Huffington Post, 27 October 2014
Judges and magistrates are often assumed to be beyond prejudice, immune to the behavioural and cognitive biases that would sway the rest of us. Of course they are not. But just how vulnerable they are was made plain this week with the publication of a study in the British Journal of Criminology on the excessive judicial sentencing that followed the 2011 English riots. Its general conclusion: the courts were almost as impulsive and ill-disciplined in their judgements as the behaviour they were supposed to be assessing. “An air of prosecutorial zeal and judicial abandon was commonplace,” say the authors.
It is tempting to see this as an example of human fallibility amid the madness of crowds, but it is nothing of the sort. Instead it is a story of political influence, of public officials and commentators drumming up a populist narrative of fear and recrimination that not even the judiciary could resist. The implications, for those involved in the trials and for society at large, are worrying.
It became clear pretty quickly in the months after the riots that something unusual was happening in the courts. Rioters were being punished not only for their personal transgressions, but also for committing them as part of a nation-wide collective, a factor that in the view of one Manchester crown court judge took them “completely outside the usual context of criminality”. The aim seemed to be deterrence rather than justice. As a result, average sentences for those convicted in the twelve months from August 2011 were more than four and a half times longer than for those convicted of similar crimes in 2010 – 17.1 months compared with 3.7 months.
Many of the judges and magistrates involved in the proceedings made it clear that punishment should take into account the public sense of outrage at the violence. Justice Saunders remarked that since the judgements passed by the courts in the immediate aftermath (and later approved by the Court of Appeal) were severe, courts in subsequent cases should apply comparable sentences “even though the initial wave of public condemnation for their behaviour may have passed”.
Such questionable logic should be viewed in the context of the political atmosphere of the time. Before the dust had cleared from the streets of London, Birmingham, Liverpool, Manchester and elsewhere, politicians of all hues (but particularly conservatives) were stirring the public mood to their own ends, invoking questionable explanations of “mob behaviour” more appropriate to the French Revolution. They blamed “the criminal classes” (Kenneth Clarke), “career criminals” (Theresa May) and “mindless, mindless people” (David Lammy), but they were far off the mark. Although 75% of those arrested had previous cautions or convictions, by the police’s own admission this figure was not representative of those who took part. The other misconception – that gang members played a pivotal role – was disproved by the Home Office’s own figures.
Pointing the finger at known criminals and gangs, or a “feral underclass” as Clarke put it – effectively pathologizing the entire episode as authorities down the ages have done – was a convenient way of disowning the problem. But it was a dangerous conceit, for it made it difficult to explore any underlying social dynamics that contributed to the disorder. Behind the vandalism, arson, thuggery and opportunistic looting that wrecked businesses and caused an estimated £200 million in property damage over those four days, there was legitimate long-term disaffection with which entire communities identified.
As this week’s study in the British Journal of Criminology attests, judges and magistrates bought into the dominant political narrative of the riots. A local reporter who watched many of the hearings in Manchester told the study’s authors that they were “akin to show trials, with the district judge addressing the press gallery as much as the defendants”.
It is standard judicial practice to apply more severe sentences to those engaged in public disorder, partly as a deterrent against anarchy, partly in recognition of the fact that criminal behaviour is always more alarming and potentially more disruptive when conducted collectively. But in this case, it seems the judiciary went too far. It is surely questionable to factor into sentencing a febrile public mood, particularly when it is stoked by politicians and commentators peddling emotive and unscientific ideas about human behaviour.