THE MANTRA OF DETERRENCE

There can`t be anybody however remotely involved with legal matters who won`t have a view on the aftermath of the recent riots.  The mantra of the police, whilst still in denial over accusations of operating a two tier policing approach, is we will find you and we will arrest you to appear in court or words to that effect. Politicians of most persuasions have weighed in with support for strong measures to prevent subsequent similar events. The courts, where magistrates seem to have been frozen out of these hearings,  and therefore under the jurisdiction of District Judges and Crown Court Judges seem to have been ordered by the executive i.e. Kier Starmer PM, to dish out sentences towards their maximum according to the Sentencing Guidelines.  This, judges and politicians assert, is to act as a deterrent against future such events.  

Sentencing, which the Sentencing Council appears to view as a science, is as much an art as a manipulation of algorithms. After conviction a sentence should be based on level of law breaking and the offender`s history and circumstances.  The effect of sentence should be punishment, rehabilitation of offender, protection of the public where needed and deterrence against others who might be following or intend to follow a similar  criminal lifestyle.  It is this last consideration which seems to be the basis of the immediate custodial sentences handed out to those who admitted on line offending. The National Police Chiefs Council said specialist officers have been tasked with pursuing suspected online offenders and so-called influencers who, they say, are responsible for “spreading hate and inciting violence on a large scale”.  A spokesman said that online content would be assessed by a senior investigator to determine if it meets the criminal threshold and offenders will then be identified, arrested and charged. They reasoned that they knowingly spread misinformation, stoked the flames of hatred and division and incited violence from the comfort of their own homes, causing chaos on other people’s doorsteps.  And to emphasise his point  the spokesman continued that online crimes have real world consequences and offenders would be dealt with in the same way as those physically present and inflicting the violence.

This policy is determining that deterrence for individuals is applicable to criminal activity by crowds. From pre history execution by tribal elders to British judges donning black head coverings prior to sentencing a felon to death by hanging has been a feature of our justice system until capital punishment was finally abolished in 1969.  We, the public, were assured that "life" sentences would still be available as a deterrent for murder.  Currently there are 9.7 homicides per million population in England and wales.  In 1968 there were 360 official homicides. and in 2023 the number was 944.  I think it`s safe to say that for many criminals the prospect of a life sentence has lost its deterrent value. But the above is the reasoning behind what was a hoped for effect on an individual acting in an individual capacity.  Current actions seem to indicate that this government and the prime minister believe that criminal group activity can also be deterred in a similar fashion irrespective of the morality of the policy.  

As with a few serious offences violent disorder, apparently the most common charge being used against rioting offenders, can be tried summarily at a magistrates court with a maximum sentence of six months custody  or at a crown court where a jury will decide whether a not guilty plea leads to acquittal or a guilty plea or verdict offers the prospect of a five year maximum prison sentence.   Full statistics on these matters will not be available for some months.  With reference to my post last week it is unlikely we will ever know if lay magistrates were involved in any of the sentencing of offenders facing summary charges as a result of the disturbances.  So much for the much vaunted  mantra of the Ministry of Justice of local justice for local people. 

I would conclude by questioning whether publicly declaring that severe sentences will act as a deterrent to further similar offending has enhanced the "hard man" image that Kier Starmers is trying to project.  I would also suggest that the deterrent effect is in itself a mirage in such circumstances.  Finally the control over District Judges, if indeed lay magistrates have been by passed for these sittings, is just another example of how the judiciary is not quite as independent as is regularly claimed by all shades of politicians.