The post-mortem on last week's riots quickly divided opinion between those who saw inequality and deprivation as the prime causes and those who joined the Prime Minister in blaming moral decay and personal irresponsibility. Now, as the numbers appearing before the courts pass from the hundreds into the thousands, the judges' sentencing is opening up a similar divide. Even as the public overwhelmingly applauds the courts for "finally" getting to grips with law-breakers, human rights campaigners and defence lawyers cry foul. From the cases concluded so far, there would seem to be, at very least, grounds for concern.
Two decisions have drawn particular criticism: the four-year prison terms imposed on two men convicted of using Facebook to incite riots in the north of England – riots in fact that never took place – and the six-month sentence for a man found guilty of taking £3.50 worth of bottled water from a Lidl store in London. The objections in both cases are similar. First, that the sentences, in absolute terms, are out of all proportion to the offence. Second, that the equivalent offences committed before last week would have been treated far more leniently. And third, that while sentencing of rioters has so far has veered towards the strict, it has also been inconsistent.
Certainly, some of the inconsistencies in sentencing seem glaring, particularly for theft and handling stolen goods – from one day to many months in prison. And while disparities are not unusual between individual cases and jurisdictions, the discrepancies in some riot-related sentences appear unusually wide.
The bigger question, however, relates to the pattern of judgments, which suggests that offences committed during the riots are attracting far tougher sentences than similar offences would have done before. Initial Ministry of Justice figures, showing that two-thirds of those appearing before the courts were refused bail, compared with only 10 per cent over the whole of last year, support the idea there has been a sharp change in practice. Either that, or – as some lawyers argue – the context of the riots is being, and should be, treated as a factor that seriously augments the gravity of the crime.
There are claims, fiercely denied, that the upper echelons of the judiciary, or even ministers, ordered especially severe treatment for rioters, with a view to deterring others and assuaging public anger. As Dr David Thomas argues in The Independent today, deterrence is a legitimate element in sentencing – as, for the sake of maintaining public confidence, is recognition of the national mood. But any directive that changed longstanding sentencing practices would be the start of a slippery slope towards the politicisation of the courts.
The legitimacy of the most swingeing sentences is likely to be tested at appeal – with the risk, of course, that courts could be tied up with post-riot challenges for years. But what appears to be a sharp change in bailing and sentencing practice, plus the speed with which riot cases are being processed through the courts, should sound alarms here and now. It is not only hard cases that make bad law, but apparently easy cases that are fast-tracked against a backdrop of public indignation. In a law-governed state, justice has to be the same for everyone – rioters, too.