A Convicted Rioters Involved Criminology Essay

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The term disproportionate has been adopted by the media academics to form somewhat of an explicit link with the 2011 riots. The purpose of this study was to critique the existing information and data as well as to explore other avenues to try and determine whether the sentencing of riot-related crimes was proportionate and if this type of sentencing practice was fair. Through exploring several key areas it was found that the term disproportionate had different meanings and connotations depending on when and how it was viewed. This led to deeper discussions and sometimes depicted proportionality and disproportionality to have equal weighting in some arguments. Fairness was found to be linked to proportionality but by its very nature its interpretation was varied based on the context in which it arose. The study concluded by finding the sentencing practice of riot-related offences to be overall disproportionate. The sentencing pattern was seen to be more unfair than fair however persuasive arguments do exist which could alter one's perception on this point.

Introduction

This study has been created and tailored to critically analyse whether sentencing during the August 2011 riots was disproportionate and fair. The subjective term of disproportionality will be deconstructed and discussed throughout the study to give a wider understanding into proportionality and its negative and positive connotations. The opening chapter will offer up a mainly descriptive stepping stone outlining the riot story and explaining what happened where. This will help to give a strong foothold and context for the rest of the study. The next chapter will outline and expand on social theories of deviance. This will not only help to understand why people turn to criminality but it will also help to explain how and which sentencing purposes and aims are the most effective form of punishment. Understanding this can help to explain whether certain types of sentences are better or worse than others and whether the courts sentence in the best interest of society the offender or both. Understanding this will add to the discussions on whether riot-related sentences were proportionate. The next chapter will be inherently concerned with the statistical data pertaining to the 2011 social disorder. Several questions will be asked and then answered using a range of numerical data. This will help to offer up explanations as to whether sentencing lengths and types were proportionate in relation to previous years as well as outline offender profiles and a riot geography which will be discussed and expanded upon to discover whether proportionality and fairness were achieved by the courts. The following section will build on the statistical findings of the previous chapter to discover whether the courts deviated away from the parameters allowed by the law. Several sub-discussions will arise offering up explanations as to whether deviation was both proportionate and fair in relation to academic observations made during and after the riots. The penultimate chapter will look at the interaction between sentencing practice and the public and will concern itself with two key pieces of research regarding public opinion to both the riots themselves but also to the response from the law. In this, comparisons and differences will be indentified between what society thought was fair and what the courts ultimately decided. This will further expand on discussions into proportionality and its prominence in the sentencing witnessed during the riots. This will be then followed by the final chapter on the effect of social media in the sentencing process. The prevalence and prominence of social media's role in sentencing practice will be discussed using case law, judicial and governmental responses. Once outlined and explained the relationship between sentencing and social media will be scrutinised to explain if it contributed to (dis)proportionality and fairness. The findings will then be re-assessed in a summarising conclusion and the original question will endeavour to be answered using the findings from the study.

Lighting the Touch Paper

In order to undertake a thorough and comprehensible viewpoint on the 2011 riots, as well as the criminal justice process which followed, one must understand the events and circumstances in which they were triggered. So what exactly happened to spark the 2011 riots? In the late afternoon of Thursday 4th August 2011, 29 year old Mark Duggan was shot dead by police on Ferry Lane, Tottenham, north London. At the time the reasons behind the shooting were not clear and "with apparently limited communication, the vacuum filled with rumour." [1] Major concerns grew within the community as to the lack of information given surrounding the circumstances which led to the death of Mark. The Duggan family learned of Mark's death through the media and upon request to the police for information their pleas fell on deaf ears. [2] On the morning of 6th August, the Duggan family, along with friends and relatives, embarked on a peaceful protest from the Broadwater Farm estate to Tottenham police station. A family friend of Mr Duggan said the man's friends and relatives had organised the protest because "something has to be done" and the marchers wanted "justice for the family." [3] The protesters remained outside the police station and rallied for a senior police officer to speak to regarding Mark's death. The police refused to engage with the protester's requests and as the day progressed into night a larger crowd congregated outside the station. The reluctance of the police to engage with the protesters incited newcomers to the crowd to bring weapons and stir up violence. This violence grew and at 8:30pm a police car was set alight - this was met with a strong police response which ultimately led to the alleged attack of a 16 year old black teenage girl by the police.[ [4] ][ [5] ] It has been argued that this alleged attack was the seminal event which sparked the rioting however the death of Mark Duggan and the now admitted failings by the police in responding accordingly [6] were undoubtedly potent catalysts to the eventual outcome.

From the evening of the 6th August rioting had enveloped many areas of North London with arson and looting taking a strong hold throughout the night. "By 04:30 BST the following morning has dealt with 49 "primary" fires in the Tottenham area and received more than 250 emergency calls from the public." [7] By 22:45pm looting had been occurring in many shops and further petrol bomb attacks added to the growing list of fires. A double-decker bus burnt out and the now infamous Tottenham branch of Allied Carpets was set alight. [8] Saturday 7th August saw rioting expand throughout London extending as far south as Brixton and also saw the first of many arrests. By Monday 8th August social unrest had spread throughout many areas of London, particularly around the east and had also extended to cities outside of the capital. 155 police arrests had been made by 6:15am on Monday [9] with this rising to 525 by Tuesday. Rioting could now be seen in many major cities including Birmingham, Liverpool and Manchester. As the rioting spread the number of riot-related arrests increased with 4 police forces reporting numerous arrests by the early morning of Wednesday 10th August. At 11:30 on Thursday 11th David Cameron made a statement in the House of Commons in which he admitted that there were questions to be answered over the shooting of Mark Duggan. He calls the rioting "criminality, pure and simple" [10] Â and says the courts will continue sitting for as long as necessary to deal with the extra cases. [11] He also says police will be given powers to force people to remove facemasks and coverings where there are reasonable suspicions that they are related to criminal activity. [12] The night of Friday 12th went by peacefully however a large police presence was witnessed in all areas affected by disorder. By Friday 838 [13] people had been charged and the courts were operating swiftly to deal with the large volume of cases. No further disruption was witnessed after the 12th August.

Social Deviance Theories

There have been attempts made by many academics to understand and formulate theories as to why criminality occurs. Four of these main theories will now be explored so as to evaluate whether the criminal behaviour witnessed during social unrest can be categorised and explained. Not only does this help with understanding the underlying causes of crime it also helps to identify the best forms of sentencing practice beneficial to the public, the state and the offender. Finding the right sentence to achieve a reduction in future criminality as well as ensuring justice is procured maintains fairness and proportionality through the sentencing process. The main purpose of this chapter is to offer a sociological understanding of crime and sentencing which will be discussed and built on in later chapters.

The first of the social deviance theories is Functionalism. Functionalists believe deviance plays a crucial role in society and can be used as a tool to challenge people's views. [14] Under the umbrella of Functionalism come several sub-theories. One of these is offered by Émile Durkheim. He believed that deviance is a necessary part of a successful society and argues this by offering numerous different reasons behind why deviance is functional. The first of these is that deviance challenges people's present views. Protesting and forms of rioting are examples of this. Those involved want to be heard but also want to challenge the ideas of what society think to be normal and acceptable. However, Durkheim notes that when deviance like this is punished it often reaffirms currently held social norms. [15] This can be seen to negate the functionalist ideal which dilutes the notion that society's opinions have been changed through this activism. A different subcategory under Functionalism is Merton's Strain Theory. This also agrees that deviance is an inherent part of a functioning society but argues that access to sociably acceptable goals plays a part in determining whether a person conforms or deviates from normal, accepted behaviour. Merton argues that "when legitimate means (for example, a job) of acquiring culturally defined goals (for example, money) are limited by the structure of society the resulting 'strain' may lead to crime." [16] , "Individuals must adapt to the inconsistency between means and goals in a society that socialises everyone into wanting the same thing but only provide opportunities for some." [17] Merton suggested five ways in which people respond to this gap between having a socially accepted goal but no socially accepted way to pursue it.

Conformity: "Persons accept both the societal goals and the legitimate means to obtain them, even if the goals remain out of reach." [18] 

Innovation: "Persons have assimilated the emphasis on culturally defined goals but have not internalised, or do not accept, that they are limited only to the approved or institutionalised means to obtain these." [19] 

Ritualism: A person's realisation that "lofty goals of great pecuniary success" [20] may never eventuate and one's aspirations may have been unrealistic. "But though one rejects the cultural obligations to attempt to get ahead in the world," [21] "though one draws in one's horizon, one continues to abide almost compulsively by institutional norms." [22] 

Retreatism: A person abandons both the success goals of the future and the institutionalised ways of achieving them. These people are often referred to as the 'dropouts' of society. [23] 

Rebellion: A person rejects existing means and goals and these are replaced with new goals and means as attempts are made to build a new society within the existing social structure, but with a definite view to changing that structure. [24] 

The second of the social deviance theories to be looked at is the Social Disorganisation Theory. This describes how crime is most likely to happen in those communities with weak social ties and a lack of social control. [25] Social Disorganisation Theory offers broad social factors as the cause of societal deviance. A person is not born a criminal, but becomes one over time, often based on factors in his or her social environment. Shaw and Mckay argued that "three structural factors - low economic status, ethnic heterogeneity, and residential mobility - lead to the disruption of community social organisation, which in turn, accounts for variations in crime and delinquency." [26] Many of these communities attract minority groups and mix of cultures and values creates a smaller society with different ideas of deviance, and those values and ideas get transferred from generation to generation. [27] Many of those involved in the 1981 riots will have imposed their experiences and beliefs upon their children and they too to their children. This, combined with social pressures to conform to societal norms and expectations, leads to an ongoing displeasure towards to police which arguably incited others in the same position, like seen in 2011, to join-in in somewhat of a support against the state. Groves and Sampson (1989) tested this theory and discovered that poverty, ethnic diversity, and family disruption had a strong positive association with social disorganisation. They also determined that social disorganisation was, in turn, associated with high rates of crime and deviance. [28] A more recent study by Sampson & Bean (2006) revealed similar findings - high rates of poverty and single-parent homes correlated with high rates of juvenile violence. [29] 

The third to look at is the Conflict Theory. This theory incorporates the Marxist idea that there are two groups in society - the owners of the means of production (the bourgeois) and the people who sell their labour (the proletariat). The bourgeois are a small and wealthy segment of society and the proletariat are the workers who rely on those means of production for employment and survival. [30] The centralisation of these vital resources into few hands enables the bourgeois to obtain the means to control the way society is regulated through the law, the government, to other influential bodies. This gives the bourgeois the opportunity to maintain and expand their power in society as well as maintaining that their values and behaviours are allowed to continue regardless of the effect on the proletariat. [31] 

The final theory is Symbolic Interactionism which offers aims to offer up a justification as to why and how society decides what behaviour is conventional and or deviant. [32] A contributing theory to Symbolic Interactionism is the Labelling theory which is the idea that those who have been labelled "deviant" by society gradually come to suppose and accept that this is what they are. Therefore what is considered deviant is determined by the reactions of others rather than the committers of the deviance. Because of this societal judged deviance changes over time. Edwin Lemert expanded on the concepts of labelling theory, identifying two different kinds of deviance that directly influence how someone's identity is formed. Primary deviance arises out of a wide variety of social, cultural and psychological contexts. It does not create any long-term effects on somebody's self-regarding or interactions with others. Those who embody primary deviance still maintain a desire to conform to societal norms in the future. [33] 

Primary deviance can evolve into secondary deviance. This is because a person's self-concept and behaviour begins to change after their actions are labelled as deviant by society. The person may begin to adopt and embrace the role of a "deviant" in rebellion against the society that has labelled that individual as such. Secondary deviance can be so strong that it bestows a master status (the central characteristic) on an individual making their whole being become that which they are labelled. [34] 

The importance of these deviance theories becomes apparent when looking at the main sentencing purposes expounded by the courts. As will be discussed later on the two main purposes explained were the reduction of crime [35] and the punishment of offenders. [36] Although S.142(1) Criminal Justice Act 2003 states the courts must have regard to all of the purposes of sentencing the evidence suggests that the majority of the riot related sentencing carried a deterrence and punitive undertone. The previously discussed deviance theories outline that there are often deeper, underlying, societal causes which cause someone to become deviant. With this in mind should the punishments have found a way of dealing with these issues, should they have found a balance of trying to fix some of the problems but also deterring and punishing or should they have been more punitive in their strive to bring about justice? Arguably sentencing without a forward looking perspective would be disproportionate to good offender management. Sentencing somebody to prison who may respond more effectively to a community sentence would not only be disproportionate to that offenders needs but would also be disproportionate to the omnipresent effort of crime reduction. The three questions asked will be built on significantly in later chapters.

Sentencing Guidelines and Purposes

The law currently offers guidelines as to the appropriate length and type of sentencing for all criminal offences as well as the purposes or aims of sentencing which must be comprehended. S.142 Criminal Justice Act 2003 outlines that there are five purposes of sentencing that "Any court dealing with an offender in respect of his offence must have regard to." [37] These are now listed below. The purpose of outlining these sentencing purposes or aims is to offer up an explanation as to how harsher sentences were justified by the courts which will be expanded upon in later chapters.

(a) The punishment of offenders,

(b) The reduction of crime (including its reduction by deterrence),

(c) The reform and rehabilitation of offenders,

(d) The protection of the public, and

(e) The making of reparation by offenders to persons affected by their offences.

S.125 Coroners and Justice Act 2009 outlines that "every court must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender's case, and must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function, unless the court is satisfied that it would be contrary to the interests of justice to do so." [38] This piece of legislation is significantly important to the study and will, too, be looked at further in later chapters.

The Facts and Figures

In order to ascertain a numerically comparative outline of riot-related sentencing, statistics need to be examined and discussed. To relate this effectively to the investigation several questions need to be asked and answered using these facts. The first of these is what types of crime were punished as a result of the riots? The latest statistics available come from the Ministry of Justice and are accurate up to the 15th June 2012. By then, a total of 3,051 people had appeared before the courts. [39] Of those, 1,968 were found guilty and sentenced. The most prevalent crimes arising from the data are Robbery, Violent Disorder and Burglary. There were no specific offences of 'riot' however there were several cases in which incitement to riot was charged - these will be discussed in a later chapter as they are mainly concerned with the use of social media.

Where did the crimes take place? As mentioned previously the rioting originated in London but by the 10th August it had spread outwards to numerous cities encompassing 10 different police force areas. [40] It was the extent of these riots which differentiated them from other examples of rioting like those seen in Bradford during the summer of 2001. In the appeal case of R v Blackshaw and others (2011) the Court of Appeal noted that "this is not a new-found sentencing policy" [41] and quoted Lord Justice Sachs in R v Caird (1970). [42] 

"When there is wanton and vicious violence of gross degree the court is not concerned with whether it originates from gang rivalry or from political motives. It is the degree of mob violence that matters and the extent to which the public peace is broken... Any participation whatever, irrespective of its precise form, in an unlawful or riotous assembly of this type derives its gravity from becoming one of those who by weight of numbers pursued a common and unlawful purpose. The law of this country has always leant heavily against those who, to attain such a purpose, use the threat that lies in the power of numbers... It is a wholly wrong approach to take the acts of any individual participator in isolation. They [the offences] were not committed in isolation and, as already indicated, it is that very fact that constitutes the gravity of the offence." [43] 

This implies how the widespread extent of the 2011 riots was seen with more vigour and seriousness by the courts than the largely isolated scenes in Bradford. It also helps to chip away at the judicial thought process behind justifying harsher sentences.

Were the sentences for riot related crimes met with longer sentences than had been seen for those same offences in different years? The facts would seem to suggest that this was the case. 42% of offenders sentenced at magistrates' courts for offences related to the public disorder received an immediate custodial sentence. This compares to 12% of offenders who were sentenced to a custodial sentence for similar offences in England and Wales in 2010. The average custodial sentence length for offences related to the public disorder at magistrates' courts was 5.7 months compared to 2.5 months for offenders sentenced for similar offences in England and Wales in 2010. [44] The data also shows the all riot related offences dealt with in the Crown Courts were given longer sentences overall than had been seen for the same offences a year earlier. [45] The average sentence length for the six offence categories listed in the data was 11.3 months in 2010 which is almost half that witnessed in 2011 where the average sentence length for those same offences was 19.4 months. The magistrates' courts data also shows this pattern with the majority of 2010 sentence lengths being lower than those seen in 2011 and the average 2010 sentence length being well over half of the 2011 average. The date undoubtedly shows that riot-related offences were met with much lengthier sentences than non-riot related offences.

Ministry of Justice Sentencing Statistics (2012). London: Ministry of Justice. Table Q5.3. Available at www.justice.gov.uk/downloads/.../Chapter-5-sentencing-sept12.xls. Last accessed 23/02/13

Having already discovered that riot-related offences were dealt with more harshly by the courts the next question to ask is does this buck a trend of increasing/decreasing sentences? From looking at the graph above there is no consistent trend of growing or falling average sentence lengths during the 10 year period. However there is a noticeable incline appearing on the graph between September 2011 and September 2012 which suggests that the riot-related sentences were lengthy enough to impact on the average sentence lengths for that period nonetheless it does not prove that this type of sentencing pattern is the norm. It could be argued that the data implies sentencing length between 2011-2012 was disproportionate in relation to the 'trough' period between 2007-2011. Between 2002 -2003 a similar spike can also be seen however there were no riots recorded during that period. This could be argued to show that sentencing patterns may ebb and flow depending on numerous different factors. This ebbing and flowing may explain the lack of a general trend over the 10 year period suggesting that findings such as that between 2011-2012 cannot accurately imply that sentencing for that period was in fact disproportionate on the whole.

How many of those convicted of riot related offences were under the age of 18? The overwhelming majority of those convicted of riot-related offences were between the ages of 10-17. Ministry of Justice data indicates that 826 out of the 3,051 defendants fell into this category. [46] Those under the age of 18 are subject to different rules when it comes to their sentencing and punishment. The Sentencing Council states that "a custodial sentence will only be given in the most serious of cases." [47] The data informs that 60% of all 10-17 year olds who were dealt with by the courts were issued with an immediate custodial sentence. [48] The data also shows that the average sentence length for an offender dealt with in the Juvenile court was 7.8 months imprisonment. [49] Considering that the average magistrates' sentence length is only 5.7 months this may seem disproportionate. However the average sentence length for the Juvenile court the year previous was still relatively high at 7.3 months. Arguably showing that there was a smaller increase which would be expected considering the riot context but the increase was not overly unfair. This view is challenged by Crown Prosecutor Ann Crighton who says "she has been reduced to tears by the severity of some sentences being handed out to teenage riot offenders by the youth court." [50] She expounded the case of a 17-year-old boy "from a very respectable family, who had never been anywhere near the police before" [51] , who was handed down an 18 month sentence by West London youth court after handing himself over to the police. Crighton prosecuted in the case, but said that she, along with "most people in court" had tears in her eyes when the judge sent him to a young offenders' institution."Was that justice? Because as a prosecutor, I don't think it was. That boy's life has been ruined - and I'm paying for that." [52] This view was echoed by solicitor Rob Brown who said 'courts were failing to take into account the defendant's personal circumstances - such as the impact of custody on their future career, or their likelihood of reoffending.' [53] Julian Young, a west London solicitor who has defended numerous clients on riot charges, blames "mass hysteria" for the judiciary's apparent determination to "imprison as many people as possible for as long as possible." [54] 

"But hundreds of younger offenders were spared custody despite being convicted of serious offences such as burglary, theft and violent disorder, with just 18 young girls sent to a detention centre." [55] The fact that many of these young offenders were spared custody could be indicative that the courts were aware that those who should have known better should deserve to be punished more. Imprisoning those who weren't mature enough to know better would achieve very little than being purely punitive - arguing that although the sentences were long they were proportionate for the type of offender. The law reflects that young people are less mature and it deals with under 18's differently than it does with over 18's. Young age negates maturity which needed to be and arguably was dealt with differently, more fairly and in terms of offender type proportional.

Guideline Deviation

As discussed previously, in England and Wales the sentencing of those convicted of a criminal offence must have regard to the five purposes of sentencing set out in s.142(1) Criminal Justice Act 2003. [56] Having already discovered that the sentencing of those involved in the 2011 riots was undoubtedly harsher than had been seen in previous years it is vital to investigate why this was the case.

It has been suggested that the government encouraged the judiciary to hand down higher sentences to those involved in the 2011 disorder. The Guardian reported during the riots that "Magistrates are being advised by the courts service to disregard normal sentencing guidelines when dealing with those convicted of offences committed in the context of last week's riots." [57] This information was not public knowledge until after the "chair of Camberwell Green magistrates court, claimed that the court had been given a government "directive" that anyone involved in the rioting be given a custodial sentence." [58] This statement was later retracted over the chair's choice to use the word "directive" and an explanation was issued from Her Majesty's Courts and Tribunals Service outlining that advice to consider disregarding normal sentence practice offered by court clerks was their "responsibility under the Criminal Procedure Rules." [59] Nonetheless this does strongly suggest that the government was infact encouraging the deviation away from normal sentencing guidelines so as to procure conviction and although David Cameron was quoted saying, "It's up to the courts to make decisions about sentencing, but they've decided to send a tough message and it's very good that the courts feel able to do that" [60] the evidence suggests that the government did play a role in how sentences panned out. However this government guidance can only be traced to magistrates' courts and with 65% of all cases being dealt with in the Crown Court [61] the judicial response here must be looked at.

It must first be noted that the judiciary of England and Wales have a degree of flexibility when interpreting and administering the law. The extent of this flexibility will now be discussed. "The principal goal of all sentencing guidelines schemes is to promote consistency, and the effectiveness of any sentencing guideline scheme in achieving this objective may be measured by the proportion of sentences falling within the guidelines." [62] With this is mind to what extent does the law allow for deviations from its own parameters? Since the introduction of the Coroners and Justice Act 2009 the law has stipulated that "every court- must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender's case, and must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function, unless the court is satisfied that it would be contrary to the interests of justice to do so (emphasis added)." [63] As well as this, s.125(3) of the same Act states "The duty imposed on a court by subsection (1)(a) [64] to follow any sentencing guidelines which are relevant to the offender's case includes in all cases, a duty to impose on a person (P), in accordance with the offence-specific guidelines, a sentence which is within the offence range, and where the offence-specific guidelines describe categories of case in accordance with section 121(2)-(5) [65] , a duty to decide which of the categories most resembles P's case in order to identify the sentencing starting point in the offence range; but nothing in this section imposes on the court a separate duty, in a case within paragraph (b) [66] , to impose a sentence which is within the category range (emphasis added)." [67] 

The legal provisions outlined above show that the role of the court, when sentencing, is to stay within the guidelines provided for by the law unless to do so would hinder the application of justice. However, the act somewhat contradicts itself with this. There are no explanatory notes within the statute explaining when a situation may lead itself to being "contrary to the interests of justice" and it is therefore of an individual judicial opinion to decide when this is relevant. Case law outlines this judicial creativeness. In R v Carter and Others (2011) the trial judge was quoted saying, "The guidelines of the Sentencing Council must be followed unless the judge gives reasons for not doing so. In the case of the guidelines of its predecessor, I am required to have regard to them, but may depart from them." [68] The resulting sentences from that case thusly reflect this acknowledgement of a reasoned departing as all of the sentences handed down were over the recommended guidelines but were done so with often lengthy explanations. The decisions to deviate away from the sentencing guidelines for each of the defendants in R v Carter and Others was criticised by the Court of Appeal with Lord Leveson descending, "What concerns me is that the (trial) judge ... started to give sentence ranges ... for offences with which he was not concerned. That's not even something this court does" [69] This was backed up by Lord Judge, warning "if other crown courts had circulated alternative tariffs for various crimes it would have been a "recipe for chaos" in the judicial system." [70] Despite this there was a degree of assimilation in both court's reasoning as to why harsher sentences were necessary in these circumstances. The case of R v Blackshaw and Others (2011) illustrates this. The appellant, a defendant in R v Carter and Others, Michael Gillespie-Doyle appealed against his original sentence contesting it to be "manifestly excessive" however the Court of Appeal respected the trial judge's decision but made it clear that the appeal was only dismissed as the original decision was within that which is allowed by the law. The Appeal Court however made it clear that excessive deviation from the sentencing guidelines would not be tolerated by the law even if a reasoned decision was given (as per s.174 Criminal Justice Act 2003) and proved this by halving two of the sentences handed out by the Judge in R v Carter and others (2010) stating that they were indeed 'manifestly excessive.' This ultimately indicates how with proper use of justification from the courts, the excessive sentencing may well have been disproportionate in terms of sentencing guidelines but was well within the law and arguably fair based on this point. Not everybody will agree that the law is fair but as a democracy, society condones and elects the law makers and by virtue of this point thusly condones the law.

Roberts (2011) investigated the link between sentencing guidelines and judicial discretion. One major observation he made was that the majority of factors used to determine sentence length were aggravating and a much lower proportion were mitigating. In a study by the Sentencing Commission Working Group (2008) [71] five different offences were investigated at Crown Court level to see when sentences fell within their prospective guideline ranges, above them or below them. An average percentage for each of these categories was then attained. As can be seen by the table below around half of the sentences handed down fell within the offence category (guideline) range. More than a third of offences were sentenced outside the category range and less than a fifth of offences were sentenced below the guideline range. Robert suggests "A possible explanation for the high number of over-guideline sentences "takes us back to the essential architecture of English guidelines. As noted under these guidelines, prior convictions may take the sentence outside the range permitted. In light of the clear statutory direction regarding the use of prior convictions at sentencing, upward departures will be more likely than departures below the bracket range." [72] This could therefore suggest that above-guideline deviation is a regular practice but was largely magnified and expanded on by the courts in 2011 which used the context of the riots as a serious aggravating factor.

"The Daily Mirror called last week's spate of riots mindless; the Croydon Green party called them mindless vandalism; David Cameron described them as mindless selfishness and the leader of Liverpool council talked of mindless thugs." [73] The relevance to the term 'mindless' is extremely important in relation to the sentencing and subsequent guideline deviations witnessed during the riots. If it can be argued that the riots were based on mindless criminality alone then one would be able to undoubtedly condone that sentencing was not unfair and disproportionate to what would or rather should be expected from such activity. Reicher & Stott [74] "insist that there was a single, homogenous 'consensus' that the riots of 2011 were simply rampant criminality originating from the 'broken society.'" [75] However, later on in their analysis they state, "If Duggan's killing was seen as the police attacking the community with impunity, then one possibility is that Carpet Right (in Tottenham) was attacked in order to show that the rioters could do whatever they liked and the police could not stop them. This was their assertion of power over the police." [76] This confusion as to whether the riots were mindless or were based on just cause seems to be a repeating pattern. In August 2011, Theresa May gave a speech in the House of Commons pertaining to the violent disorder:

"We must never forget that the only cause of a crime is a criminal. Everybody, no matter what their background or circumstances, has the freedom to choose between right and wrong. Those who make the wrong decision, who engage in criminality, must be identified, arrested and punished. But nobody doubts that the violence we have seen over the last five days is the symptom of something very deeply wrong with our society.  Almost two million children are brought up in households in which nobody works. One in three children leaves primary school unable to read, write and add up properly. We have the highest level of drug abuse in Europe.  There are almost a hundred knife crimes committed every day and nearly a million violent crimes every year.  Half of all prisoners reoffend within a year of their release from prison.  These are serious social problems and we can't go on ignoring them. Nobody is pretending that there are easy answers to such deep-rooted problems, but they are the reasons why the reform of welfare, schools and the criminal justice system cannot wait." [77] 

Again one can see confusion. At first glance it would appear that May is explicitly outlining that the riots were simple, wilful criminality. However she goes into much detail to explain that there are more serious, deep routed problems which have led to these riots happening thus insinuating that there was a cause rather than simple, mindless action.

The docu-film, "Riot from Wrong" [78] arguably adopted somewhat of a biased approach in favouring those involved in the riots over the police and the government and trying to offer up social legitimisation as to why rioting erupted. However amongst all of this came two important quotes. The first of these is "Copycat, mindless rioting significantly contributed to the riots" [79] and the second is "We had their [society's] attention and all we wanted were new trainers and TVs." [80] 

The copycat rioter notion was coined by many newspapers as an explanation for those riots which mainly occurred outside of London. From looking back to the deviance theories discussed earlier Functionalism can be used to argue the point that the rioting seen outside of London was mainly without cause and it was most likely a result of deviance which emanated from low economic status, transcending values and a reduction in community amenities. 62% of all recorded rioters were claiming some form of benefit of which 43% were linked to unemployment or reduced employment. [81] Many of those involved in the 1981 riots will have imposed their experiences and beliefs upon their children and they too to their children. This creates learned values which are often only founded in someone else's experiences. Applying this to 2011, it could be argued that these learned values and the often associated distaste for the police were notable factors behind this 'copycat' rioting. A declining economic climate and the closing of many community amenities is an important factor to note. Merton's Retreatist response explains how deviance in these areas is a result of someone's abandonment of both the success goals of the future and the institutionalised ways of achieving them which arguably applies to those who are both unemployed and who rely on community amenities to better themselves.

The second quote taken from the docu-film can, again, be discussed using the Functionalist theory. Durkheim believed that deviance was a vital tool used to challenge people's views. He talks about how those involved want to be heard but also want to challenge the ideas of what society think to be normal and acceptable. The rioting as a whole could be argued to have been sparked by a single event (the shooting or Mark Duggan) but the widespread rioting witnessed could better be described as possibly being an outcry by society to the current government's spending cuts on those benefits and social services relied upon by many. Gross states, "By cutting support for social services, the recent austerity measures of Cameron's government have worsened the situation for many of these people." [82] Mayor of Liverpool, Joe Anderson was quoted saying, "I believe community cohesion is being seriously threatened by the lack of funding to our city and others. I believe that the so-called 'summer-of-discontent' will happen again if we do not address this issue." [83] However the major counter argument remains that although the eyes of the media and the world were focused on these rioting areas, the majority of those involved chose to engage in dishonest and destructive crimes such as burglary, theft and criminal damage which further damaged the communities in which they lived. Little was done to highlight and alter the situations which those involved said needed changing such as the vast spending cuts and austerity measures.

The opinion as to whether rioting was mindless is not 100% certain. It can be argued that just cause for the so called copycat riots can be implied through the effect of the economic downturn and its subsequent results. The first of the riots seen in Tottenham may have cause in terms of the Mark Duggan shooting and the slow, unprofessional response of the police. If the general consensus is that nobody is sure whether the riots were generally with cause or were in fact mindless criminality how can one say that the sentencing was fair and proportionate in terms of length and previous years' sentencing pattern as well as proportionate in relation to the sentencing aims? If it was mindless, more punitive sentences could be justified but if there was cause would different rationale using one of the other sentencing purposes have given lower sentences and would that have been proportionate in terms of previous years' sentencing pattern as well as fair as to the purpose of sentencing? Community penalties may have been more appropriate rather than prison sentences favouring a reparation approach which would preserve the acknowledgement that there was just cause in some instances but would also ensure that those people repaid the community for their violence - maintaining that punishment for crime is necessary and ensuring the rebuilding of the community by those who destroyed it. Prison does not offer that option.

Was the reason behind this guideline deviation based on policy reasons? In 2010 the government released a paper outlining potential reforms for sentencing practice. [84] It stated, "Sentences have become increasingly severe in recent years, and yet the public does not recognise this and many still think they are too lenient." [85] Having been created and published a year prior to the riots it could be inferred that the social disorder created the perfect conditions in which to test these new reforms and try to alter this stagnant public perception of consistently weak sentencing. Undoubtedly the sentencing of those convicted was higher than had been seen for the same offences in 2010. Sentencing a large, highly publicised event such as the riots more harshly would have helped to alter the waning public perception on sentencing. However there is the argument that prison is not always effective and simply demonstrating that sentencing is not lenient by giving out harsher, longer punishments may be described as killing the weed at the surface but leaving the root intact. The Justice Secretary, Chris Grayling stated "Reoffending rates have barely changed in a decade, and are now rising. These (re-offending) figures underline why transforming the way we rehabilitate offenders is now a big priority for us." [86] This point illustrates how the government feels prison is not working to control re-offending rates and that an alternative form of punishment must be considered. Punishing those who are repeat offenders or who are likely to re-offend arguably does not work at preventing future crime. These are the typology of people identified by Lemert's Labelling Theory. These types of offenders commit crime due to their 'master status' of deviant. They become what society and the state has labelled them. Punishing these types of people using prison only reaffirms this notion and the cycle continues to rotate. Prison has just been outlined as not being the most effective punishment for altering behaviour and likelihood to re-offend. Using this, one must appreciate that effective punishment with a positive future outlook using different methods of sentencing must not be overlooked. Undeniably society wants those who break the law to be punished but to condone further punishment which does not work to prevent re-offending is both unfair on the individual and on the public purse. Alternative methods of sentencing practice such a reparation should not be overlooked just because there is little punitive element. Roberts and Hough's research indicated that the public outlined community sentences to be adequate when dealing with non-violent riot-related offences. [87] 

A brief conclusion for this chapter outlines that deviation from the legal guidelines set in place for each offence did happen during the 2011 riots. This, however, was found to be within the parameters of the law. From looking at research on judicial discretion and upward sentencing deviation from suggested guidelines seems to be more prevalent across all sentencing. This could suggest that although the sentencing seen during the riots was largely above the guidelines this was not abnormal practice and it ties in with a regular pattern meaning proportionality was maintained. If it could be accurately proven that the majority of those involved in the riots were involved in 'mindless criminality' rather than criminality with 'just cause' then sentencing too could be agreed to be proportionate as well as fair. If the criminality was found to be with 'just cause' then a different approach may have made sentencing more proportional as it would maintain acknowledgement of the cause but would also ensure punishment within or below the suggested guidelines and thusly maintaining respect for the law. If sentencing was found to be based on policy reasons to increase public confidence and had less regard for the best interests of reducing re-offending or preventing crime then it can be said this would be disproportionate to what the law purposes and would also be seen to be unfair to both offender and society as sentencing without adequate forward thinking can lead to further crime affecting both the public purse but also public confidence and safety.

Public Opinion, Influence and Sentencing

There is a large amount of evidence suggesting public opinion plays an influential role in the sentencing process. Hough and Roberts suggest "the need to sustain public confidence in the administration of justice means that public opinion plays an important, albeit indirect, role in sentencing policy and practice." [88] This was furthered in 1997 by Lord Bingham observed that he did not "consider it would be right, even if it were possible, for judges to ignore the opinion of the public'. He continued by noting that `the increase in the prison population is not explained by any recent increase in sentencing powers, and I have no doubt that it is related to the pressure of public opinion." [89] Policy makers too agree that the public play a role in influencing sentencing policy with Margaret Thatcher speaking of "the very real anxiety of ordinary people that too many sentences do not fit the crime." [90] This is not a modern adaptation, as proved by Hough and Roberts, they state that "the need to sustain public confidence in the administration of justice means that public opinion plays an important, albeit indirect, role in sentencing policy and practice." [91] This was confirmed by the then Attorney-General in 1961, "In deciding to what extent effect should be given to the manifestations of public opinion, I think one must try to ascertain to what extent that public opinion is well informed . . ." [92] The authors further quote Radzinowicz who noted that the Parliament of the day was "not indifferent to the pressure of public opinion." [93] Having a judicial and academic confirmation that public influence is instrumental in both sentencing process and policy is important. It paves the way to investigate what the public's opinion was to the sentencing witnessed during the riots and whether it was fair and proportionate in relation to their opinions and ideals.

The Guardian newspaper undertook some research [94] into what both its own readers as well as those involved in the riots felt were the main causes for the riots. The majority of Guardian readers felt that both poor parenting and criminality were the most prominent causes. [95] Having already shown how public opinion is influential in sentencing policy and practice it could be argued that the courts were taking into consideration society's overwhelming belief that the riots were caused by pure criminality and that this should, and was, met with punishments to match this belief. 81% of all respondents believed that riots will happen again with opinion being fairly split as to when this may be. [96] The majority felt that rioting would not occur again for four years or longer [97] - but the fact that there was this extenuating public belief that rioting was going to occur again may have influenced sentencing practice instructing the judiciary to accommodate more deterrence-led sentences so as to try and mitigate the threat of future violence from not only those involved in 2011 but also those would be rioters of the future. The fact that the majority of rioters said that they would not become involved in future rioting could be argued to imply that they fear similar sanctions as had been seen in 2011 however the fact the 35% said that they would become involved in rioting again suggests the either sentences handed down in 2011 were not harsh enough to deter people from resorting to public disorder again or that sentencing harshly does not act as an adequate deterrence and the causes behind the rioting need investigation and possible remedy to avoid the same situation from escalating again. The approach of using sentencing as a personal deterrence to those involved is no longer effective and other means of approaching the problem need to be investigated. Continued deterrence sentences such as this may lead to little improvement and could arguably become less effective for both prevention as well as offender reformation.

Hough and Roberts (2013) undertook a lengthy piece of research investigating public opinion to riot-related sentencing. In the research many questions were asked to respondents comparing both general sentencing practice and sentencing practice witnessed during the 2011 riots. The findings made for i

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