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Date: 15/07/11

"We Don't Need Incarceration..."

A rather tasteless title, I know. But this morning, Charlie Gilmour was sentenced to sixteen months imprisonment for his actions in last December's students' protests.

Compared to other sentences (that of Edward Woollard and - more recently - of Francis Fernie), Gilmour might consider himself rather fortunate, especially as his antics were fuelled by being ripped to the tits the whole time.

Lee Griffin wrote this at Liberal Conspiracy, to which I replied in the comments, but I'll repost my response here:

"There are a number of elements to this.

"(Disclaimer: despite my posting name, I have no involvement in the judicial system)

"Firstly the defendant himself and his actions. Gilmour was quite clearly ripped to the tits all day, which makes one wonder why no-one - neither his fellow protestors nor the police - seems to have done anything to stop him, or at least calm him down.

"Much was made by his counsel of the consequences of a trauma in his personal lfe. That this took place some months before his offences, and that one would have hoped that his family and/or his friends would have noticed that something was seriously amiss with him in the interim and have done something to address it, doesn't seem to be much of a mitigation. Nonetheless, I would be concerned about what treatment - if any - he will be likely to get for his psychiatric problems in a prison and the consequences of non-treatment subsequent to his release.

"(I hope a previous commenter is wrong about Gilmour's educational prospects, by the way: as he is likely to be released any time between early November (tagged) and mid March, I would hope that Girton would practise the enlightened humanity one would wish to see from an august college and allow him to complete his degree course. I can't see any purpose in denying him that possibility except raw vengeance).

"His attempt to claim that he didn't understand the significance of his trapeze act on the Cenotaph was also never likely to be remotely credible, as the trial judge correctly pointed out. If anything, it undermined whatever other causes in mitigation were adduced on his behalf. Unfortunately for Gilmour, this gave the excuse for the judge seemingly to spend a disproportionate amount of his speech on that point, when Gilmour's actions at the Cenotaph were not included in the charge in any case and when Gilmour had apologised for them the day after.

"We must then look at the sentence in the context of those for others involved in the disorder around the recent protests. Bearing in mind Gilmour's persistent misbehaviour on that day and comparing it with the sentences on Edward Woollard (one - albeit potentially highly dangerous - act committed in a moment of hotheaded stupidity: 32 months) and on Francis Fernie (throwing two thin sticks at the police: 12 months), then Gilmour might be said - in this context if in none other - to have received a proportionate sentence.

"(We don't appear to have the information, but I think it reasonable to assume that the judge started his calculation at two years - pretty low when you consider that the judge at Woollard's trial started his at double that - then reduced it by one third for Gilmour's guilty plea).

"But there is a wider context still. Although the offence of 'Violent Disorder' has been on the statute books for a quarter of a century (it was introduced in the 1986 POA), I don't remember it ever being used in connection with demonstrations with quite the alacrity we have seen in recent months.

"One clue may be in the rather broad definition:

"1) Where 3 or more persons who are present together use or threaten unlawful violence and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for their personal safety, each of the persons using or threatening unlawful violence is guilty of violent disorder.

"2) It is immaterial whether or not the 3 or more use or threaten unlawful violence simultaneously.

"3) No person of reasonable firmness need actually be, or be likely to be, present at the scene.

"4) Violent disorder may be committed in private as well as in public places."

"Potentially, at least, this means that anyone could be done under it for anything, anywhere at any time if the test of "using or threatening unlawful violence" could be passed. Rather like, say, the conspiracy laws, very little has to be proven beyond reasonable doubt to escalate the charge to this level.

"The other attraction - and, I strongly suspect, the reason why it has become the charge du jour for the CPS in such cases - is because it attracts a far heavier sentence than just about any other public order offence except riot (which the police don't like using because it brings other statutory liabilities upon them).

"The use of this charge therefore enables disproportionate sentences to be imposed, and in this sense the sentences are political (using the word in its broader sense). This means that actions which - were they to be carried out on, say, a drunken Friday night in most towns or cities - would attract a sentence of no more than six months, and in most cases a non-custodial disposal, can instead be punished by lengthy spells of imprisonment, even if (as in all the cases I've referred to) no actual physical harm was caused to any other person.

"They also enable certain members of the judiciary to waffle on about the preciousness of the right to protest (which - in other contexts - they haven't shown the same concern with defending, but that's just my BS detector in operation), and - in the light of that - to pass sentences supposedly designed to be 'deterrent' or 'to send a message'. As a former Lord Justice once clearly stated, "Exemplary sentences are unjust", because they punish the defendant for things which were not connected to his own actions.

"There is a still wider context, though, which involves our system's (and our society's) inordinate fondness for thinking that custodial sentences are the go-to option simply because the law gives them as a possibility for an increasing number of offences, and about how such sentences may be thoroughly counter-productive for both the individual and for society in general, but that is perhaps an argument for another time."