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Monday, 26 September 2011

English riots - appropriate sentences

A short comment on sentencing the rioters, published on Halsbury's Law Exchange 

Sentencing rioters will take place against a backdrop of public anger and media outrage. In any such instance it is important that the rule of law applies and the court is not swayed simply by the unpopularity of the offender or offenders before it. 

That said, two factors come into play as part of the application of the law. First, it is a normal part of the sentencing process to weigh aggravating and mitigating factors. In the case of the rioters, taking advantage of the police being overstretched will not tell in an offender's favour, though it might be a mitigating factor if one could argue that an offender was normally a law abiding person who acted spontaneously, rather than a career criminal. 

Secondly, deterrence is a legitimate sentencing objective, and discouraging the public from starting civil unrest or taking advantage of it for criminal purposes is a factor not present in ordinary theft cases. On that basis, rather than the more crude goal of retribution, longer sentences for rioters can arguably be justified. (Not that retribution is wholly irrelevant to sentencing.)

One other aspect that the rioters give rise to is the cost and other resources associated with a large increase in offenders.  It will be tempting for more lenient sentences to be passed, and a greater proportion to be non-custodial, simply on the basis that the country is struggling to accommodate prisoners as it is.  Of course in theory this should have no impact.  One wonders if it will be the same in practice.  

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