Magistrates were urged to abandon sentencing guidelines when dealing with rioters last month because "nothing like this was envisaged", according to court documents released to the Guardian.
The text of two controversial emails circulated to justices' clerks immediately after August's disturbances raises questions about judicial independence and the use of blanket guidance irrespective of individual cases. One human rights group described the emails as "disturbing".
The messages appear to betray a sense of confusion – verging on chaos – behind the scenes as hundreds of suspects arrested for looting and violence were processed in late night emergency sittings.
The documents, written by a senior justices' clerk in the London regional office of Her Majesty's Courts and Tribunals Service (HMCTS), were released by the Ministry of Justice following a freedom of information request from the Guardian.
They were sent out on successive days at the end of the week in which rioting had started in Tottenham, north London, following a police shooting, before degenerating into widespread looting as it spread across the capital and other cities.
The emails were sent to justices' clerks, who sit alongside magistrates providing guidance on the law and sentencing recommendations. The first, addressed "Dear all", began: "I should be grateful if you would ensure that the following advice is cascaded to every member of your legal team as soon as possible.
"The sentencing guidelines cannot sensibly be used to determine the sentence in cases arising from the recent disturbances/looting. When the guidelines were written nothing like this was envisaged."
Most of those arrested for looting had been charged with "commercial burglary", it noted. "The general advice from the higher judiciary is that we will not be criticised if we return these … If in doubt, commit to the crown court."
Some of the words in the first email were missing. The second message read: "Apologies for the fact that the email … sent yesterday is confusing and frankly incoherent. The intention was that you should advise magistrates to commit to the crown court cases of commercial burglary, or handling … or violent disorder arising from the recent disturbances.
"There is a general acceptance that what occurred earlier this week is not covered by the sentencing guidelines and it will be very much the exception that such cases are sentenced in the magistrates courts …Hopefully before too much longer we may get some guideline cases."
Commenting on the emails, Sally Ireland, the director of policy at the civil liberties group Justice, said: "Justices clerks can give directions to assistant justices' clerks under the Courts Act; however, the content of the email is disturbing. The application or disapplication of sentencing guidelines should be a matter decided on a case by case basis."
She also questioned the term "higher judiciary", saying: "In what way did they give this general advice? The higher judiciary does not have a role in allocation/sentencing by magistrates, except in the case of appeals and guideline judgments."
Paul Mendelle QC, a former chairman of the Criminal Bar Association, said: "The idea that established Court of Appeal authorities can be set aside or ignored by the secret advice from an anonymous civil servant strikes me as undemocratic at best and unconstitutional at worst.
"Blanket advice to magistrates to deal with all cases in one particular way – commit to crown court – regardless of the facts of the individual cases might be seen as an unlawful fetter on their discretion."
At the time the emails triggered alarm on at least one bench, prompting questions about magistrates' independence.
The week after the riots, Novello Noades, the chair of Camberwell Green magistrates court, in south London, claimed the court had been given a government "directive" that anyone involved in the rioting should be given a custodial sentence. She later retracted her statement and said she was mortified to have used the term "directive".
It has been generally accepted in courts in the legal and judicial world that participation in violent riots and looting should be deemed an aggravating factor, leading to harsher sentences than for theft committed as shop-lifting.
Some sentences handed down immediately after the riots in August were criticised as being off the judicial scale. The former director of public prosecutions Lord Macdonald warned courts risked being swept up in a"collective loss of proportion". One person got six months for stealing £3.50 worth of water. Two youths were jailed for four years each for inciting riots on Facebook that never took place. Some sentences have since been overturned.
Unusually, the Ministry of Justice provided an accompanying explanation with the emails, rebutting any suggestion that magistrates had been inappropriately influenced by government officials or that the independence of the judiciary had been compromised.
"HMCTS is not involved in any guidance justices' clerks choose to give to magistrates, as this guidance is given whilst acting in a quasi-judicial capacity," it said. "It did not contain any direction by HMCTS or the Ministry of Justice on how anyone should be sentenced. Nor were there correspondence or conversations with the justices' clerks on any guidance prior to its issue."
The statement continued: "We believe there is a strong public interest in ensuring there is confidence in the independence of the judiciary and we do not want this to be undermined by a perception the government has inappropriately issued any directions as to the types of sentences which should be handed down."
According to the latest MoJ figures, Some 1,715 riot-related suspects have so far appeared before magistrates courts, two-thirds in London.