With reference to the disorder sweeping across the country, John Oliver writes about the court’s approach to protests and disorder and where the line between the two sits. John also summarises the court’s approach to sentencing offences committed in the context of widespread disorder. With reference to appeal cases, John explains that public protection, punishment and deterrence will be at the forefront of the sentencing judge's mind in these cases.
On 8 August 2024, The Honorary Recorder of Liverpool, HHJ Menary KC, sentenced two men to terms of immediate imprisonment for their involvement in the violence that erupted in Southport and Liverpool following the shocking and brutal attacks (some fatal) on adults and children taking part in a holiday dance class in Southport on 29 July 2024. Since 30 July 2024, a number of separate incidents of violence have taken place in towns and cities across the country. At the time of writing, some 483 individuals have been arrested and 149 charges have been brought before the courts.
As part of his sentencing remarks, HHJ Menary KC reiterated the principles the Courts apply when sentencing people for offences connected to widespread disorder. The principles are not new but, since it is some time since we have heard about them, it is worth revisiting them.
On Friday 13 February 1970, several hundred protesters – most of whom were students at Cambridge University – gathered outside the Garden House Hotel in Cambridge to protest against the Greek junta. What began as a peaceful picket turned to the loud disruption of speeches and, eventually, the breaking out of prolonged violence which caused significant damage to the hotel, serious injury to a police officer and a university proctor and injury to others. Only the intervention of 80 police officers with dogs brought the violence to an end. A number of protesters were charged with offences associated with the violence and, after trial, they were given sentences of immediate imprisonment or Borstal training.
The case made its way to the Court of Appeal – R v Caird (1970) 54 Cr.App.R. 499 – where most of the sentences were affirmed. The Court said that even if a gathering or crowd has peaceful intentions, the moment their acts cause reasonable citizens to fear a breach of the peace, the assembly becomes unlawful. As to who might be at risk of prosecution for involvement in such behaviour, the Court said:
"any person who actively encourages or promotes an unlawful assembly or riot, whether by words, by signs or by actions, or who participates in it, is guilty of an offence which derives its great gravity from the simple fact that the persons concerned were acting in numbers and using those numbers to achieve their purpose."
The Court said that it would be no excuse that the original purpose of the gathering was political:
"Any suggestion that a section of the community strongly holding one set of views is justified in banding together to disrupt the lawful activities of a section that does not hold the same views so strongly or which holds different views cannot be tolerated and must unhesitatingly be rejected by the courts. 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."
Nor, the Court held, is it any mitigation to say that the behaviour of the person being sentenced was less serious than others involved in the same disorder:
"[…] each individual who takes an active part by deed or encouragement is guilty of a really grave offence by being one of the number engaged in a crime against the peace. […] In the view of this Court, it is a wholly wrong approach to take the acts of any individual participator in isolation. They were not committed in isolation and, as already indicated, it is that very fact that constitutes the gravity of the offence."
In 2011, the killing of Mark Duggan on 4 August triggered widespread violence, which started in Tottenham Hale, spread through Greater London and then to other towns and cities across England. Almost 2,000 people were charged with offences connected with serious violence, significant damage to property, looting and public disorder.
By 2011, the sentencing courts were making use of sentencing guidelines and many of those convicted received terms of imprisonment or detention which went beyond the category range for the offence(s) for which they were being sentenced. Some took their cases to the Court of Appeal and the case of R v Blackshaw [2011] EWCA Crim 2312 provided guidance. The Court restated the general principles that apply to the sentencing of offences connected with widespread disorder. It reiterated the overwhelming obligation to protect the public, to punish those involved in serious disorder and to deter others from becoming involved in similar behaviour. It stressed that those who ‘deliberately participate in disturbances of this magnitude, causing injury and damage and fear to even the most stout-hearted of citizens, and who individually commit further crimes during the course of the riots are committing aggravated crimes.’
The principle that sentencing guidelines are not ‘tramlines’ was also reiterated and the Court rehearsed the legislation and legal principles that permit departure from sentencing guidelines when the circumstances of an offence justify it. The Court said that magistrates should be reminded that ‘magistrates' courts sentencing guidelines were not drafted with offences committed in the context of riot and public disorder in mind’ and so, if appropriate, sentences outside the category range could be imposed.
The Court found no mitigation in the fact that some offences followed on from earlier criminal activity by others – for example, stealing from shops which had been criminally damaged by others who had since left the area. Also, in the context of this sort of offending, good character will carry limited weight and will almost certainly not, in and of itself, be a reason to suspend a sentence of imprisonment which falls below the two-year threshold.
So, it should come as no surprise that those sentenced for offences arising out of the disorder taking place across the country since 30 July 2024 are receiving terms of immediate imprisonment. The courts have long treated incidents which take place in isolation and those which take place as part of widespread disorder differently.
The courts draw a clear distinction between lawful, peaceful protest - even if the views held by those involved are shared by few and considered repulsive by the majority - and gatherings which descend into unjustifiable violence which causes fear, disruption, damage to property and injury to people. The Courts will strenuously uphold the rights of those in the first category and vigorously punish those in the second.
John Oliver is a barrister at 5 St Andrew's Hill, specializing in criminal and extradition law. He has extensive experience in cases involving serious violence, sexual offenses, and complex multi-handed cases. John is skilled in handling cases with vulnerable defendants and witnesses, particularly those with mental health illnesses and neurodiversity. He is recognized for his meticulous attention to detail and strong advocacy skills, securing numerous acquittals in high-profile cases. John is also a Level 3 CPS prosecutor and accepts direct public access instructions.
