The variation in sentences handed down to rioters highlights the broader problem of the failure of self-regulation of the judiciaryby Matt Cavanagh / August 18, 2011 / Leave a comment
As with the wider debate over the riots, the debate over the sentences being handed down to individual rioters has quickly polarised. The right continues to defend even the harshest sentences as either deserved, or salutary, or both. Most on the left disagree, seeing too many cases which seem unfair, and fearing that longer sentences will generally be counter-productive.
Forced to choose, I would be in the latter camp. I agree that crimes committed during the riots should receive tougher sentences than similar crimes at other times; and agree too that there was value in some swift and exemplary sentences being handed down—provided the right cases were chosen. But there is a sense, as former Director of Public Prosecutions Ken Macdonald said on the Today programme this morning, that judges and magistrates are being “swept up in a moral panic.” Macdonald also raised a second, separate concern: the variation between sentences. While careful to say he was not aware of all the facts, he said that “wildly different sentences” for relatively similar offences is simply “not justice.”
Neither of these concerns is especially new. The settled view of myself and many colleagues inside the last Labour government was that sentencing exhibited these and other problems on a systemic basis. Magistrates and judges are influenced by media coverage—and at the extreme, can get swept up in “moral panics,” even though they angrily deny the suggestion. There is also an unacceptable degree of sentencing variation. Different sentencers and courts routinely give very different sentences for similar crimes. This isn’t restricted to times of crisis: the only difference is that usually no one notices. Again, the senior judiciary tend to deny this, though their rebuttal is undermined by a lack of familiarity with the actual data.
The third problem can be traced to the broader phenomenon of “sentencing drift.” The Strategy Unit estimated that around half the increase in the prison population since 1995 was due to policy changes—longer sentences for violent and dangerous criminals—while the other half was due to a general upward “drift” in sentencing decisions. The fourth and final problem lay at the feet, not of magistrates and judges, but of government: our failure to coordinate prison building plans with sentencing trends. We were rightly criticised for failing to get out ahead of the rising prison population, with the result that the prison estate was continually managed close to capacity,…