As the rioters (some of those who have pleaded guilty are pictured above) enter the criminal justice system, several crucial questions have surfaced: who are they exactly? Are they being treated fairly by the criminal justice system? And can the courts and the prisons cope with the additional pressure?
What is less complicated is the question of whether the public support the principle that rioting should be treated as an extraordinary event that needs to be dealt with forcefully. “On the whole, people back urgent measures and tougher sentences in these kinds of situations,” Cassia Rowland said. “It is true that riots are treated differently – but that is a deliberate decision designed to deter people from taking part, and it has a lot of support.”
Here’s what else you need to know.
The sentences so far
Figures for England and Wales compiled by the BBC say that easily the most common offence is violent disorder, with 290 of 623 counts analysed. Of the 446 people whose charges were analysed, 407 are male. Of the 157 people who have been sentenced, 139 have been sent to prison, with the average sentence being two years. The average age of those charged is 32, with at least 46 under 18.
While the data is not yet available to say definitively how much the aggravating factor of the riots has increased sentences against the same offences committed in isolation, “it is clearly something that judges are taking into account”, Rowland said.
It’s worth noting that the cases processed so far are mostly those where offenders have pleaded guilty, and therefore receive an automatic reduction in sentence. Longer sentences are the preserve of the crown court, and many of the cases so far have been handled by magistrates. It should therefore be expected that those found guilty after a crown court trial will push the sentencing average up.
“It probably is quite important to get ‘headline’ sentences out early on when the disorder is still happening or may return,” Cassia Rowland said. “That is crucial for making the point to people thinking about joining in. So in that sense, the urgency has now diminished somewhat. It will be where trials are necessary and people are waiting for years that we start to see where the real problems with the criminal justice system lie.”
The comparison with 2011
As significant as the recent disorder was, it was on a smaller scale than the most obvious comparator of recent years, the 2011 riots sparked by the killing of Mark Duggan. By last Sunday, the National Police Chiefs’ Council said that 1,165 arrests had been made; there were more than 3,000 arrests in 2011.
“There clearly is a big difference,” Rowland said. “It’s hard to put an exact number on, but I’ve seen realistic estimates that there are maybe a quarter as many people taking part.”
Many of the 2011 sentences were ultimately viewed by many as having been unnecessarily draconian, as with a man who happened to be walking past a shop being looted, helped himself to a case of water and was jailed for six months.
This time, too, “there definitely will be people who don’t have previous offences and were swept up in the heat of the moment and played a minor role”, Rowland said. But so far, few of the cases attracting heavy jail sentences meet that description.
“Judges may rely on sentencing established in 2011 when they’re making decisions,” she added. “But there will be differences – unlike 2011, a lot of people have been charged with racially aggravated offences, which can carry a significant sentencing uplift. And there has been more widespread sentence inflation since then. That will play a part in the outcomes as well.”
‘Free speech’ and online offences
The most severe sentences handed down for online behaviour have been to those whose actions were deemed to have been an incitement to racial hatred. Tyler Kay, a 26-year-old from Northampton, got more than three years for calling for hotels housing asylum seekers to be set alight, for example.
With Elon Musk as their guide, many on the right have complained that these kinds of sentences are an affront to freedom of speech. In truth, British courts have long held that freedom of speech does not entitle people to incite violence. Part of the outrage may be due to a perception that online behaviour is somehow exempt from this general principle; these sentences may change that.
“I think most people have been aware for some time that online behaviour may be illegal,” Rowland said. “But they may not see that their own behaviour can qualify to be taken seriously as a criminal offence, especially in this kind of context.”
Pressure on the courts
The riots came during a vexed period for the British legal system, which is still struggling to deal with pressures that were exacerbated by the coronavirus crisis. In May, the National Audit Office said that the backlog of cases in the crown courts stood at 67,573 last year – 78% higher than it was when the pandemic began.
In this piece looking at how the justice system is handling the riots, Rowland argues that the maximum sentence handed out by magistrates should be increased from six months to 12, to free up the crown courts. “This is a really serious challenge for the criminal justice system,” she said. “It’s going to be hard to manage both the trials and the resulting increase in the prison population.”
Police forces have been under significant pressure too. Beyond the initial workload of policing the riots, Rowland said, one overlooked aspect of the demand on their time is in the work sifting through evidence on smartphones. “There are already massive backlogs in digital forensics within the police – so they may just decide not to pursue some lines of inquiry. They have a huge amount of information to process.”
Pressure on prisons
Many of those who plead not guilty will be remanded in custody, Rowland said, and those ultimately found guilty and jailed will further increase pressure on the prison system. “This is going to have a lasting impact as people serve out their sentences,” she said. “It’s not just a temporary shock.” The prison population stood at 87,893 against a usable capacity of 89,191 last week.
Partly in response to the riots, this week the government activated Operation Early Dawn, designed to alleviate pressure on prisons by delaying trials until a prison place is available. Labour has also announced a new early release scheme that will see thousands of inmates released after serving 40% of their sentence instead of the current 50%, but that is not expected to come into force until next month.
Rowland has proposed bringing forward the early release scheme to free up more space. “Early Dawn is an effective tool in the short term, but it doesn’t really solve the problem,” she said. “There is a very real possibility of significant unrest in a prison – the conditions for a riot are usually overcrowding, hot weather and prisoners with a sense of grievance. A lot of the people entering prison now are likely to feel that way, and they’ve already demonstrated their willingness to engage in violent disorder. That is going to be really difficult to manage.”
