The UK’s criminal justice system is ill-equipped to deal with riots

The recent outbreak of far-right inspired riots in towns and cities in England and Northern Ireland calls for a strong response from across the criminal justice system. The police are obviously central to this, and so far appear to be handling a difficult situation well, mobilising additional officers and making hundreds of arrests, even if order has not yet been fully restored. Criminal courts and prisons, while less visible, are equally crucial. But both are woefully ill-equipped to deal with the pressures. 

The criminal justice system is not able to replicate its response to the 2011 riots 

The last sustained breakdown in public order in the UK took place in August 2011. Several days of riots ended up with five people dead and millions of pounds of damage. ³⁰ Dodd V, ‘Cost of English riots much higher than first thought, Met police report suggests’, The Guardian, 24 October 2011, retrieved 7 August 2024, https://www.theguardian.com/uk/2011/oct/24/england-riots-cost-police-report  Despite some criticism that the police took too long to bring the situation under control, ³¹ HM Inspectorate of Constabulary, The rules of engagement, 2011.  the justice response was swift. Within 9 days, more than 3,000 people had been arrested, ³² Dearden L, ‘Riots threaten to overload justice system with ‘no capacity’ for 24-hour courts’, i News, 7 August 2024, retrieved 7 August 2024, https://inews.co.uk/news/riots-overload-justice-system-no-24-hour-courts-3214237  rising to nearly 4,000 by early September. ³³ Berman G, The August 2011 riots: A statistical summary, House of Commons Library, retrieved 7 August 2024, https://commonslibrary.parliament.uk/research-briefings/sn06099/  Courts sat round the clock: almost 2,000 people had appeared in court by mid-October. ³⁴ Berman G, The August 2011 riots: A statistical summary, House of Commons Library, retrieved 7 August 2024, https://commonslibrary.parliament.uk/research-briefings/sn06099/  Over 1,400 people ultimately ended up with prison sentences. ³⁵ MoJ, Statistical bulletin on the public disorder of 6th-9th August 2011, 2012, retrieved 7 August 2024, https://www.gov.uk/government/statistics/statistical-bulletin-on-the-public-disorder-of-6th-9th-august-2011--2   

Such a response is simply not possible today. In 2011, the coalition’s austerity programme had only recently begun, but over the decade would see the capacity of the criminal justice system decline across the board. Many fewer criminal lawyers, judges and magistrates mean courts are hearing fewer cases; in the case of the crown court, down a third on 2011. ³⁶ MoJ, Judicial and court statistics (annual) 2011, retrieved 7 August 2024 and MoJ, Criminal court statistics quarterly: October to December 2023, retrieved 7 August 2024.  The case backlog is double what it was then, equivalent to 95,000 cases when adjusted for complexity.  

There are now, despite the opening of new prisons, fewer total prison spaces and an acute capacity crisis, with Labour forced to announce expanded early releases within a week of taking government. Cuts to prison officer numbers, though now partly reversed, also mean that officers are much less experienced, and so less able to maintain security and safety in overcrowded jails. 

The police also face another under-appreciated challenge today compared to 2011 in the sheer volume of evidence to deal with. Officers will have to trawl through vast swathes of phone footage, tweets, Telegram messages on a far greater scale than 13 years ago. This work is time consuming and hard to do while so many officers are still on the street, and may partly account for the slower arrest rate: a week in, some 400 people have been arrested.

Delayed justice now risks further unrest

These problems make the situation facing the new government much harder to deal with. Introducing 24-hour courts will not help if there are no lawyers to conduct cases or magistrates to hear them; the Criminal Law Solicitors’ Association has already stated there is “no capacity in the system”. ⁴¹ Dearden L, ‘Riots threaten to overload justice system with ‘no capacity’ for 24-hour courts’, i News, 7 August 2024, retrieved 7 August 2024, https://inews.co.uk/news/riots-overload-justice-system-no-24-hour-courts-3214237  Likewise, a lack of cells means many of those arrested will have to be released on bail – as indeed has been the case for most of those arrested so far – weakening the prime minister’s pledge of swift, sharp justice. 

This is particularly unhelpful when the unrest is still ongoing. Despite claims of ‘mindless’ violence, people don’t typically participate in riots unthinkingly: they are often swayed by pragmatic considerations such as the likelihood of being caught. ⁴² Gross M, ‘Why do people riot?’, Current Biology, 2011, Vol 21, Issue 18, pp.R673–6, https://doi.org/10.1016/j.cub.2011.09.015; Baudains P, Braithwaite A and Johnson S D, ‘Target choice during extreme events: a discrete spatial choice model of the 2011 London riots’, Criminology, 2013, Vol 51, Issue 2, pp.251–85, https://doi.org/10.1111/1745-9125.12004  If there is a perception that rioters are ‘getting away with it’ – even if they are arrested but released for weeks before being charged – they may be more likely to continue to participate, or encourage others to join. 

A perceived lack of punishment for rioters may also lead other groups to take to the streets, stoking tensions further – a risk that is especially pronounced given the explicitly racist nature of many incidents. The hope is that the severity of sentences handed down so far, ⁴³ Sky News, ‘UK riots: Pair jailed for over two-and-a-half years each over unrest’, 8 August 2024, retrieved 8 August 2024, https://news.sky.com/story/pair-jailed-over-riots-in-southport-and-liverpool-in-televised-sentence-13193099  even if modest in number, will act as some deterrence.

Early release and magistrates’ courts could give the government more room for manoeuvre

The challenges the government faces are deep-seated and cannot be solved overnight, but it has taken some sensible steps to deal with the crisis in the short term. It has promised more than 500 additional prison spaces, including by repurposing the closed Young Offenders’ Institution HMP Cookham Wood, with the first places promised as soon as next week. ⁴⁴ Gregory A and Cooke M, ‘Prison capacity already ‘touch and go’ as far-right riots heap pressure on crisis-hit justice system’, The Independent, 6 August 2024, retrieved 7 August 2024, https://www.independent.co.uk/news/uk/home-news/riots-uk-prisons-overcrowding-far-right-court-b2591454.html  In the courts, absorbing additional cases into the existing lists has allowed some cases to be heard quickly. But this may still not be enough.

There are more radical steps the government could pursue that might help contain the situation. Bringing forward prisons’ early release measures, scheduled for 10 September, would free up thousands of spaces. Temporarily increasing the maximum sentence that can be handed out by magistrates’ courts from six months to 12 (as happened during the pandemic) would allow these courts to handle more serious offences, letting them be handled faster and freeing up crown courts to prioritise the most serious crimes.

The eruption of far-right violence has been a big test of a government just a month in office. The steps taken so far have been sensible, but the justice system is now likely to need further support to handle the pressure.