22/08/2011 05:49 BST | Updated 15/10/2011 06:12 BST

Apples, Oranges, Riots and Godwin's Law

Have you heard of Godwin's Law? Basically, it is the observation that:

As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1 (100%)

I propose an equivalent for sentencing, plotting the correlation between the publicity a sentence receives and the chance of it being compared to (an often fictitious) sentence for rape: that is, the more publicity the offence and sentence receive, the probability of a comparison to a sentence for rape approaches 100%. In addition, the speed at which a comparison is made is also directly linked to the volume of publicity, and at the highest end, is practically instantaneous.

I was going to call it 'Vagina Law' but quickly realised that Godwin's Law would in all likelihood come into play, in invoking an assumption that I refuse to acknowledge that rape is not a crime limited to women due to a personality flaw. On that basis, as a working title, I will call it 'Wiggy's Law' (which will also no doubt still create such a nexis given that I am having the audacity to name a law after myself).

Why is this an issue? Well, firstly the sentence compared is often fictitious. Should you ever question a person who claims to have heard of the mentioned sentence for rape, they claim to have read it somewhere. Well, that's super, but I once read somewhere that the sky was about to fall in; however, empirical evidence suggests that (*checks outside*), yup, it is still up.

More importantly it is simply wrong to compare sentences for one crime with another, as that is not how sentencing works. It is rather akin to comparing apples and oranges, in that they share some similarities, but are individually unique.

So, sentencing. How does it work?

Section 170 (9) Criminal Justice Act 2003 says the Sentencing Guideline Council may issue definitive guidelines for criminal sentencing, which they have done for a range of offences. Section 172 CJA 2003 says that the guideline has to be used where there is one. The Sentencing Council rather helpfully has a site where all the current guidelines can be viewed here.

Given a lot of the sentences currently being publicised are for burglary from a non-dwelling arising from the recent riots, it makes sense to look at that offence (which is being referred to as 'looting'). The guideline for the offence can be viewed here. Page 9 goes through the decision making process; Annex A is the standard aggravating and mitigating factors.

In paragraph 2 the guideline states:

"In relation to harm, in general, the greater the loss, the more serious the offence. However, this is subject to the considerations set out in the rest of this paragraph. The guideline is based on the monetary value of the amount involved but, the monetary value may not reflect the full extent of the harm caused by the offence."

It goes on to specify the following elements:

"any harm in the form of public concern or erosion of public confidence"

"offenders operating in groups or gangs"

It is those factors that are particularly important at the moment. We are seeing huge amounts of defendants being brought before the magistrates courts in respect of offences relating to the riots. The maximum sentence a magistrates court can impose is 6 months, hence many are being sent to the Crown for sentence, where, in respect of this offence, the maximum sentence is 10 years.

While 6 months for stealing water from Lidl may seem harsh taken alone, one has to put it within the factual and sentencing matrix for like offences, with one eye on personal mitigation. If it still seems harsh, appealing the sentence is a option available, the research for which will include looking at cases of the same offence which share a similar factual make-up and looking where the case in question lies, remembering how personal mitigation can affect a sentence. What one doesn't do is trot out a trite comparison against other offences which share no other like qualities save for being a sentence. Fruit salad, anyone?