Much has been written, tweeted and amplified about the English and Welsh criminal justice system’s response to the recent incidents of public disorder, very little of which is accurate. Below is a quick primer on the truth behind some of the more popular and virulent myths.
- “People are being charged and brought before the courts at breakneck speed – it’s two-tier justice!”
The speed at which some of those involved have been arrested and charged has taken many by surprise, not least in the context of an under-resourced and sclerotic criminal justice system beset by record delays and record backlogs.
Several things are going on here. First, the police response has been to treat the disorder as a priority, for self-evident reasons. Numerous towns and cities were swept by serious mass violence, arson, looting and threats to kill. Putting aside for now the question of the motivations of those involved, what was clear over the first days of the disorder was the risk of a contagion effect, similar to that seen in the nationwide riots in 2011. A visibly swift response was considered necessary to deter further copycat mass violence, and so additional police and Crown Prosecution Service resources were allocated to apprehending, reviewing and charging those involved in committing or encouraging the disorder. Given the dwindling of organised violent gatherings over the past week, it might be said that this strategy has had the desired effect.
But secondly, and more importantly in the context of the suggestion that those arrested and charged and in some way being ‘rushed’ through the system, is the fact that those charged to date have largely made it very easy for the police to catch them, and for the CPS to authorise charges. They represent the lowest hanging fruit for the police: the people who were arrested by the police at the scene of the violence, their participation undeniably captured on camera and uploaded to social media; or those who chose to tweet encouragement of violence in their own names and dare the police to arrest them; or people who committed offences dressed in ludicrously distinctive clothing.
This is just the first tranche. Many more will be arrested and charged over the weeks and months that follow, as police trawl video footage and social media for evidence.
Comparisons have been made with the perceived lack of police action in other, recent cases of alleged disorder which have made headlines, for example the disorder in Harehills on July 18th and the violence recorded at Manchester airport on 23rd July. These comparisons are fallacious. There may be many factors as to why those investigations are not yet at a stage where comprehensive charging decisions can be made, none of which fall under the category of conspiracy. Comparative lack of resources is likely to be one explanation, for the (fairly obvious) reasons of scale and urgency: nationwide riots involving thousands of people, which are showing signs of spreading, are likely to take resourcing priority over other incidences of disorder which, however serious, now appear to be contained. (Such comparisons also ignore that twenty-seven people have in fact been arrested and four people charged in relation to Harehills, with investigations continuing.)
However it is cut, a complaint that the authorities are illegitimately prioritising a response to the largest outbreak of nationwide rioting, arson and looting in a decade ahead of localised, isolated incidences of violence is one which, one might think, is difficult to advance in good faith.
- “People are being sentenced by the courts at breakneck speed – it’s two-tier justice!”
Anybody charged by the police and remanded in custody is produced before their local magistrates’ court the next day. At that hearing, they will be asked to enter or indicate a plea – guilty, or not guilty.
If they plead not guilty, the court moves on to consider arrangements for a trial, either at the magistrates’ court or, if the case is too serious for the magistrates, the Crown Court.
If they plead guilty, the court will move on to consider arrangements for a sentence hearing, either the same day or – particularly if the case is too serious for the magistrates to sentence and has to be ‘committed’ to the Crown Court – at a later date.
Defendants will ordinarily be represented by a solicitor at their first hearing, and the Crown Prosecution Service will supply some (although rarely all) of the evidence that they rely upon. The hearing will be packed into an enormous list of ‘first appearances’, which the court will endeavour to rattle through. There is an incentive to plead guilty – a defendant will usually receive a third off any sentence by pleading guilty at the earliest opportunity.
What that means is that people are frequently required to make serious, life-changing decisions based on limited information, in a very short space of time, in extremely stressful circumstances. It is not ideal. It is part of what I have criticised ad nauseam as a sausage-factory model of justice.
But it is not new. It is not something that has been brought in specifically for these defendants.
What is happening more quickly is the sentencing process. There is often a gap of a few weeks between somebody pleading guilty and being sentenced, due to the sentencing court requiring a Pre-Sentence Report from the Probation Service, and/or because the case is being committed to the Crown Court for sentence and the admin takes several weeks.
However what we have seen in recent days is defendants being committed for sentence extremely quickly. A Pre-Sentence Report need not be ordered if a judge considers it unnecessary – for instance, where a sentence of immediate imprisonment is inevitable (see below). And court centres such as Liverpool, where the magistrates’ court and Crown Court share a building, have ‘committed for sentence’ the same day as the plea being entered.
This is unusual. It forms part of the system’s strategy to deal with straightforward cases swiftly, to send a desired message. But – aside from the gripe that it gives the public an entirely distorted view of how slowly the system processes non-priority cases – there is arguably no disadvantage to being sentenced quickly, and potentially a large societal advantage, as studies suggest that the greatest deterrent is not the severity of punishment, but certainty and swiftness.
The key, though, is the word ‘straightforward’. These are people who have pleaded guilty, and who, because of the courts’ longstanding stance on cases of this type, are facing immediate prison. The “two-tier” treatment, such as it is, amounts to guilty people being sentenced a couple of weeks earlier than they might otherwise expect to be. A tantalising insight into the efficiency with which the system might be able to function if it were properly resourced across the board, perhaps.
For those who plead not guilty, they are proceeding through the system in the normal way. For those remanded in custody pending trial, they can be expected to be tried within or close to the legal ‘Custody Time Limits’ (182 days in the Crown Court, 56 days in the magistrates’ court). For those on bail, they will likely join the back of the queue of 70,000 outstanding cases in the Crown Court, and might expect a first trial listing (without any guarantee of a trial taking place) in 2026 or 2027.
This is particularly worth bearing in mind when reading idiotic gotchas – by MPs and former ministers, no less – contrasting the swift sentencing of rioters pleading guilty with the slower progress of highly complex cases in which guilt is not admitted, and where a trial has been fixed.
As loudly and slowly as I can for those at the back:
You cannot sentence somebody until and unless they are convicted.
- “People are being imprisoned merely for being present during the disorder! Two-tier justice!”
Nobody has been imprisoned for merely being present during the disorder.
Nobody can be convicted for merely being present during the disorder.
It is not a crime to simply be present during the disorder.
If by your presence you are encouraging, and intending to encourage, the violence taking place, you are guilty of committing an offence. But simply being in the wrong place at the wrong time? No. If that is what you were doing, you should not be pleading guilty.
Violent disorder and affray are worth briefly looking at, so we can see exactly what the offences constitute, and what people have been pleading guilty to:
The myth of people being prosecuted “just for being present” has gained traction in part due to a number of commentators misrepresenting the facts in cases of defendants who have pleaded guilty to violent disorder or affray, minimising their actions in order to fuel their chosen narrative. One such example is the case of William Morgan, falsely characterised as having been imprisoned “for refusing to disperse and holding a stick”, whereas the judge’s sentencing remarks reveal the truth: Mr Morgan was at the front of a mob setting fires and smashing up a library and foodbank, he was brandishing a cosh and it took three police officers to restrain him.
Public understanding has not been helped by the reported words of a Belfast judge when refusing bail to a defendant: “Anybody involving themselves in this type of disorder, be an active participant or a curious observer, can expect to be…remanded into custody.” I profess no knowledge of Northern Irish criminal law, but in England and Wales, it is not an offence to be a curious observer.
What is correct, however, is that people who actively participated in the disorder are being treated as responsible not solely for their individual part, but for their role in the disorder as a whole. This, as we’ll see below, is neither new nor unusual. It is a long-established principle of sentencing in cases of public disorder.
As the Court of Appeal has explained:
“It is an unavoidable feature of mass disorder that each individual act, whatever might be its character taken on its own, inflames and encourages others to behave similarly, and the harm done to the public stems from the combined effect of what is done en masse”.
These words were delivered in the case of Charlie Gilmour, son of Pink Floyd guitarist David, who was imprisoned for violent disorder in 2011 arising during the course of student protests against tuition fees. That, as it happens, was another case in which the defendant’s actions were misrepresented and minimised by his supporters. The photograph of Mr Gilmour swinging from the Union flag on the Cenotaph cultivated a myth that this reflected the extent of his culpability, whereas he was part of a violent crowd laying siege to a shop, trapping staff inside as he ran up and launched heavy kicks at the window; stole from inside once the window broke; took part in a violent attack on cars carrying members of the Royal Family; threw bins at vehicles; and attempted to start a fire at the doors of the Supreme Court.
A general rule of thumb: Whenever you read a headline or a tweet suggesting that somebody has been implausibly imprisoned “for doing X”, it will not be because of X. It will be because they actively participated in something much bigger, and much more serious, than the narrator wants you to realise.
- “People are being imprisoned for merely expressing an opinion on social media! Two-tier justice!”
This is again untrue.
People have been charged with, and pleaded guilty to, offences including malicious communications (encouraging people to take part in a riot); publishing material intended to stir up racial hatred (calling for attacks on lawyers and for hotels housing asylum seekers to be set alight), distributing a recording intending thereby to stir up racial hatred (livestreaming a YouTube broadcast outside a hotel housing asylum seekers in which the defendant used racist language and abused people staying at the hotel); and sending a message threatening death or serious harm (inciting Facebook users to blow up a mosque).
We can also anticipate charges of encouraging violent disorder in relation to other material which has been circulated online.
None of this is new. None of these offences is newly created. Most public order offences – including encouraging those offences on the internet – are prosecuted under the Public Order Act 1986, brought in by Margaret Thatcher’s Conservatives. Other communications offences, and certain offences relating to inciting racial and religious hatred, were creations of New Labour. The new offence of “encouraging” (replacing the former offence of incitement) was also a Blair baby. There have been reports of a recent arrest for false communications under the Online Safety Act 2023 – brought in by the previous Conservative government – although what has been omitted is that the arrest was also for publishing material to stir up racial hatred under the 1986 Act.
Neither the law, nor the way in which it is being used to prosecute, is novel or unusual. A reminder of the 2011 riots is again illustrative, as lengthy sentences were handed out to defendants – such as Jordan Blackshaw and Perry Sutcliffe – for Facebook posts in which they encouraged riot, burglary and criminal damage in their hometowns, notwithstanding that, in their particular cases, no violence did in fact break out.
Now, none of this is to say that English and Welsh law always strikes an agreeable balance between freedom of speech and protection of the public from harm. The criminalisation of “grossly offensive” and “menacing” communications under s127 of the Communications Act 2003, for example, is something which has proved highly controversial, not least for the current Prime Minister who, in his role as DPP, oversaw the “Twitter joke trial”, involving the outrageous, and ultimately unsuccessful, prosecution of a man for tweeting “Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together, otherwise I’m blowing the airport sky high!!“
By all means, the argument can be made that our laws and their enforcement are capable of having a chilling effect on free speech; potentially criminalising conduct which many would consider offensive or unpleasant, but which in a free and democratic society should not attract a criminal sanction. It would not take long to find examples to support the thesis that the law, and the police’s enforcement of it, sometimes overreaches to stifle freedom of speech. Particularly in the context of public demonstrations, even peaceful ones. But again, it cuts in all political directions. There is no evidence at all to suggest unequal application – or a “two tier” approach.
And again, it important to emphasise that, in relation to offences linked to the disorder, nobody is being convicted for expressing unpopular views, or for tweeting a joke, or any of the other straw men erected on social media.
Nobody is being imprisoned merely for expressing an opinion.
- “Concerned citizens are being prosecuted when left-wing protestors were not prosecuted! Two-tier justice!”
Black Lives Matter protestors were not pursued by the state in this way. Except when the government announced plans for fast-track prosecutions for BLM protestors. Environmental protestors are not prosecuted in this way. Except Extinction Rebellion protestors. And the Just Stop Oil defendants convicted of non-violent offences, and recently sentenced to terms of imprisonment longer than most of the rioters have received. Pro-Palestine protestors are not prosecuted. Except when they are. We’ve already looked at the ‘left-wing’ student protests in 2010, and the raft of prosecutions and convictions that followed.
On the one hand, this sort of glib response is easy to reel off. On the other, engaging with the argument concedes the fallacy that we are comparing like with like. That these protests were all of a similar character. They were not. Whatever criminal acts may have been committed in the course of the protests above, none of the people involved burned down a community library. Or surrounded hotels housing asylum seekers, armed with weapons. Or incited burning down those hotels. Or threatened to kill legal professionals for simply doing their jobs.
So perhaps the simplest counter-argument was delivered yesterday, when Amjad Ali, who had attended an incident of disorder in Northampton as a “counter-protestor” and involved himself in the violence, was imprisoned for affray, combusting the suggestion that “one side” is getting preferential treatment over another.
- “Rioters are receiving disproportionately high sentences! Two-tier justice!”
“When there is wanton and vicious violence of gross degree the court is not concerned with whether it originates from gang rivalry or from political motives. It is the degree of mob violence that matters and the extent to which the public peace is being broken … Any participation whatever, irrespective of its precise form, in an unlawful or riotous assembly of this type derives its gravity from becoming one of those who by weight of numbers pursued a common and unlawful purpose. The law of this country has always leant heavily against those who, to attain such a purpose, use the threat that lies in the power of numbers … In the view of this court, it is a wholly wrong approach to take the acts of any individual participator in isolation. They were not committed in isolation and, as already indicated, it is that very fact that constitutes the gravity of the offence.”
So stated the Court of Appeal in 1970, following a riot in Cambridge. Sentencing policy for mass public disorder has been consistently punitive ever since. Anybody who believes that the sentences handed down over the past few weeks are out of kilter with Court of Appeal authority, or the more recent Sentencing Guidelines for offences of violent disorder/affray, is under a severe misapprehension. You need only Google the 2011 riots to find examples of people receiving severe sentences for offences committed during that disorder, even when those defendants did not themselves use or threaten any violence – such as the student imprisoned for “looting” a £3.50 bottle of water from Aldi. As we saw earlier, people were imprisoned for Facebook posts inciting riots which did not even take place. Again, the Court of Appeal upheld this draconian sentencing approach, emphasising:
“Those who deliberately participate in disturbances of this magnitude, causing injury and damage and fear to even the most stout-hearted of citizens, and who individually commit further crimes during the course of the riots are committing aggravated crimes. They must be punished accordingly, and the sentences should be designed to deter others from similar criminal activity.”
Sentencing remarks for some of the more high profile sentences imposed in the last week are available on judiciary.uk. They bear reading, for the explanations as to how the Guidelines have been applied and the legal principles followed.
Now, as I find myself repeating endlessly, the fact that Guidelines and legal principles have been followed does not mean that the sentences are just or fair. It just means that the law has been followed. There may well be arguments that, in the cases of some of those convicted, sentences of immediate imprisonment appear oppressive.
Without doubt there will individual cases where people have been sent to prison who, we may feel, should not have been. Many of those who have pleaded guilty have deeply unhappy personal histories, traversing homelessness, mental ill health and substance misuse. Some are teenagers who have never been in trouble before. Others are parents in employment. While the actions of some show their racist, pseudo-political motivations, others will have been simply swept up, joining in out of stupidity, or bravado. We saw it in 2011. We see it again now. It doesn’t make a difference to the outcome – to prison they will go. Thousands of lives will be upended, with the shockwaves destabilising thousands more.
This, unhappily, is a frequent conundrum in the criminal courts. Finely balanced cases, where somebody has done something serious, stupid and out of character. Where prison may well do more harm than good. And where justice may be found in mercy.
The point, however, is this: while good arguments might be made to keep some of these people out of prison, there is not a scintilla of evidence that those appearing before the courts are being treated any more harshly than would be expected in cases of this type. Not a scintilla of evidence to support the idea that the sentences are politically motivated, or that these defendants are being subjected to a different regime than anybody else, of any political persuasion, offending in this context.
- “These judges have chosen to imprison concerned citizens while refusing to lock up sex offenders!”
This suggestion is often accompanied by memes purporting to summarise cases in which child sex offenders have been “let off” by a judge, usually for a ridiculous reason, while the same judge has slammed some poor old alleged rioter for standing on the street with a stick.
Again: several points arise.
First, you can guarantee that the examples given are wrong. The true facts will be obscured. There is a reason that the accounts pushing these memes do not link to primary sources.
Second, the discretion that judges have when passing sentence is often far less than people appreciate. Maximum and minimum sentences, Sentencing Guidelines and Court of Appeal rulings all make criminal sentencing a relatively narrow exercise.
Third, the starting point is that child sex offenders go to prison. Rapists almost without exception. For the minuscule minority who don’t, there is usually a compelling reason, often obscured in the tabloid retelling of the sentence hearing.
Fourth, our sentencing system is incoherent and inconsistent. Almost everybody will find aspects of our sentencing regime that offend them, or that don’t make sense. Non-violent migrants working in the UK using false documents almost always go to prison. That’s the stance of the Court of Appeal. Whereas violent domestic abusers frequently do not. Somebody who sells Class A drugs on the street can expect a higher starting point for sentence than a person who commits a sexual assault on public transport. I personally think that is madness.
But again, this is all deflection. Because those posting these memes are not genuinely interested in a debate on sentencing policy, or consistency. They want to support the notion that the rioters are only being imprisoned because of a shadowy conspiracy, involving malign politicians and paedophile-hugging judges.
A notion which, as we have seen, is entirely, irrefutably bogus.