David Thomas QC: Judges have clear rules for riot-related sentencing

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The Independent Online

Commentators on sentencing for offences committed in the course of the recent disturbances will doubtless have many criticisms to make. For some, the judges will undoubtedly be too soft; others will argue that the judges are being driven by some kind of media-inspired panic to impose disproportionate sentences. Whatever the nature of the offence, judges have sentenced within the framework established by Parliament in legislation.

The first principle is that a custodial sentence of any kind must not be passed unless the offence or offences were "so serious that neither a fine alone nor a community sentence can be justified". Parliament has firmly stated that a custodial sentence is the last resort, to be applied only where other measures are inadequate. When a custodial sentence is passed, the sentence must be "commensurate with the seriousness of the offence". The recent disorders, although unique in that they were widespread throughout the country, are by no means the first occasion on which courts have had to deal with offences of this kind. No one familiar with the guidance given by the Court of Appeal on earlier occasions will find any of the sentences so far passed at all surprising.

One key principle stated many times is that an offender who takes part in a large-scale public disturbance cannot expect to be sentenced as if his actions had been committed in isolation. The acts of the individual must be viewed in the context of the disorder to which he has contributed. Second, in cases of public disorder as much in any other kind of case, there is no room for distinction between offenders on the basis of their social origins. Young offenders from comfortable backgrounds with bright prospects which they have jeopardised cannot expect to be treated more leniently than less fortunate defendants from disadvantaged backgrounds.

The legal restrictions on the sentencing powers of judges will influence the outcome of many cases and produce many anomalies and disparities. Burglary of a shop is punishable in the case of an offender over 18 with 10 years' imprisonment or detention, as is riot. The maximum sentence for violent disorder is five years and for affray, three years. In the case of an offender under 18, the maximum for any of these offences is a two-year detention and training order, which must be reduced to 18 months if the defendant pleads guilty. A youth under 15 who is not a "persistent offender" cannot be given a custodial sentence for any of these offences and must be dealt with by a referral order.

Politicians might be advised to spend their efforts not in criticising judges but in examining the complexities of the legislative structure they have created, within which judges must work.

D A Thomas is the editor of 'Current Sentencing Practice' and author of 'The Sentencing Referencer'