By Felicity Gerry, Barrister

As David Cameron calls for tougher sentences for rioters and looters, never has it been more clearly demonstrated both that the public don’t understand the legal process and that the tick box guidelines issued by the Sentencing Council are a waste of time. As advocacy sinks in the mire of “starting points” and “features” rather than human interest, judges will be lambasted anyway for trying to impose suitable sentences. As for the rioters, the public would lock them all up and throw away the key. The Sentencing Council tries to explain why sentences differ but eventually all everyone will argue about is whether the sentences were right.

 Before a rioter can be sentenced he must be convicted of a crime whether on his/ her own plea or after a trial. I suspect, whilst evidence of theft and violent disorder will be readily available from eye witness and CCTV footage, it will be harder to prove who organised a riot, who started a fire and who caused injury – much will depend on evidence gathered after the riots die down when the police find the time to review it all. The consequence will be that whilst thousands took to the street, far fewer will be dealt with in court and then the sentences will depend on the charges the CPS choose.

 Someone will eventually collect statistics on sentencing for the recent events which will not satisfy public opinion. The Guardian has already published masses of statistics on the cases so far. In the months to come, it may well be possible to cause outrage by saying that the majority dealt with for their part in these shocking and unusual events did not go to prison or only received short sentences. Such an approach would be misleading if it relates to individual offences of theft and damage committed by children, young people or parents. In fast moving events, the police are not generally selective in who they apprehend. Initially they will have taken hold of those committing obvious crimes and/or putting the public at risk. Courts then mete out sentences based on the facts available in relation to that individual.

 Those appearing for swift summary justice in Magistrates Courts  were dealt with by way of a mixture of custodial and non custodial sentences based on their crime (theft, criminal damage etc). The courts recognised that the sentences were aggravated by having taken place during serious public disorder. For more serious offending the Magistrates committed those who pleaded guilty to the Crown Court for sentence (generally burglary so far). Exhausted magistrates in 24 hour courts did what they thought was right, not necessarily what was set out in the Guidelines, which specifically state that they can be disregarded. Future Crown Courts have the power to hand out sentences measured in years once violence, riot and arson is proved.

 Criminal Law is a human process. An 11-year-old looter will be dealt with differently from a 21-year-old university student and both will be more leniently dealt with than a previously convicted violent offender. Already on Twitter it has been noted that it appears some rioters have been given longer sentences for swearing at police than assault without proper details of facts or who was sentenced. No guideline is going to help with the specifics any more than a criminal case can be properly represented in a tweet of less than 140 characters. Setting out in a booklet or on a website what the court might do on sentence is a bit like stating the obvious. Confirming these are guidelines which need not be followed makes them almost pointless. That published guidelines cannot cover every eventuality was recently highlighted when the Lord Chief Justice issued his own guidelines in relation to rape in the victim’s home, not apparently covered by the existing guidelines issued by The Sentencing Council

The idea of guidelines is that, together with a website and thousands of booklets issued to judges and Magistrates, the public would be informed and sentences would be broadly consistent. The only time it has been used out of court in recent history is when sympathetic journalists discovered that Charlie Gilmore got more than some sex offenders for swinging from the cenotaph.

 Interestingly, public awareness of sentencing ranges also allows offenders to work out their sentence without speaking to a lawyer, thus removing the potential deterrent of not knowing what might happen if a particular crime is committed. This was graphically demonstrated in a radio interview this week when a young male caught at the scene of looting said he was keen to take some “free stuff” and had no concerns about prosecution: “What can they do to me anyway?” He said “Give me an ASBO? I’ll take that”. No doubt his view reflected the majority opinion of the masked groups marauding through the city streets of England.

 The Sentencing Council is masterfully chaired by Lord Justice Leveson, charged with the duty to bring such guidelines to fruition after proper consultation. It is no mean feat and the results show great thought and care. The problem is that most cases don’t fit neatly into the boxes. The creation of this body was at a time when we thought we could afford the luxury of someone else setting out on paper what lawyers and judges deal with every day. Since Lord Justice Leveson will now have his work cut out with the hacking enquiry, perhaps it is now time for the Government to allow the Sentencing Council to relinquish its functions to the existing Court of Appeal. After all, it doesn’t require much thought to work out that the sentence for hacking Milly Dowler’s phone should be more than hacking Sienna Miller’s.

 Once the rioting has died down the police will have to get on with serious business of proving who was responsible for assaults, riot and arson (the real crimes which shocked the nation) in addition to thefts and damage. Lists in a booklet of what a court might do are not going to help in this exercise where public approbation should be reflected in the sentence.

 Any brief discussion with Crown Court advocates reveals that I am not alone in thinking that the independence of our judiciary means that sentencing is not a tick box exercise but must truly reflect the facts, the individual situation of an offender as well as public opinion. Judges do this every day, generally without losing perspective but I predict another riot over the ultimate sentences which will reflect what can be proved, pleasing no-one regardless of the printed sentencing ranges.

 *First published on Halsburys Law Exchange on 12th August 2011