The anger may have subsided on the streets as hoodies, gangstas and other members of Kenneth Clarke’s ‘feral underclass’ retreated into the shadows after last month’s riots, but it soon burst out in courtrooms across England. The most egregious instance was the judge at Chester who gave two men without criminal records four-year prison terms for trying (and failing) to incite riots via Facebook, but it was among magistrates that the rage was most sustained. Thus August saw not just one but two outbreaks of unlawfulness – and the magisterial disorder was in its way just as shocking as the violence and opportunism of the rioters.

The first sign of the legal chaos to come manifested itself on 11 August at Camberwell Green magistrates court, when a 23-year-old student of previous good character was sent to prison for six months for stealing bottled water worth £3.50. Six months’ incarceration is the maximum that magistrates are able to impose for a single offence, and authoritative Court of Appeal decisions, reiterated in Ministry of Justice sentencing guidelines, recommend that courts credit swift guilty pleas and the absence of previous convictions. The sentence was exceptional – and official statistics suggest that the exception subsequently became the norm. Although statutory provisions require that in the ordinary way of things anyone awaiting trial be released on bail, 65 per cent of the 1631 defendants who had appeared in court by 7 September were denied their liberty. The figure for prisoners charged with similar street crimes in 2010 was 10 per cent, and though some difference was to be expected given the gravity of the riots, the discrepancy is too large to be considered purely rational. In the cases that have reached a conclusion, the proportion of the convicted sent to prison has risen almost fourfold from last year, and the average term imposed – over five months – is more than double the 2010 figure.

The sense that magistrates have been following something other than the law was confirmed when on 15 August, sentencing someone to six months in jail for handling stolen goods, Novello Noades, the chair of the bench at Camberwell Green, let slip that she was following a government ‘directive’. Noades quickly declared herself ‘mortified’ by her choice of words, but whatever she might have meant by that, the clerk responsible for giving her legal advice, Claire Luxford, made it clear that it was not a retraction. Luxford told reporters that a senior official from a Ministry of Justice agency had emailed her – and other London magistrates’ clerks – to say that ‘when sentencing guidelines were written no one envisaged events like these, and therefore they do not apply.’ The ministry promptly issued an ‘explanation’ of the sentencing system in the UK, insisting on the independence of the country’s magistrates and judges, but the flurry of clarifications confirmed a pattern that has since become only too evident. Many magistrates have been paying little more than lip service to principles of punishment that are supposed to be legally binding.

England in mid-August was both vulnerable and angry, and the judiciary was all but obliged to reflect the popular mood. The demands placed on magistrates, as they laboured through nights and weekends to process prisoners, must also have taken their toll. However, according to statute, courts must follow relevant sentencing guidelines unless they are reasonably ‘satisfied that it would be contrary to the interests of justice to do so’. That kind of phrase is always open to interpretation, but no sensible reading would allow for suspension of the guidelines simply because the number of punishable crimes had spiked. The purpose of the guidance is to ensure that sentencing decisions do not vary too much from place to place and year to year. And that is a principle that has to be honoured – consistency, after all, lies at the core of justice.

Such observations can seem sanctimonious. It would certainly sound more gung-ho to applaud the ‘tough message’ that the courts are conveying, as David Cameron has done, or to say along with John Thornhill, the chairman of the Magistrates Association, that the sheer volume of riot-related criminality justifies disproportionate punishments. But there is a dangerous whiff of bullshit accompanying the no-nonsense voices: dangerous because they are promoting expectations that are doomed not to be met. The legal recklessness they celebrate has all but guaranteed the success of several high-profile appeals and judicial reviews, which will leave law-abiders bewildered and law-breakers inclined to think of the courts as incompetent rather than tough. Prisons have meanwhile filled to record levels, bobbing just below capacity, and space has been freed up by releasing current inmates on electronic tags, which is legally permissible only in respect of offenders serving between three months and four years. In other words, jailed looters are taking the cells of people who are potentially guilty of much worse. It wouldn’t take much to turn that into a tabloid story, in which case, far from displaying the power of justice, custody-happy magistrates will end up having brought it into disrepute. It may be that judges ought to punish riotous crimes more severely than they have in the past, but that principle should be established in advance, not smuggled into courtrooms retrospectively.

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