The prime minister “knows which levers to pull”, a Downing Street advisor told the BBC at the weekend.
As a former director of public prosecutions, Sir Keir Starmer KC understands the criminal justice system. It was his idea, the BBC report suggested, that the current head of the Crown Prosecution Service, Stephen Parkinson, should speak to the media about charges arising from the disturbances over the past two weeks.
And, sure enough, a series of punchy comments from Parkinson led the Sunday Times yesterday.
As the paper reported, many of those prosecuted so far have been charged with violent disorder, which carries a maximum sentence of five years. However, Parkinson said the more serious offence of riot — which carries a penalty of up to 10 years — was now under consideration.
He added:
We warned of the consequences and we will deliver those consequences.
As well as seeing a more significant number of charges coming through the system in the next few days, [the cases are] going to include more serious charges with stiffer penalties.
It’s not about exacting revenge, it’s about delivering justice.
We’re used to hearing this sort of thing from district attorneys in the United States. But prosecutors in the United Kingdom don’t usually mention sentencing. That, after all, is a matter for the courts.
There was also tough talking yesterday from the justice secretary, Shabana Mahmood. “Crimes must lead, unerringly, to punishment,” she wrote in the Observer:
The swiftness of our courts has been essential to this. Judges have handed down sentences within days of an arrest. They have even chosen to broadcast their sentencing remarks live, from Liverpool crown court on Thursday and Leeds crown court on Friday — a decision I welcome wholeheartedly.
I think “agreed” would have been more accurate than “chosen”. It was the news organisations that requested permission to record the judges’ sentencing remarks. The decision to broadcast them live was taken by the news channels. But the justice secretary was correct to say that the courts have moved unusually quickly.
Mahmood ended her article with observations that might have been made more appropriately by the home secretary:
The message from this government and from the entire criminal justice system is clear: if you stoke fear, or take part in violence, the full force of the law will be brought against you. Justice will be done.
Messaging
Starmer and Mahmood have a delicate path to tread. The director of public prosecutions operates under the “superintendence” of the attorney general, not under the law officer’s directions. The judges operate independently of the government: listing is a judicial function. And criminal justice policy is a matter for the Home Office.
So the prime minister and justice secretary cannot tell prosecutors what charges to bring or tell judges how quickly defendants should be sentenced. The most they can do is ask.
On the other hand, everyone knows the importance of messaging. Legal folklore holds that the Notting Hill race riots of 1958 came to an end immediately after Mr Justice Salmon passed sentences of four years imprisonment on nine youths who admitted charges of wounding and assault. But this was not quite instant justice: the defendants were arrested on 24 August and sentenced on 15 September.
And judges don’t need to be reminded that deterrence is an objective of sentencing. The Sentencing Act 2020 — also referred to as the sentencing code — says the purposes of sentencing are:
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the punishment of offenders,
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the reduction of crime (including its reduction by deterrence),
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the reform and rehabilitation of offenders,
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the protection of the public, and
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the making of reparation by offenders to persons affected by their offences.
Judges must have regard to these provisions when dealing with adult offenders. And they do — as we saw last week.
Sentencing John O’Malley and William Nelson-Morgan to 32 months’ imprisonment on Thursday for separate offences of violent disorder in Southport and Walton, Judge Menary KC, sitting in Liverpool, said:
It has long been recognised that there is an obligation on sentencing courts to do what they can to ensure the protection of the public, whether in their homes or in their businesses or in the streets, and to protect the places where they live and work. In seeking to achieve this aim, the courts will typically impose severe sentences for offences involving or connected to large scale and violent public disorder, intended to provide both punishment and deterrence.
Sentencing Jordan Parlour to 20 months imprisonment on Friday for publishing written material that was threatening, abusive or insulting, intending thereby to stir up racial hatred, Judge Kearl KC, sitting in Leeds, said he took into account “the purposes of sentencing, in particular in relation to this case, punishment and deterrence”. Parlour had published a Facebook post encouraging others to attack a hotel in Leeds that housed asylum-seekers.
Cause and effect
Perhaps the most interesting observation reported by the BBC’s political correspondent Joe Pike yesterday was this:
The prime minister and his aides have pointedly avoided answering questions about the underlying causes of the riots.
I’m told the reason for this message discipline is a concern that discussing causes might be misinterpreted as suggesting some of the unrest was justified.
As Kearl observed when dealing with another case on Friday, “the law applies to everyone, no matter what colour, race, religion, or political persuasion they are.”
The senior Crown Court judge in Leeds was sentencing Sameer Ali and Adnan Ghafoor to terms of 20 months and 18 months for affray. They had encountered a group of four white men who had been protesting about immigration. Racist comments were said to have been made by one of the four.
“There was then an outbreak of violence in a public street in the middle of Leeds and [it] was started by the group of which you were a part,” Kearl told the two defendants. “It lasted for around 30 seconds and involved punches and kicks by your group towards those whom you had attacked… This was a group attack involving in excess of 10 men in the circumstances of a heightened state of public concern and anxiety to which you have contributed. Those who were attacked were kicked and punched by your group.”
Comment
Facing his first challenge as prime minister, Starmer needed to get onto the front foot. After a slow start, he and his ministers seem to have kept within their lanes. So has Parkinson. But they must be careful not to stray.
There was certainly no need to tell the judges that prompt sentencing would act as a deterrent.
And there was probably no need to tell the Crown Prosecution Service to prioritise crimes of disorder, even if that meant delaying other cases. The service has been using CPS Direct, a team of 250 prosecutors and support staff who can advise police forces across England and Wales at any time of day or night on charges against suspects who, the police believe, cannot safely be released on bail.
But perhaps the most important message of all is one that should be directed at the public in general and some foreign commentators in particular. As summed up by Kearl in the affray case, it is that “the law is there to protect everyone in our society”. There must be no distinction.