Thread by @TweetingYet

Right, time to look at one of the controversial ones: 10 years for damaging a statue. Well, sort of.

Clause 46 of the Police, Crime, Sentencing and Courts Bill has been widely reported as imposing a 10 year sentence for damaging a statue. I'm going to take this in stages.

First, remember always that the maximum sentence for any given offence is very rarely imposed and even more rarely is it imposed for anything other than a really serious offence of its kind.

So also please stop this nonsense about people getting 10 years for being annoying...

So what does Clause 46 do? Well, one thing it doesn't do is mention the maximum sentence. Instead, it addresses "mode of trial".

In very simple terms, we have Magistrates' Courts for minor matters and the Crown Court (judge and jury) for serious matters.

Some cases can only be tried in the Crown Court (murder, rape, robbery etc). Others can only be tried in the Magistrates' Court (minor driving matters, minor public order matters etc). The ones in the middle are called "either way" offences.

An either way offence can be tried in either Court. Generally, the more serious versions are tried in the Crown and the less serious in the Magistrates'. But defendants facing either way matters also have the right to elect jury trial.

This can mean minor matters going before a jury, which is often considered a waste of everybody's time and resources. Having once spent 2 weeks in front of a jury dealing with somebody who had refused to reduce the height of his fence from 2.5m to 2m, I sympathise with this view.

For a more detailed look at the Court system, see @BarristerSecret's first book (and many others').

Now, criminal damage is either way. On the face of it, this means that causing any slight amount of damage could lead to people electing Crown Court trial.

To avoid that, the Magistrates' Courts Act 1980 (s22 and Sch 2, if you're interested) determined that where the value of a criminal damage is under £5,000, it is triable only in the Magistrates' Court (unless it is arson, which is criminal damage by fire).

This and other provisions means that any non-arson criminal damage attracts a maximum sentence of 3 months' imprisonment, no matter how outrageous the damage may be. The financial value is all-important.

Arson is not included in this restriction. If you damage anything by fire, no matter how low the value, you can go to the Crown Court and therefore technically face that 10 year maximum.

Clause 46 treats damaging a memorial the same way as we treat arson.

If the damage is to a memorial then the financial limit does not apply and the case is triable either way. This does not mean that it will automatically go to the Crown Court or that you get 10 years on the spot.

It just means that criminal damage valued at below £5000 can go to the Crown Court and can attract a sentence of over 3 months.

"Memorial" is then defined. Basically it's anything with a commemorative purpose, including a garden or plant.

It specifically also includes anything left at a memorial that has or may be supposed to have a commemorative purpose, such as a bunch of flowers (specifically noted by the Bill) or presumably a wreath, remembrance cross etc.

So never mind the statue of Churchill: you can get 10 years for damaging flowers!

Except you won't. Obviously.

The short version of all this is therefore that this widely attacked clause basically means that criminal damage to anything that has a commemorative purpose *can be* dealt with more seriously than it currently can, even if the damage is less than £5000 (which it often will be).

It is a matter of taste whether you like this provision. I don't mind it, personally, but I quite understand the views of those who do.

An afterthought: much the same effect could have been achieved by saying that for the purposes of mode of trial of criminal damage offences, damage to memorials shall be assumed to be worth £5,001.

Another afterthought: if you want to get angry about the law of criminal damage, get angry about the fact that damaging something worth 1p has a maximum sentence of 10 years if you use fire.