Friday, August 26, 2011

a sense of proportion

Those who choose to take part in activities of this type must understand that they do so at their peril. These are the words of Judge Gilbart when sentencing four defendants who had taken part in the riots in Manchester earlier this month. They stole from shops. They didn’t smash the windows, break in, set fire or attack police; the door was open, the goods were there, they took some. In themselves, relatively low category offences of theft and non-dwelling burglary that might normally be dealt with in a magistrates court where a maximum of 6 months custody can be given for each offence. But they were committed as part of the general disorder that we saw in cities across the country, and that’s why the sentences handed out have been surprisingly high.

Effectively, the looters and thieves have been treated as if they were part of the group action that committed the more violent and destructive crimes, and it’s a fair though unprecedented argument. Judge Gilbart went on to say I have no doubt at all that the principal purpose is that the Courts should show that outbursts of criminal behaviour like this will be and must be met with sentences longer than they would be if the offences had been committed in isolation. In other words, do anything criminal related to a riot and you are a rioter. A message that could not be clearer, not only to his four defendants that day who received prison sentences of 16 months, 18 months, 24 months and 10 months (suspended), but to the public, including those who think a first time offender in a riot won’t get a prison sentence; they will now. And yet in 2009 the police gave 4,400 cautions for burglary, completely at odds with the sentencing approach now being taken. Maybe the riots have given the police a message about sentencing too; leave it to the courts.

Judge Gilbart’s remarks were later endorsed by Judge Atherton and Judge Henshell when they came to sentence rioters in in much the same vein. Each of them paid respect to the sentencing guidelines and then explained why they would go above them. But tough sentencing is one thing, irrational is another, and there have been many examples of unreasonable and unjustified heavy sentences.

One example is Ursula Nevin who accepted looted shorts from a friend but had herself been asleep at home during the riots. District Judge Qureshi sentenced her to 5 months custody. Although the media reports the sentences being imposed in magistrates courts, nearly all the riots cases have been dealt with by district judges, who are highly paid whereas magistrates are voluntary. It is doubtful that any magistrate would impose such a high sentence on Ms Nevin or would have imposed a custodial sentence on her at all. The district judges, some say, have been politically influenced (though they would refute that) and have departed wildly from sentencing guidelines in many cases, also denying bail (contrary to the Bail Act) in order to enhance the punishment. The appeal court judge was the very same Judge Gilbart and he not only discharged the custodial sentence but gave Ms Nevin a very low level of unpaid work, just 75 hours, under a community order. This was a huge reduction on the original sentence and gave a very clear message to the district judge which hopefully was gratefully received.

There will be many more appeals and it won't be until they have been processed that we will know whether or not the general levels of sentences will be raised in the future, particularly for offences related to rioting and disorder. In the meantime the riots have stopped (for now) and those who claim that prison is not a deterrent to crime must review their argument. Prison is a deterrent and always has been.

And so it is back in vogue. Is the era of decrying imprisonment as costly, purposeless, offering little in the way of rehabilitation, reparation and discouragement from further offending at an end ? Temporarily maybe but the pendulum will swing again. Meanwhile, the public is demanding and rejoicing in harsher sentences, supported by politicians, eager to jump on any winning bandwagon. Community orders are, with some exceptions, not regarded by the public as a true punishment and are roundly criticised. There is no doubt that they can be a soft touch, and the actions of the deplorable former home secretary in using two prisoners on day release to decorate her home hasn’t helped the cause of non-custodial sentences. (As a misdemeanour it pales into insignificance compared to her very suspect expenses claims to the tune of £116,000, and we won’t mention her husband.)

But many community orders are worthwhile and are effective as punishment, reduction in crime, and deterrent. They need to be improved not abandoned, and lengthening the daily tagged curfew hours available to the courts, as an alternative to prison, from 12 to 16 would be a good start.

The public wants not only tougher sentences but more clarity and consistency and at lower cost. Right, let’s do it. Stop prison sentences being cut in half; nobody likes it; sentences will be shorter but fully served. Stop the police giving cautions for burglary and other very serious offences. Stop the election of crown court trial by defendants, wasting millions each year and prolonging the time to verdict considerably, even in some fairly trivial cases. Increase magistrates’ maximum sentencing powers to 12 or even 24 months custody, cutting down the number of cases going to expensive crown courts where the sentence would be just the same. And here’s one: Stop the use of district judges; they cost a fortune and are the only part of the criminal justice system where one person is judge and jury.

The fallout from the riots will continue for some time yet; potentially thousands of cases to be heard. When the dust has settled, we need to think carefully about what kind of justice we want and keep a cool head. We must treat every case on its merits, not always just as a part of a deepening criminality in society. The more serious offenders (those who commit arson, violence, burglary, robbery, incitement to riot etc) must get very heavy sentences but over-punishing the peripheral perpetrators will not help in the end. Keep a sense of proportion.


Tuesday, August 16, 2011

eight again

When is a judge not a judge ? When he trespasses heavy-footed into areas that he has no right to be in. Judge Farooq Ahmed told the convicted fraudster, illegal immigrant and previously class A drug dealer, who had been deported from the UK twice before, that the appropriate sentence for his crimes was 12 months custody. Leaving aside the fact that it was already a lenient sentence, according to sentencing guidelines, for seven counts of identity fraud, deception and false representation, the judge then did Vincent Miller a second, and even bigger, favour, by reducing it to 11 months to avoid automatic deportation proceedings.

He told Miller that “it isn’t necessary for me to pass a sentence of 12 months because a sentence of 11 months will have the same effect.” If that astounding remark were true then a 12 month sentence would never be imposed. Why not go further and argue that a 10 months sentence is much the same as 11 months, or maybe 9 months.

The judge was thinking about the fraudster’s three children (there is no wife or partner) and the ubiquitous Article 8 of the Human Rights Act which says that "everyone has the right to respect for his private and family life". Fine, respect it but don’t distort criminal justice by giving it greater weight than it merits. Leave the deportation decision to the UK Border Agency whose job it is to carry out the deportation proceedings, which do not necessarily lead to deportation. They will have the children uppermost in their minds too.

Article 8 is only 5 lines long. But it is curious how judges never seem to get as far as line 4 which says that the right does not have to be applied if not applying it would serve the prevention of crime or disorder. So people who are judged likely to re-offend should not be protected by Article 8. With Miller’s record of convictions and his persistent (and successful) attempts to enter this country illegally he has clearly waived his right.

The sentencing of any criminal can have great effect on his or her family and that should be taken into account but not to the extent of discriminating against those without families and destroying the crucial elements of the sentence i.e. punishment, deterrence, and protection of the public. Children can be disadvantaged in many ways, not just by having their dad sentenced, for example disadvantaged by unemployment in the family or by bullying at school, but those children don’t get the preferential treatment afforded to the families of offenders under the over-exposed Article 8.

And Vincent Miller knew he was putting his children at risk by repeated criminal offending, but didn’t seem to care much about them, so is he a good father anyway ? Is it so essential that he is around to bring them up, or would they be better off under alternative care ? Or was he the clever one, knowing that no matter what he does, good old Article 8 will always protect him and his children from having to leave the country they want to stay in.


Thursday, August 11, 2011

cry havoc

As the rioting subsides, for the moment anyway, the analysis of society gathers pace with a debate of largely polarised viewpoints. The leading question seems to be what has happened to the children, when did they become so lawless, how did they get to this terrible state where they smash, steal, destroy and injure without a care about authority, police, parents, or their own futures. Good question; but surely horses and stable doors ! Such concern is admirable but so late in coming. This isn’t a Summer of 2011 problem; it’s been around and growing for years.

Anyway not all the rioters, looters, arsonists, robbers, burglars and fighters that we have seen on tv over the last week are children, or youths (to give them their correct legal label), in fact the majority are not. Nevertheless there was participation of a large number of very young people and their involvement cannot always be traced to any one simplistic cause; it is more complex and the root causes of what has so unsurprisingly happened this week could be numerous and often deep seated, at least for some of them. In most cases there is no cause other than a joy of recklessness, the gain of power (however briefly), the mentality of ‘I do because I can’ and the absence of any fear of being caught, arrested, convicted, punished or even told off by a disinterested parent. If the future holds nothing to look forward to then why bother to look at all.

In a blog that is subtitled where we go wrong, there is so much material in these riots that there is a danger of overload; it is harder to write about anything we have done right. So shall we just blame everybody and everything we can think of. Let’s blame government, politicians, police, parents, schools, courts, immigration, alcohol, drugs, banks, the welfare society, human rights, cuts in public spending, the worship of celebrity, the huge gap between rich and poor, consumerism, flms and tv programmes that glamourise crime and violence, the focus on olympic games rather than on our own citizens, gang culture, racism, lack of role models, lack of discipline at home and school, liberalism, community leaders (whatever that means), mismanagement in the criminal justice system, political interference in the judiciary, the breakdown of respect for others, and (last but in no way least) selfishness and greed in their most gross and dangerous forms.

So pick a cause, any cause. Talk about it, write about it, shout about it, join an e-petition about it. You may well be right and the cause you pick is almost certainly a contributory factor, but that is the easy part; the hard part is tackling any cause and changing a society that has gone badly wrong. We cannot go back in time; what has become established behaviour, whether acceptable or not to the more traditional, has changed and the new world is an immensely challenging one and, in some ways, a very scary one. The criminality we now witness, particularly amongst youths, is here to stay unless there are changes in our society so major that it is almost impossible to imagine them happening. It is more likely we will have to adapt to a more dangerous, selfish and violent world and learn how to live with it.

We waste so much time deciding which politicians we elect, only to find there is not much difference between them. Rhetoric is their specialist subject and they can be very good at it. We have a PM who tells us that punishments for disorder will be more severe, in contradiction of the changes in sentencing that his government is now enacting. He knows that punishments for youths, under current legislation, cannot be more severe (except possibly for the current batch being processed in the light of exceptional publicity), and they probably won’t be in the future, but it is a good vote catcher. We have a Home Secretary who promised us that cuts in the police budget would never lead to violent unrest. Nice one. We have a leader of the opposition who takes every opportunity to be bland, boring and banal. They don’t know the solutions; they are so detached in their multi-millionaire world that they don’t even know the problems to solve until they are manifested explosively on the streets, and even then they don’t really know. They don’t see the reality because they are not part of it. They don’t even see the irony of stiffer sentences for looters being demanded by MPs who did not hesitate to loot from taxpayers by way of false expenses claims. As for bankers getting huge bonuses for losing the country’s money, well that would be worth a street protest in itself, peaceful of course.

In the aftermath, our political leaders are generally dismissing any link between sociological problems in our society and the riots, describing the offences committed as arising purely from criminality, which is certainly innate in our very aggressive nation and increasingly apparent amongst the young. So the argument goes that there must be severe punishment and deterrent rather than a search for, and a resolution of, other causes. It is an attractive argument because of its simplicity, not to mention the relinquishing of any blame on its advocates, but I am not entirely convinced; I think the search for other factors is worthwhile even if it ends by disproving them.

But if they are right then why didn’t they put the appropriate deterrents and resources in place. They must have known, as many did, that the inherent criminality was there, unless they admit they are out of touch. In fact they have done the opposite. We have police who give cautions for serious crimes, providing no deterrent at all, but the paperwork is a lot easier than with a court appearance.

The sight of police standing in a line and watching very serious crimes take place, with no intervention, was alarming and unbelievable and must be the wrong tactic, if tactical it was. Fire officers refusing to go to a burning building because they did not feel they were adequately protected by police was no more palatable or credible. We need a greater, not smaller, police resource and better operational leadership. We need all offenders, apart from the most minor, taken to court and dealt with under proper judicial sentencing rules, not given a ticking off by a police officer they don’t respect. The criminal justice system is not just a government department that should cut costs like any other; it is a prerequisite to be able to live in a civilised way and must be given a very high priority. Otherwise the riots will be back, sometime and somewhere, again and again. The public should be properly protected and this time that just didn’t happen.