officials or that the independence of the judiciary had been compromised. "HMCTS is not involved in any guidance justices' clerks choose to give to magistrates, as this guidance is given whilst acting in a quasi-judicial capacity," it said.

"It did not contain any direction by HMCTS or the Ministry of Justice on how anyone should be sentenced. Nor were there correspondence or conversations with the justices' clerks on any guidance prior to its issue."

The statement continued: "We believe there is a strong public interest in ensuring there is confidence in the independence of the judiciary and we do not want this to be undermined by a perception the government has inappropriately issued any directions as to the types of sentences which should be handed down."

According to the latest MoJ figures, Some 1,715 riot-related suspects have so far appeared before magistrates courts, two-thirds in London.

A lawyer in London

The Law Report | 23 August 2011

Meet London defence lawyer Bruce Reid and his rioting clients: the 20-year-old pregnant mum who stole a vacuum cleaner, the middle class student who's jeopardised a promising career over some stolen clothes, and the bank clerk arrested in a ransacked mobile phone store.

Listen to interview with Bruce Reid by Erica Vowles.

Sentencing remarks: The Queen v Stephen Carter, David Beswick, Linda Mary Boyd, Michael Gillespie-Doyle

Public Enemy's Chuck D: UK riots signify 'new world order'

Michael Hann | The Guardian | 9 September 2011

Veteran rapper offers London crowd the benefit of his thoughts on the recent chaos in English cities

As Public Enemy finished their UK tour at the Forum in London on Thursday night, their leader Chuck D told the crowd last month's violence in English cities had been inevitable. "This is a new world order, if you push people they're going to fuck shit up," he said. "But there is enough to go round for everyone. Tell your government that. Equal rights are important."

He added that the legendary hip-hop group had nearly cancelled their UK shows after the violence. "We almost didn't make this gig because of what happened here a month ago," he told the crowd. "People in America were going nuts and they were scared about coming over here. They were going: 'What the fuck is going on in England? A white man is acting like a black man.'"

Flavor Flav dedicated the song 911 Is a Joke to those imprisoned for rioting.

Public Enemy are perhaps the most politically involved rap outfit of the last 25 years. Chuck D coined the phrase "black folks' CNN" to describe hip-hop's ability to instantly and accurately report on the problems facing inner-city black communities in America. In August he recorded Notice, Know This, a response to Jay-Z and Kanye West's Otis, drawing attention to the discrepancy between the consumerist boasts of superstar rappers and the economic disempowerment of the communities the music represents.

Punish the feral rioters, but address our social deficit too

Ken Clarke | The Guardian | 5 September 2011

Three-quarters of the adults charged already had a conviction, which is why urgent reforms are needed

I've dealt with plenty of civil disobedience in my time, but the riots in August shocked me to the core. What I found most disturbing was the sense that the hardcore of rioters came from a feral underclass, cut off from the mainstream in everything but its materialism. Equally worrying was the instinctive criminal behaviour of apparently random passers-by. What are the lessons for the justice system?

The first is that disorder on our streets must be met with a firm, fast and sustained response. The system was briefly caught unawares, but tested like never before, and ultimately gave a quick and definitive answer to those who thought they could commit crime without consequence. It's thanks to the police officers who cancelled leave, the staff who kept courts open all hours and the judiciary who worked through the night that rioters high on violence soon found themselves facing the cold, hard accountability of the dock. I am hugely impressed by the dedication of our staff, some of whom worked 35-hour shifts to ensure the efficient delivery of justice. These are public-spirited people, doing their duty in the best traditions of public service. The criminal justice system was itself on trial and, though it's still early days, so far it has coped well. It has the capacity – whether in courts, in prisons, in prison transit or probation – to deal with those who come before it.

The second lesson of the riots is that they reaffirm the central point of any sane criminal justice policy: where crimes have been committed, offenders must be properly punished and pay back to the communities they have damaged. The scale of the violence and looting was new, but crimes like arson and burglary are not – and our courts do deal severe punishments to serious offenders.

Restorative justice after the riots?

Paul Carter-Bowman | The Guardian | 27 August 2011

As a former young offender I know rehabilitation in prisons is lacking. But it was a letter from my victim that made me change

After the crimes, the punishment. Sentences handed down barely a fortnight after the mass riots across England have included prison terms of up to four years, where those on the receiving end will spend around two entire years in prison, with the latter part of their terms served on probation within the community. Of the 1,474 who have already appeared before the courts, over 1,000 have been remanded to custody, which, to you and I, means spending time in prison.

But what can we expect our prisons to achieve with these rioters?

In 1999, at the age of 16, I phoned the police and handed myself in for a violent offence I had committed the previous evening. I did this thinking that the punishment I would receive would be no more or less than what I deserved, and believed that it would serve a purpose beyond simplistic retribution. I was aware that I had overstepped the boundaries set down by society, that I had become a dangerous individual. I expected to be taught a lesson and, perhaps naively, that I would emerge from my punishment a reformed character.

However, from the moment I entered Reading young offenders institution, it was clear that the practice of prison did not include reform or rehabilitation. There was no interest from either the regime or the guards who kept us. The point of prison was simply to keep me there. This would, theoretically at least, make sense if I was to never be released. But after pleading guilty to grievous bodily harm, the sentence I received was four and a half years (I went on to serve three).

Indeed, of the thousands of young people aged 15 to 21 whom I shared prisons with, not a single one received a sentence that would keep them out of society for their anticipated natural lives. A couple committed suicide, one was murdered by his cell-mate, and several will still to this day be awaiting parole from a life sentence, but everyone else has since been released back into the community. Ministry of Justice data confirms that 75% of young people reoffend within a year of being released from prison, and no doubt many of the others just evade capture.

Riots sentencing: a sinister attempt to upend the judicial process

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.

Draconian sentences, weak-kneed liberals and why thugs need to fear the law

Stephen Glover | The Daily Mail | 18 August 2011

A magistrate or judge handing down a sentence normally has two main considerations in mind.

One is the right punishment for the offender. The other is the deterrent effect on others.

We should not be at all surprised that, following last week's riots, much more emphasis than is usual is being placed on the deterrent effect.

A crime which in normal times would lead to a small prison sentence, or very possibly no sentence at all, is now likely to attract a swingeing penalty.

In other words, the context in which the crime was committed is rightly judged to be of crucial importance.

Two young men who posted messages on Facebook last week inciting people to riot in their respective home towns have both been sentenced to four years in prison by a judge at Chester Crown Court.

If either of them had done exactly the same thing six months ago, they would have barely been noticed. At most they would have received a rap on the knuckles from the police, and perhaps a caution.

As it is, Perry Sutcliffe-Keenan and Jordan Blackshaw have each received a punishment intended to deter which some people may think excessively harsh.

The justification for the sentence is that their call to violence, delivered at the time it was, supposedly caused some general panic in Warrington and Northwich.

Judge Elgan Edwards QC also said that 'considerable strain' was placed on hard-pressed police officers who were trying to control the riots.

Context is all-important: that is the message which critics of seemingly draconian sentences should take on board.

Last week saw the biggest outbreak of mindless criminality that this - and probably any other civilised - country has experienced in modern times.

Tough measures are needed in such unprecedented circumstances.

But it does not follow that every sentence that has been handed out in the past few days is proportionate. Most of us will have noticed punishments which, notwithstanding what I have said, do seem excessive.

Some police officers fended off gangs of youths intent on ransacking shops and retail centres, but are the sentences for looters appropriate?

A 23-year-old student with no previous convictions has been jailed for six months after he pleaded guilty for stealing six bottles of water said to be worth £3.50 as he was passing a looted supermarket in Brixton.

What a stupid idiot. But, especially in view of his good character and the contrition he showed to the police and magistrates, was this an appropriate punishment?

Harsh riot sentences could cause appeals logjam, say rights groups

Owen Bowcott, Helen Carter and Shiv Malik | The Guardian | 17 August 2011 

Riot-related jail terms must be balanced against justice and proportionality, say campaigners

Civil liberties groups have warned that the court system will be clogged with appeals by people convicted of riot-related offences seeking to overturn lengthy terms of imprisonment.

"We know the courts are swamped with cases and handing down hurried and overly punitive sentences [that] will result in many criminal appeals which will act as a further drag on the system," said Andrew Neilson, director of campaigns for the Howard League for Penal Reform.

"While it is understandable that the courts have been asked to treat the public disturbances as an aggravating factor, this should be balanced against the key principle of criminal justice – that of proportionality."

The Sentencing Council for England and Wales, which produces guidelines for judges, has not met since the riots and insisted on Wednesday that there had been no discussions regarding the appropriate sentencing of rioters. The Ministry of Justice also denied asking the council to amend its guidance on future unrest.

Gillian Guy, a solicitor and member of the council and chief executive of the Citizens Advice Bureau, said that if magistrates had been told to disregard the guidelines, "then they must be satisfied that to apply the guidelines would be contrary to the interests of justice".

She added: "There's not one sentence for each crime. There has to be a range, because there are various factors that come into play. There's room within the range to take into account … other activity that's going on. We look for consistency and fairness and whether people understand what's going on."

Why CCTV has failed to deter criminals

Cory Doctorow | The Guardian | 17 August 2011 

As the recent UK riots showed, CCTV does nothing to prevent criminal behaviour

I've lost track of the number of people who've asked me to comment on David Cameron's insane plan to cripple Britain's internet in times of civil unrest by blocking Twitter and other services. In case you're wondering where I come down on it, well, let's say that it's not just a bad plan, it's also an ineffective one.

It's only been a week, after all, since Cameron's government concluded that the Digital Economy Act's web censorship plan wouldn't be implemented because downloaders would have no trouble getting around the blocks it would throw up. If people who want to download movies can evade Britain's censorwall, then so can people who want to organise riots. Duh.

But for me, the use of BlackBerrys in organising riots (if "organise" is the correct verb here) is just a sideshow. Though as a Canadian, I'm fascinated to see that our national technology success story, the businesslike BlackBerry, has now enduringly entered pop culture's lexicon as the tool of choice for disaffected and violent youth.

The real story for me is about surveillance, and not the mere use of CCTV footage to apprehend rioters after the fact. It's about the total failure of CCTV to deter people from committing crimes in the first place.

After all, that's how we were sold on CCTV – not mere forensics after the fact, but deterrence. And although study after study has concluded that CCTVs don't deter most crime (a famous San Francisco study showed that, at best, street crime shifted a few metres down the pavement when the CCTV went up), we've been told for years that we must all submit to being photographed all the time because it would keep the people around us from beating us, robbing us, burning our buildings and burglarising our homes.

A year before the Vancouver Winter Olympics, a reporter from a one of the local papers called me to ask whether I thought an aggressive plan to use CCTVs in the Gastown neighbourhood would help pacify the notorious high-crime heroin district. I said that the deterrence theory of CCTV relied on the idea that the deterred were making smart choices about their futures and would avoid crime if the consequences might catch up with them.

Then I recounted my last trip through Gastown, where the pavements were thronged with groaning and unconscious emaciated addicts, filthy and covered in weeping sores, and asked if those people could be reasonably characterised as "making smart choices about their future." I explained how my hire care had been broken into by a thief who'd left four perfect fingerprints on the passenger window, not caring whether the crime was associated with her or his biometrics forever.

Funnily enough, I was in Vancouver during the riots, which took place quite close to my home in London. I went through Gastown, which is utterly transformed into a pleasant shopping and university district. Simon Fraser University very carefully and cleverly slotted a new campus into the middle of Gastown, and hired only local people to work in it.

It was the very model of giving people a chance and a stake in their neighbourhood. And while there are still some sad and disfigured junkies here and there, you'd never know that Gastown was recently notorious as the most drug-blighted neighbourhood in the city that is the major port of ingress for heroin into the Americas.

I won't pretend to understand the forces that led my neighbours to take to the street and smash and burn and hurt each other. I don't think I know what "pure and simple criminality" is – presumably, it's some imperceptible pollen that drifts through society and alights on people, which is awfully convenient for government because "pure and simple" criminality has no cause and therefore no one to blame and nothing that can be done to prevent it.

But I do understand one thing: the deterrence theory of surveillance had no nexus with the motivations of the rioters. The theory of street crime as a rational act is bankrupt. Evidence-led CCTV deployment shows us where CCTV does work, and that's in situations where crimes are planned, not pulled off in the heat of the moment.

Parking garages, banks and jewelry stores, yes – but the idea that we can all be made to behave if only we are watched closely enough is bunkum. We behave ourselves because of our social contract, the collection of written and unwritten rules that bind us together by instilling us with internal surveillance in the form of conscience and aspiration. CCTVs everywhere are an invitation to walk away from the contract and our duty to one another, to become the lawlessness the CCTV is meant to prevent.

After the London riots, one thing is certain: anyone promoting CCTVs for deterrence is most likely selling something, probably CCTVs.

Dealing with the looters – a beak speaks

Larry Elliott | The Guardian | 11 August 2011

Magistrates aren't soft, but a spell behind bars won't solve the problems of young offenders I see.

The lawlessness seen on the streets of London and other English cities appears to have come as a shock to politicians. It will have come as no surprise to lay magistrates sitting in the youth courts. I know, because twice a month I take time off from charting the global financial crisis to sit as a justice of the peace.

In my experience, stretching back almost 20 years, the young offenders who come up before the beak fall into two broad categories. A minority turn up neatly dressed and with both parents in tow. They are still in full-time education, have the prospect of university and a decent career, and tend to be accused of relatively petty offences: a bit of drug-dealing perhaps. The parents hate being in court and the young offender knows it. They feel burning shame for the humiliation they are heaping on their mum and dad. It is often the first time they have appeared in court and they are scared.

In the other camp, there are those offenders who turn up late offering a litany of lame excuses. Before the case can begin, they have to be told to take their hands out of their pockets, turn off their mobile phones and stop chewing gum. Only rarely do they turn up with both parents: usually it is the mother, but quite often they are on their own. When magistrates retire to read the pre-sentence report, they can usually have a good guess at the contents: learning difficulties, excluded from full-time education, a history of physical and sometimes sexual abuse, living in a household dependent on benefits.

Magistrates are encouraged to engage with young offenders but it is hard going. The teenagers are trained by their defence lawyers to express remorse but are not entirely convincing when they say they feel sorry for their victims. There's not much sign that they respect the court, let alone fear it.

From the bench, what magistrates see is a raging bundle of id impulses, the desire for immediate gratification untempered by a sense of guilt and with only an ill-formed notion of right and wrong. The temptation to bang them up and throw away the key is strong, and magistrates will no doubt be encouraged to do just that over the coming weeks. It is, though, not the way the courts work, and a good thing too.

Despite what the politicians think, magistrates are not routinely soft. Formal sentencing guidelines mean that the courts can't make it up as they go along. For every offence, there is a starting point for the bench's deliberations and a range of possible sentences after magistrates have looked at any aggravating or mitigating factors, and at the offender's record and character. Magistrates can choose a sentence outside these nationally agreed parameters but they have to explain in open court why they are doing so. If they want to send someone to prison or order someone to do unpaid work, they first need to get a report from the probation service or, in the case of someone under 18, from a youth offending team.

It's absolutely right that this should be the case, since most magistrates are amateurs who rely on experience, common sense and professional back-up to come to what we hope is the right decision. It's a curious system, peculiarly British in its way, but it works.

Magistrates will not need the exhortation of politicians to get tough with the looters. In many cases, JPs will look at their guidelines and decide that the aggravating feature – the break down in public order – means their powers of sentence are insufficient. The maximum jail term they can hand out for a single offence is six months, reduced by up to a third if the offender pleads guilty. Only half a prison sentence is actually served behind bars: the rest under licence back in the community. Those caught red-handed with flat-screen TVs or designer trainers can expect to find themselves up before a judge in the crown court, with a harsher sentence as a result.

Yet we are kidding ourselves if we imagine that a spell under lock and key, even when necessary and richly deserved, solves deep-seated problems of parenting, schooling, poverty and abuse. There are times when magistrates feel a deep sense of sadness when they read a pre-sentence report in the privacy of their retiring room, which is why they see their task as both to punish and to rehabilitate. That seems to me the right approach. I have not heard of a better one.

David Cameron's 2006 'hoodie' speech in full

BBC News | 10 July 2006

Here is the text of Conservative leader David Cameron's speech to the Centre for Social Justice founded by Iain Duncan Smith.

"It's always a pleasure to speak to the CSJ.

On my first day as leader I went with Iain to the East Side Young Leaders Academy - an inspirational project working with black boys at risk of crime.

And the first of the policy groups I set up was Iain's, looking at all the full range of social justice issues.

For the Conservative Party I'm leading, social justice is a vital issue.

The reason is simple: the degree of social injustice in our country.

One of the worst aspects of social injustice that people face is the fear and suffering caused by crime and disorder.

In many communities, it's doing more to wreck the sense of general well-being than just about anything else.

Everywhere I go, it seems to be the same story.

People frightened to go out for a drink on a Friday or Saturday night because town centres turn into war zones.

Neighbourhoods wrecked by vandalism, graffiti and a less tangible, but perhaps more damaging, sense of menace in the air.

The complaints are identical.

Young people are out of control.

There's nothing for them to do.

Why can't their parents do their job properly?

Today I want to talk about how we solve these problems for the long term.

Too often, the debate is about short-term solutions: ASBOs, curfews and criminal justice.

Of course, we need these things to protect the public from anti-social behaviour today.

But my aim is a society where we need them less and less.

The long-term answer to anti-social behaviour is a pro-social society where we really do get to grips with the causes of crime.