The long sentences passed on the offenders in the August riot have re-opened the question of whether it can ever be right to pass ‘deterrent’ sentences – sentences that are substantially longer than usual which are intended to send a message to others not to commit the same offences. The classic case was the execution of Admiral Byng in 1757 for ‘failing to do his utmost’ against the French, which led Voltaire to remark that in England they shoot admirals from time to time ‘pour encourager les autres’.
Deterrence, as an element of crime reduction, is enshrined in statute as one of the five principles to which sentencing Judges must ‘have regard’ (Criminal Justice Act 2003, section 142). The Lord Chief Justice Lord Judge relied on it in his long and fascinating judgment in the riot appeals (R v Blackshaw & Others) as one of the reasons for upholding most of the sentences. He also said:
‘It is not, of course, possible now, after the events, for the courts to protect the neighbourhoods which were ravaged in the riots or the people who were injured or suffered damage. Nevertheless, the imposition of severe sentences, intended to provide both punishment and deterrence, must follow.’
While he drew distinctions between the degrees of involvement in the disorder, the need to pass severe deterrent sentences is a theme that runs through the judgment. He was not impressed by defence arguments in the cases of the Warrington and Northwich Facebook non-riots: because no one actually turned up in answer to the call to riot (except the police) the offence did not call for a four-year sentence. It was the potential to cause disorder and the foreseeability of serious harm that counted. The Lord Chief said:
‘The [sentencing] judge was fully justified in concluding that deterrent sentences were appropriate. These offenders were caught red-handed. For the citizens of Northwich and Warrington that was just as well, because as we have explained, and the guilty pleas acknowledged, neither offender was joking when the Facebook entry was set up.’
It would be hard to disagree with his view that relatively minor offences like shoplifting or receiving stolen goods became far more serious than usual when committed in the midst of widespread public disorder, and deserved greater punishment because each in its small way contributed to the spread of lawlessness and public fear. But there are conceptual questions about deterrent sentences that are seldom asked, and were not in the riot appeals: how can you tell if a deterrent sentence works? And if you can’t tell, is it right to pass one?
No one knows if English admirals did their utmost after Byng because they thought they would be shot if they didn’t. No one knows today whether Blackshaw’s four years have stopped other Facebookers from inciting their friends to riot. What a judge is really saying to an offender when passing a deterrent sentence is: ‘Your offence is worth two years but there’s too much offending like this and people are frightened of it; I have duty to do what I can to reduce crime; therefore you’re getting four years to send out a message to others.’
The deterrent sentence is intended as a billboard to advertise what will happen to others. Is it right to give people longer sentences that their offences really merit (if one concedes that offenders are people) as a means to an end, rather than just punishing them for what they have done? The argument is a philosophical one. A Kantian would say: ‘No, it is never right to treat people in that way, they must never be considered as instruments to achieve an end but as ends in themselves. But few criminal lawyers are Kantians.’
To the utilitarian, the deterrent sentence is justified if it increases the sum of human of happiness (or at least reduces misery), even if that means using the offender instrumentally and giving him more than he deserves. But the utilitarian has the onus of proving that it works: ‘There’s no point in doing something that does not clearly produce the result you know.’ This is exactly the problem with deterrent sentences: what evidence do we have to show that they work? Go back to Byng’s day: you could be hanged for many offences like theft, which were prevalent. Did hanging deter? NO, because people kept on stealing; or yes, there would have been more stealing without it. How does anyone know? My view is that in a matter as important as taking away liberty, the case for deterrence can only be made if there is clear evidence that potential offenders take notice of the billboard carried by people like Blackshaw, and desist from offending. Without that evidence, deterrence is just hit and hope.
Francis FitzGibbon QC
Francis FitzGibbon QC is a criminal barrister at Doughty Street Chambers, London (www.doughtystreet.co.uk). He undertakes all kinds of criminal work and has contributed to 'A Practitioner's Guide to the Law and Regulation of Financial Crime' (Sweet & Maxwell 2011). He sits as a part-time Immigration Judge. The views expressed here (and in his blog Nothing Like The Sun: http\\:ffgqc.wordpress.com) are personal.