UK: Cameron's Way - Re-inventing 18th Century Penal codes for his Tory-expanded underclass Print E-mail
 London ~ Wednesday, 17 August 2011, page 1

Tories' reaction to riots 'bonkers', say Liberal Democrat MPs

Comments from Lib Dems reveal deep concerns over David Cameron's uncompromising law and order agenda

By Allegra Stratton, Polly Curtis, Maev Kennedy and James Meikle

Nick Clegg has sought to slow down a fast and furious run of Tory policy suggestions, including plans to evict the families of rioters from council houses. (Rui Vieira/PA)

Liberal Democrat politicians indicated on Tuesday that they have deep concerns over David Cameron's uncompromising post-riots law-and-order agenda, with the party's home affairs spokeswoman in the Lords telling the Guardian there should be "zero tolerance with zero tolerance".

Lady Hamwee, who led the Lords revolt against Tory plans for elected police commissioners earlier this year, said the pledge by the prime minister of zero tolerance on criminality was taking matters too far. Her comment suggests Cameron will meet stiff resistance when parliament returns in September.

Lib Dem backbenchers went further when contacted by the Guardian and accused their coalition partners of short-termism and kneejerk reactions.

David Ward, MP for Bradford East, described plans to withdraw offenders' benefits as "nuts", and Tessa Munt, the MP for Wells, said the plans were "bonkers, bonkers, bonkers". She said: "Frankly, this all smacks of headline grabbing by Conservatives, not calm, rational policy-making."

The vice-chair of the party's federal policy committee, Evan Harris, said he would table an amendment at the party conference asking members to vote to block Cameron's contemplation of barring individuals suspected of causing social unrest from Twitter and Facebook.

On BBC2's Newsnight, Liberal Democrat home affairs spokesman Tom Brake said: "Clearly there are cases where offenders who have committed very serious crimes should expect very serious sentences and that is what I expect to happen. But there have been some cases where people who have committed petty offences have received sentences which, if they had committed the same offence the day before the riots, they would not have received a sentence of that nature.

"This should be about restorative justice, in other words making people acknowledge the offences they have committed and preferably if the victims want it, actually sit down face to face with the victims so they can hear from the victims the impact they have had, but it should not be about retribution."

These signs of Lib Dem disquiet emerged after the party's leader, Nick Clegg, sought to slow down a fast and furious run of Tory policy suggestions, including plans to evict the families of rioters from council houses and a consultation on halting benefit payments to offenders.

The deputy prime minister instead stressed plans to rehabilitate offenders through the government's work programme, softening the hardline language used 24 hours earlier by the prime minister. He also announced a cross-party inquiry into the causes of the riots after brokering a deal between Cameron and the Labour leader, Ed Miliband.


Clegg appeared to put the brakes on the benefit withdrawal plans, saying they would not be entered into without extensive consideration. He told a press conference in Whitehall: "We are going to take our time to look at this. Of course you need to be proportionate, of course you need to be careful, of course you don't want to create unintended consequences where the taxpayer ends up footing more of the bill or we create more social problems or problems of law and order."

Hamwee warned her party would take a dim view if Cameron pushed ahead with a "zero tolerance" approach. "I am worried," she said. "I think there is something in the 'broken windows' theory of policing – that you can bring down crime by catching things early – but not zero tolerance.

"I also think it is very important not to make policy on the hoof. My instinct is that it would be a great pity if what [the justice secretary] Ken Clarke has been doing – finding a better way of sentencing – was to be undone. If it is, we will be taking a backward, regrettable step."

One senior Lib Dem government figure, who wished to remain anonymous, suggested the party would push to derail Cameron's plans for elected police commissioners. The legislation has not yet been passed and is due for consideration again in the autumn.

The party's welfare spokeswoman, Jenny Willott, echoed deputy leader Simon Hughes's opposition, laid out in the Observer on Sunday, to plans to evict people from council houses.

She said the rehabilitation of people who had rioted required them to have enough money to put a roof over their heads and to eat. "I feel strongly, I don't think we can cut benefits," she said. "I do understand that people feel strongly about this and so instead I think there is something to be said for taking a criminal record and whether someone was involved in the riots into account when considering the allocation of social housing. But what is currently being proposed is counter-productive."

At his press conference in London on Tuesday, Clegg said he wanted to end the "dismal cycle of repeat crime" by hardcore criminals. The majority of adults charged with riot-related offences already had a criminal record, he said. "We need to ensure that the treadmill, this dismal cycle of repeat crime, is stopped. We have thousands upon thousands of victims needlessly hurt because we have failed … to stop the cycle of repeat crime."

In an apparent dig at his coalition partners and the opposition, he said there was a tendency for parties to adopt "cardboard cutout" positions to social problems with one side blaming the problems on a breakdown in society and the other blaming government policy.

He rejected calls from the Tory backbenches for a marriage tax allowance to be introduced in the belief that it could help stabilise families. But he stressed the coalition was committed to giving tax relief to the poorest before the wealthiest after George Osborne's suggestion that the 50% rate of tax was under review.

"The coalition is very clear that what takes precedence if you've got money and the ability to provide tax relief to people is tax cuts for millions of people on middle and low incomes," he said.
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 London ~ Thursday, 18 August 2011

Leading article: There can be no place in justice for political expediency

Ministry of Justice sentencing figures support the idea there has been a sharp change in practice

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.

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 London ~ Wednesday, 17 August 2011, page 26

Fact. There is a link between cuts and riots

We've studied a century's worth of social unrest and the data suggests austerity measures can lead to riots
By Jacopo Ponticelli and Hans-Joachim Voth

Incidents of police brutality, such as the beating of Rodney King in LA in the 90s, can provide the spark that leads to conflagration. (Peter Turnley/Corbis)

When London stopped burning, the political debate about the causes of unrest began to heat up. At one end of the spectrum, Ken Livingstone blamed the government's cutbacks; at the other, David Cameron attributed the unrest to criminal behaviour, pure and simple. Many of the cuts announced by the coalition government haven't been implemented yet; but it is also true that there is real deprivation in many parts of London, and local services have been cut in some areas already. So, where do sudden conflagrations such as those in London last week come from?

A constructive way to approach such a complex question is to distinguish between the incidents that touch off unrest, and the underlying causes that make it more likely. When a petrol station burns down, you don't just want to know who dropped the cigarette; you want to know why all the combustible fumes escaped. Social unrest and instability is typically difficult to explain. In most years, nothing happens; then, suddenly, violence erupts. Academics have tried to understand which factors are involved in creating explosive social environments. According to work on US race riots by the economist Ed Glaeser, for example, ethnic heterogeneity in a neighbourhood increases the probability of unrest. So does unemployment. Poverty, on the other hand, seems to play a smaller role.

In a recent study, we focused on the link between austerity measures and unrest. We analysed a large number of countries, over almost a century, to unearth some empirical regularities. In two studies, we analysed unrest in 28 European countries from 1919 to 2009, and in 11 Latin American countries since 1937. What we found is a clear and positive statistical association between expenditure cuts and the level of unrest.

To construct our measure of unrest, we looked at five indicators: riots, anti-government demonstrations, general strikes, political assassinations, and attempted revolutions. In a typical year and country, there are about 1.5 incidents of this type. The more you cut, the more incidents you get. By the time austerity measures hit 3% or more, the number of incidents has doubled. Interestingly, for the UK, the pattern is even stronger: for every percentage point of cut-backs, instability surges by more than it does on average in the rest of the countries. Importantly, these effects are in addition to the well-known relationship between lower growth (associated with more unemployment) and higher instability.

While the pattern holds throughout our sample, the relationship is not deterministic – the chance of unrest goes up as governments retrench, but it is not guaranteed. Many incidents, such as police brutality, as in the case of Rodney King in LA, or the killing of Mark Duggan in London, can provide the spark that leads to a conflagration. One reason why times of austerity could create the right environment for massive unrest is, in our view, that cut-backs usually hit some parts of the society disproportionately more than others.

Interestingly, tax increases do not have the same effect. While they are also associated with greater instability, the effect is small, and the link weak. This suggests that governments wanting to retrench, but worried about social instability, should consider tax increases, first and foremost.

These findings cast doubts on established wisdom. Until the sovereign debt crisis of 2010, the consensus among economists was unambiguous – expenditure cuts can be growth-enhancing. Also, there was a widely accepted view that there is no penalty at the ballot box for cuts. Governments that implement huge austerity programmes are just as likely to win as the ones doing nothing. While recent research by the IMF casts some doubt on the economic benefits, our results question the political economy side of the story – cuts may not imperil re-election, but they create the risk of major social and political instability.

Nobody knows where and when social unrest is going to happen again, nor the scale it will take. However, history suggests we should not underestimate the consequences of social chaos. Germans to the present day remember Heinrich Brüning, known as the "hunger chancellor", who led the country from 1929 to 1932. He presided over an unprecedented austerity programme. At the same time, the Weimar Republic, Germany's first attempt at democracy, disintegrated amid a wave of social unrest and political violence.

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 London ~ Thursday, 18 August 2011, page 4

Harsh riot sentences could cause appeals logjam, say rights groups

Riot-related jail terms must be balanced against justice and proportionality, say campaigners

By Owen Bowcott, Helen Carter and Shiv Malik

Adrienne Ives who reported her 18-year-old daughter and Olympics ambassador Chelsea to police for rioting, leaves court. (Andy Rain/EPA)

Civil liberties groups have warned that the court system will be clogged with appeals by people convicted of riot-related offences seeking to overturn lengthy terms of imprisonment.

"We know the courts are swamped with cases and handing down hurried and overly punitive sentences [that] will result in many criminal appeals which will act as a further drag on the system," said Andrew Neilson, director of campaigns for the Howard League for Penal Reform.

"While it is understandable that the courts have been asked to treat the public disturbances as an aggravating factor, this should be balanced against the key principle of criminal justice – that of proportionality."

The Sentencing Council for England and Wales, which produces guidelines for judges, has not met since the riots and insisted on Wednesday that there had been no discussions regarding the appropriate sentencing of rioters. The Ministry of Justice also denied asking the council to amend its guidance on future unrest.

Gillian Guy, a solicitor and member of the council and chief executive of the Citizens Advice Bureau, said that if magistrates had been told to disregard the guidelines, "then they must be satisfied that to apply the guidelines would be contrary to the interests of justice".

She added: "There's not one sentence for each crime. There has to be a range, because there are various factors that come into play. There's room within the range to take into account … other activity that's going on. We look for consistency and fairness and whether people understand what's going on."

But there was further evidence of sentencing inconsistency when it emerged that a 19-year-old from Bream, in Gloucestershire, who posted messages on Facebook encouraging people to vandalise a local shop during last week's riots, had not been brought to court – in contrast to two youths jailed for a similar offence at Chester crown court on Tuesday.

Joshua Moulinie had posted a message on his Facebook wall urging people to damage the Spar store in Bream. He was told to write a letter of apology to the shop owner by way of punishment. He has since posted defiant comments on Facebook, saying he was not sorry for the remarks.

"It was a very, very blatant joke, I'm not sorry at all for it," he wrote. "I'm sorry for the reaction it caused, but not for the action. Also can I make it very clear I never intended to riot? The police are sound. I have no problems whatsoever with them, they didn't even charge me."

The solicitor representing Jordan Blackshaw, 20, who was jailed for four years at Chester crown court for posting Facebook messages, confirmed he would be appealing against the sentence. Chris Johnson said: "Jordan originally set up the Facebook site for a joke, which he accepts was in bad taste and inappropriate, and he is remorseful."

When assessing a sentence, judges are entitled to take the need for deterrence into account. According to the Sentencing Council's standard list of the five purposes of sentencing, "the reduction of crime (including its reduction by deterrence)" comes second after "punishment of offenders".

It states: "This includes individual deterrence (aimed at preventing the individual offender from committing another crime) and general deterrence (using the sentence imposed on an offender as an example to deter others from committing a similar offence)".

Since the Coroners and Justice Act 2009 judges have been instructed that they "must follow" sentencing guidelines rather than merely "have regard to" them. They can still disregard them where they believe following them would be "contrary to the interests of justice", but they must explicitly state their reasons.

Sentences confirmed by the Court of Appeal following the Bradford riots of 2001 show that the judges have previously upheld relatively long sentences against those convicted of public order offences. One man with no previous relevant convictions was sentenced to 4 years and nine months in jail for holding a metal bar and occasionally throwing stones at police lines.

The Crown Prosecution Service confirmed that no one has yet been charged with rioting following last week's disturbances. The offence, which is complex to prove, requires 12 people or more to be engaged in a common purpose.

In Tottenham, a father who fled his burning flat with his two children after it was attacked by rioters has called for proportionate sentencing and said prison for small-time looters "will not solve anything". Community worker Mohamed Hammoudan, 46, lost all his belongings in the fire that destroyed the Allied Carpets building in Tottenham, north London, on the first night of rioting on 7 August. "We can't just use this, [prison sentences] as a blanket way of resolving social problems," he said.

The Ministry of Justice defended the apparent disparity in sentencing in some offences. "Magistrates and judges are independent of government," a spokesperson said. "Their sentencing decisions are based on the individual circumstances of each case and offender. That is why different offenders may be given different sentences for what might appear to be similar crimes.

"To provide a consistent base for these decisions an independent body of experts, the Sentencing Council, set guidelines. These provide a range of sentences that could be given for particular types of crime, including theft, burglary or robbery."

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 London ~ Thursday, 18 August 2011, G2 page 4

England riots: are harsh sentences for offenders justified?

The government says it wants to send out a message. But is there any moral justification for such tough punishments?
By Julian Baggini

Too heavily punished? Perry Sutcliffe-Keenan and Jordan Blackshaw (guardian.co.uk)

If it is a fundamental principle of justice that the punishment should fit the crime, then why is it that almost overnight, legal fashions have changed and the courts have suddenly embraced the baggy look? As the Liberal Democrats' home affairs spokesman Tom Brake put it: "There have been some cases where people who have committed petty offences have received sentences which, if they had committed the same offence the day before the riots, they would not have received a sentence of that nature."

Such as Ursula Nevin, a mother of two who was asleep when the Manchester riots were raging, but who was sent down for six months because she accepted a pair of looted shorts from a friend. Or Nicholas Robinson, who will pay with six months in prison rather than £3.50 for a case of water he took from a smashed-up Lidl in Brixton. Or Jordan Blackshaw and Perry Sutcliffe-Keenan who got four years each for using Facebook to incite a riot that never took place. All are in their early 20s, none have previous convictions.

Senior figures in the legal services are making no secret of the fact that sentencing for the riots is harsher than normal. Manchester crown court judge Andrew Gilbert QC said: "I consider that the sentencing guidelines for specific offences are of much less weight in the context of the current case, and can properly be departed from." Her Majesty's Courts and Tribunals Service has issued advice to magistrates that they should consider giving custodial sentences to riot-related crimes that would normally be punished less severely. And the Crown Prosecution Service has issued guidance to prosecutors to "ask the court to lift the anonymity of a youth defendant when they believe it is required in the public interest that the youth be identified".

The urgent question that all this raises is whether this swift shift to harsher punishment is compatible with a justice system that promises to treat everyone equally. It might seem obvious that the answer is no. For isn't it a basic principle of justice that like is treated as like? That's not only a legal principle; it's a deeply moral one. Fairness requires that what is morally good for one goose is morally good for another, and also for the gander, unless there is a relevant difference between them.

But therein lies the rub. All morality and justice require is that relevantly similar cases are treated the same, not that every case of the same general type is treated identically. No two crimes are completely alike: at most they are very, very similar. So punishment cannot be expected to fit the crime if it only comes in one size and one style, irrespective of who has to wear it, where and when.

To accommodate this need, the justice system needs to find a middle way between two unsustainable extremes. On the one hand, it cannot allow for bespoke tailoring for every sentence, as that would leave judges and magistrates with too much power that would result in an even more uneven administering of justice than we already have. On the other, sentences can't be completely off-the-peg, as that would allow too little flexibility to respond to morally relevant differences between two cases of, say, water theft. So what we have is something in-between: judges have a range of options and can make a limited number of bespoke alterations, within certain constraints.

Given that some version of this system is the closest we can get to fairness, the key question concerning riot sentencing is not whether it is permissible for the system to change sentencing according to circumstance. Clearly it must be. The real question is whether or not these particular circumstances justify these particular changes. Is there anything about crimes committed in the context of riots that takes them "completely outside the usual context of criminality", as Gilbert put it?

There is one such factor, but if anything, it points to treating people more leniently, not more harshly. That is to say, human beings are easily swept up in the herd and can find themselves doing together what they would never do alone, for better and for worse. And it seems quite clear that many normally law-abiding people got caught up in the riots. If part of the purpose of punishment is to deter, reform and rehabilitate, then the last thing we should do is lock up hitherto lawful citizens with career criminals. Nothing seems better designed to turn what would otherwise be a one-off aberration into a gateway to further crime.

The riot context could therefore be seen as a mitigating, not aggravating, factor. This would not be a good reason to actually treat offenders more leniently. If we want people to behave responsibly we have to hold them fully responsible. But it certainly at least acts as a counterweight to any considerations that would want us to treat them more severely.

Take, for instance, the stiff sentences Blackshaw and Sutcliffe-Keenan received for incitement to riot. Usually, the fact that they failed to rouse any kind of rabble would have meant they got off more lightly than had actual violence been provoked, which is itself a morally dubious principle. If you try to do something wrong, then you are as blameworthy as someone who tries and succeeds. To punish you less is to reward incompetence, not virtue. But given that is the way the law works, there is still an argument that the young men probably wouldn't have committed the crime at all had they not fallen witlessly into the anarchic mania of last week. So any reason we might have to want to come down harder on them than usual should be tempered by the knowledge that, under normal circumstances, they probably wouldn't have incited violence in the first place.

As for what these justifications for extra sternness might be, various possibilities have been bouncing around over the past week, in a loose, rather inchoate way. The most recurrent theme is the need to "send out a message". This is the line taken by Gilbert. "The principal purpose is that the courts should show that outbursts of criminal behaviour like this will be and must be met with sentences longer than they would be if the offences had been committed in isolation." David Cameron also defended the courts along the same lines, saying: "They've decided to send a tough message and it's very good that the courts feel able to do that".

The idea that sentencing should be governed by the desire to send a message strikes many as inherently unjust, since it inevitably means treating people differently according to how crimes appear, rather than simply how they are. But if you accept that punishment is partly justified by the need to deter, then there is no avoiding this unpalatable consequence. It may be necessary to come down harder on one crime rather than another, not because it is a worse crime, but because people are more inclined to do it unless they are given strong reasons not to. It is, perhaps, the same principle behind the obsession of many religions with sex. It is not that church leaders really believe that fornication is worse than assassination. It's just that people are more tempted to copulate than kill, and so you have to come down disproportionately hard on it if you want to put people off.

In the rioting case, the best argument for disproportionate sentencing would be that the looting and violence threatened public order. We saw how a kind of contagion took off, with violence spreading first around London and then to other cities. In such a situation, stealing a case of water might have consequences that it doesn't usually have. It is no longer an isolated crime but one that is part of a toxic spread of disorder. A normal shoplifter does not inspire copy-cat theft, so can just be punished solely for what they have stolen. A looter, however, has not just stolen an object but recklessly spread riot fever. So, the argument goes, it is imperative that a high price is exacted in order to prevent others from doing the same.

The logic is appealing, but in practice it just doesn't seem to work that way. If some people did get high on the adrenaline of last week, they didn't need excessive sentences in order to sober them up. It was enough to realise that innocent people living near shops were in fear of their lives, and that people were being arrested, charged and convicted normally.

Indeed, it seems that excessive sentencing can actually have the potential to backfire. One friend of a looter who was given six months for stealing two tennis rackets in Walworth, south London, told the Evening Standard that it seemed manifestly unfair, when MPs who fiddled their expenses had got only four months. Far from being a deterrent, this seemed to spur her on. "It makes me feel like I wish I had been part of the riots," she said. "And if it happens again next time I will be there with all guns blazing so that any sentences will be justified."

That reflects a problem with the whole "sending a message" approach to justice: the sender is never in control of what will actually be heard. In this case, the message many are getting is that, once again, "the system" is coming down harder on the unkempt masses than it does on the establishment. That is a message likely to provoke more unrest, not calm it. How can it help if people who already have a deep sense of disengagement from mainstream society believe that even the legal system treats them differently?

If sending a message really is important, in this case that is all the more reason not to change sentencing to fit the circumstances. People need to be reassured that this is indeed a fair society, in which all are equal before the law, in which no group is treated more harshly than another, and neither courts nor police take sides.

Other than the conjoined twins of deterrence and sending a message, there have been surprisingly few reasons offered as to why extra-tough sentencing should be favoured, despite the popularity of the measure. The main driver for retribution seems to be more visceral and emotional than philosophical. But could the mere fact that this feeling is widely shared be justification enough? If there is public pressure for harsh sentencing, then in a democratic society, shouldn't that pressure be yielded to?

It is indeed a standard justification of punishment that it should stand as some kind of expression of society's outrage. But there is a vital difference between reflecting the settled will of the people and echoing its shifting moods. Justice cannot be served by doing the latter. Indeed, it would be a terrible irony if the response to an illogical, harmful outbreak of infectious mob violence were an illogical, harmful outbreak of infectious mob justice. At times like these, society as a whole needs to show that it is better than its problematic part.

The right response to this outbreak of exceptionally harsh sentencing is therefore pretty much the same as the right response to the outbreak of exceptionally anarchic violence. We need to understand why it has happened and the real social problems and issues that led otherwise decent people to support, or at least be sympathetic, to it. But in the end, calmly and with good reason, we need to explain why it is wrong, and put an end to it.
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