Spuriouser and Spuriouser!

Peering back through the mists of time, another case of spurious retraction - of a statement which inadvertently reveals - just another bog-standard political conspiracy.

The Daily Mail ('Tear up the sentencing guidelines and jail EVERY looter': Crackdown on looters revealed) reports an incautious statement in court by a JP, Novello Noades:

Our directive for anyone involved in the rioting is a custodial sentence. That is the directive we have had - it is a very serious matter.

And indeed, as the Guardian discovered, emails were circulated to justices' clerks, telling them

...you should advise magistrates to commit to the crown court cases of commercial burglary, or handling … or violent disorder arising from the recent disturbances. There is a general acceptance that what occurred earlier this week is not covered by the sentencing guidelines and it will be very much the exception that such cases are sentenced in the magistrates courts...

These emails were sent by a 'senior justices clerk' in the London regional office of Her Majesty's Courts and Tribunals Service, that is to say, in effect, an official working for the Ministry of Justice, which was the body forced to release the emails in response to an FoI request. The reader is invited to consider how likely it is that this official produced these instructions on their own initiative and formulated them without guidance from higher up the political chain.

Luckily, as Noakes casually made her incriminating revelation, Justices clerk Claire Luxford, one of those who had received these instructions and been given the task of communicating the pretty unambiguous message from her government masters, was on hand to explain: 

It's general guidance - not a directive as such - that the sentencing guidelines in cases such as these are not applied.

There is of course no such thing as a government 'directive' to the judiciary, in any formal sense. A non-technical use of the word 'directive' appears pretty apt, though. The government appears to have intervened in the judicial process in order to attack a specific group of people. This tactic, however delicately performed and however mellifluous and bland the wording used, is a basic violation of the rule of law.

The government went into damage-limitation mode of course, since they don't really want to be revealed as using nakedly dictatorial tactics in their panicked urgency to stamp out any further revolt. An HMCS spokesman is quoted by the Guardian giving the official line:

Sentencing is a matter for the independent judiciary. Justices' clerks and legal advisers in magistrates' courts have a responsibility to give advice to magistrates on sentencing guidelines. Accordingly magistrates in London are being advised by their legal advisers to consider whether their powers of punishment are sufficient in dealing with some cases arising from the recent disorder. Magistrates are independent and not subject to direction from their legal advisers.

This bland description is at odds with the content of the released emails, and furthermore masks the fact that on questions of law and on constitutional matters JPs are entirely dependent on their clerks and legal advisors. As Noakes's unguarded statement reveals, what magistrates are told by those advisors is treated as authoritative. In this case, Noades, lacking legal training, was apparently unaware of the scandal she was revealing.

She was evidently disabused of the assumption that all this was above board and perfectly OK to chat about in open court, and so came the spurious retraction: a 'spokesperson' was drafted in to announce that

Ms Novello Noades, the Bench Chair, is mortified she used the term ''directive'', she knew there wasn't one and accepts it is entirely her mistake in language.

So that clears that up, then.

Meanwhile the the independent judiciary sent out the tough message that pleased David Cameron so much. 'Mad Dog' Gilbard, a QC who seems to have been granted the status of 'honorary recorder of Manchester', was happy to get stuck in.

The Court of Appeal quietly reversed some of the most rabid excesses and could hardly fail to mutter something uncomplimentary about Mad Dog:

20. It was, as we have indicated, entirely appropriate for Judge Gilbart to make clear that any offence committed in the context of a riot was different in kind from a similar offence committed in isolated circumstances, and for that reason to indicate his intention to depart from the sentencing guidelines provided for specific offences in what he described as the "usual context of criminality". It is however inappropriate for Crown Court judges to issue, or appear to be issuing, sentencing guidelines. Up and down the country judges will pass the sentences they think appropriate in the context of the public disorder taking place in their own cities, and nationally, and in the light of well understood principles, and in the event of any appeals against these sentences, by reference to the decisions of this court. That is the correct process. Until there are appeals against sentence, this court cannot and should not have any input into the sentencing decisions in the Crown Courts, save in the broad sense that the principles to be applied have in fact already been established

and, heavily muffled, about the goings-on in the Courts Service (emphasis in both quotes very much mine):

21. Much the same applies to magistrates courts. Legal advisers to magistrates are indeed legal advisers. It was clearly appropriate for them to advise magistrates that the magistrates' courts sentencing guidelines were not drafted with offences committed in the context of riot and public disorder in mind and that it was open to courts, if they thought appropriate in the individual cases, to impose sentences outside the range suggested by those guidelines. If any individual sentence was excessive, it would, of course, be subject to appeal to the Crown Court in the usual way.

but everyone knew what was required, and Lord Judge, sporting his very safest pair of hands, proceeded to pre-empt parody as he upheld four-year sentences for a couple of harmless facebook pranksters:

"It is very simple. Those who deliberately participate in disturbances of this magnitude, causing injury and damage and fear to even the most stout-hearted of citizens … must be punished accordingly and the sentences should be designed to deter others."

As an otherwise authoritarian article from Joshua Rozenberg delicately hints, the precedent set by these sentences is likely to have a chilling effect on protest and civil disobedience:

For the last few days, we have seen peaceful protests outside St Paul's Cathedral. No doubt those involved in the protest have never had any intention of rioting. But anyone who might be thinking of sparking a riot in the City of London will now know that prison awaits for what would otherwise be the most trivial of offences.

P.S. The Met's directive to seek remand on custody in all cases was described as a policy of "unlawful arbitrary detention" by lawyers, and Tory MP James Clappison found it rather disturbing, too. Not as disturbing of course as the plight of those needlessly banged up for long periods - quite possibly long enough to lose a job, a house, or custody of children - before in some cases, of course, being acquitted. (And in such cases compensation is highly unlikely to be forthcoming.)