Why have the rioters not been charged with rioting?

A judge sitting at Hull Crown Court, HH Judge Thackray KC, has asked why some rioters have not been charged with riot.

“The prosecution do need to look, for those who are playing front and central roles, at the alternative charge of riot rather than violent disorder.”

I am not accusing Judge Thackray of some terrible unconstitutional power-grab, but on the whole judges should be cautious about making charging suggestions to the prosecution. It is not their job to choose the charges and judges need to be, and be seen to be, scrupulously impartial.

Nevertheless, his suggestion is an obvious one and it’s worth asking why the most serious riots in the last twelve years do not appear (yet) to have resulted in any prosecutions for Riot (to avoid confusion, in this post I’ll use the capitalised form to refer to the offence).

So far, most of those appearing in the Crown Court seem to have been charged, at most, with Violent Disorder, a charge under S.2 of the Public Order Act 1986 for which the maximum sentence is 5 years, although in practice, with credit given for an early guilty plea, sentences of 2 – 3 years are much more likely even in the current atmosphere where the need for deterrence has eclipsed the other purposes of sentencing. Riot is a much more serious offence and carries a maximum sentence of 10 years.

Many of the early August disturbances certainly looked like riots, sounded like riots and to anyone trapped in one of the hotels, mosques or Citizens Advice Bureaux under attack they would have felt like riots. So why have the alleged perpetrators not been charged with Riot?

The main reason is that Riot is much harder to prove than Violent Disorder.

Let’s look at the wording of S.1 (1) of the Public Order Act 1986 which defines the offence.

“Where 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety, each of the persons using unlawful violence for the common purpose is guilty of riot.”

By comparison this is the definition of Violent Disorder in S.2:

“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 his personal safety, each of the persons using or threatening unlawful violence is guilty of violent disorder.”

At first glance they look almost identical.

They share several important common features:

* the requirement that a notional person of reasonable firmness present at the scene would have feared for his personal safety (in neither case need there be an actual person to have so feared),

* the requirement for a minimum number of people to be “present together”: The number is 3 for Violent Disorder and 12 for Riot, and

* the requirement to demonstrate that those “present together” were using or threatening unlawful violence.

* For both offences “violence” is identically defined to include violence towards property as well as persons, and “is not restricted to conduct causing or intended to cause injury or damage but includes any other violent conduct (for example, throwing at or towards a person a missile of a kind capable of causing injury which does not hit or falls short).”

The obvious difference is numerical. It can sometimes be quite hard to prove that 12 people are actually using or threatening violence.

But proving the numbers is not the fundamental difficulty.

In all the major riots there have obviously been more than 12 people “present at the scene.” There is usually ample evidence of many of them using or threatening violence. At the Rotherham hotel riot alone, for example, there were said to have been around 700 people present, and from even a cursory look at the video footage it appears that dozens of those were using or at the very least threatening violence.However, unlike violent disorder where a threat of violence suffices, to convict a particular defendant of Riot you must also prove that he or she personally “used” violence. Thus, someone outside a hotel shouting along with a crowd “get them out” might well be guilty of violent disorder (by threatening violence), but they are not guilty of riot unless they have themselves “used” violence. Being part of a menacing crowd and chanting threatening words is enough for violent disorder. It is not enough to prove Riot.

There is also a significant difference in the mental element required by each offence. Under S.6, Riot requires proof either of an intention to use violence, or an awareness by the defendant “that his conduct may be violent,” whereas Violent Disorder can be committed with an awareness that his conduct may be “threatening.” The latter is easier to prove.

And critically, unlike Violent Disorder, Riot requires proof that the 12 rioters shared a “common purpose.” It is a phrase taken from the old common law offence of riot which the 1986 Act abolished, but it was not without its difficulties at common law and those difficulties have not been resolved by incorporating it in statute. Sometimes a common purpose will be obvious, but not always.

Imagine, for example, that a crowd has gathered in response to a social media post accusing a refugee of rape. Most of the crowd is there to demand harsher immigration laws and the deportation of any refugee convicted of rape: in other words the sort of “peaceful protest” ostensibly called for (if not necessarily anticipated) by Tommy Robinson while vacationing in Aya Napa. But ten members of the crowd never intended to be peaceful at all; they want to burn down a hotel housing refugees. When the police try to move the crowd back from the hotel they are resisted with angry words and some relatively innocuous coins and stones thrown by the “peaceful protestors.” There are more than 12 of them and they are using violence for a common purpose, namely to remain demonstrating at a place of their choosing, and to stop the police moving them on. They are guilty of riot.

But meanwhile the group of ten are behaving in a far more violent way. Some of them have armed themselves with scaffolding poles from a nearby building site, and others are using their fists and feet, trying to break through the police lines to reach the hotel. Do they share a common purpose with the more peaceful protestors? Unless they do, there are too few of them to be convicted of riot, so they would be convicted of the lesser offence of violent disorder. It does not take much imagination to see how the prosecution could easily tie itself in knots with such a case. An outcome in which the most violent participants in the disorder were convicted of a less serious offence than the least violent would present an intractable sentencing problem and would – quite rightly – be seen as absurd and unjust.

And there are other, highly practical, reasons why prosecutors are reluctant to charge Riot. Almost inevitably such a prosecution is likely to involve large numbers of defendants. Of course it is possible to try several co-defendants together, it often happens, but anyone with experience of the criminal courts will know that the more defendants there are in a case, the more difficult it becomes, and the longer it takes. A Riot indictment could easily have 12 or more co-defendants, a number which would make all but the most confident prosecuting counsel and circuit judges blanch a little. Such cases can be divided up into several smaller trials, but whilst that might make the individual cases more manageable, it can also create its own complications and end up taking even longer to reach a conclusion.

Does it really make sense to take up many weeks or months of court time trying to prove Riot charges when all defendants are offering guilty pleas to violent disorder or to other more specific offences (assaults, GBH, criminal damage, arson etc)? Prosecutions (and convictions)  for Riot did follow the The Bristol “Kill the Bill” riots in 2021, but as far as I have been able to see there have been very few others in recent times.

So far most of the reported cases that have come to court have been relatively straightforward. All the sentences so far have followed guilty pleas. More serious and complex cases take much longer to prepare than straightforward ones where defendants have no possible defence, so it is quite possible that Riot prosecutions are being prepared.

The comparative rarity of prosecutions for Riot is shown by the fact that I have only been able to find a single reported appeal of a conviction or sentence for the offence since the Public Order Act 1986 was passed, although there have been plenty of riots over the years. The single case is called Tyler, Frost and others (1990) Cr. App. R.  332 and it arose out of riots that took place in Colchester in 1990, against the introduction of the Poll Tax. The trial lasted 3 1/2 months, most of the defendants were acquitted, none of those convicted received a sentence longer than 2 years, and even that was reduced on appeal to 15 months (According to the report “the actual violence used by Frost on this occasion was almost minimal in that he threw a missile which hit nobody and did no damage. He immediately accepted his responsibility when he was arrested, although he decided to contest the case when it came to court.”).  How times have changed, but sentences for public disorder, as for most other offences, have become much more severe so the Court of Appeal’s leniency by today’s standards  won’t help anyone being sentenced today.

So despite Judge Thackray’s question I doubt that will we see many defendants prosecuted for Riot arising out of this month’s events.

It may well be that there are more charges laid for the offence of “intentionally encouraging” a riot under S.44 of the Serious Crime Act 2007 than for Riot itself.  “Intentionally encouraging an offence” can be committed via social media, it carries the same maximum sentence as the offence encouraged and in many cases it might be easier to prove (not least because it can be committed by a single person without the need to involve 11 others). It is also an offence that can be prosecuted in this country even if it has been committed abroad, something that some social media influencers ought to reflect on if they intend to return to Britain.

It is legislation that could have been directed at Julie Sweeney, who posted – at the height of the riots – “Don’t protect the mosque. Blow the mosque up with the adults in it.” Instead she pleaded guilty to the offence of “sending a communication threatening death or serious harm,” an offence under S.181 of the Online Safety Act 2023, and received 15 months imprisonment. There has been criticism of her sentence, though it does not seem unduly harsh to be gaoled for calling for the occupants of a mosque to be murdered at a time when rioters were in fact trying to do exactly that. In some ways she is lucky. Had she been charged with intentionally encouraging murder she would have been liable for the same sentence as murder, that is life imprisonment.

Update: Almost as soon as I posted this blog news came through that a 15 year old boy has been charged with riot in connection with events in Sunderland on 2nd August.   Old Moore is probably a better predictor of the future than Barristerblogger.