Charging and convicting rioters is not a simple matter

Amid the present - understandably febrile - state of public opinion we are hearing, as we often do in these circumstances, calls to short-circuit the cumbersome processes of the law in order to bring the rampaging rioters and looters to justice. The prime minister is reported as saying that a "major police operation" is under way to track down looters caught on CCTV "picture by picture", and that "phony concerns about human rights" issues won't stop them being published. He wants anyone convicted of violent disorder to be sent to prison.

I am sure that is what he wants, but it isn't his decision, because the judiciary is of course independent and bound by the law, as well as today's omnipresent sentencing guidelines.

In the fluid situation of a riot the police are far too busy to be able to concentrate on the minutiae of the Police and Criminal Evidence Act 1984, and record careful contemporaneous notes. When the night is over and the dust begins to settle, as the acquisitive hordes lug home their plasma TVs, mobile phones and trainers, the police face an awesome task in putting the evidence into the kind of form that a court could accept. What this means is that only the most straightforward charges with clear strong evidence will make it to court.

In particular, identification will be in issue. Many rioters were wearing various kinds of disguise, especially the ubiquitous hoodie. There is a vast body of law about identification, and every magistrate has heard the 'Turnbull' direction to the effect that a sincere witness can be mistaken. That means that the Crown Prosecution Service will be properly cautious about running with any charges based on a simple uncorroborated ID. In a trial, a defence lawyer will be able to make mincemeat of a witness whose evidence can be discredited - or

at least brought below the 'beyond reasonable doubt' threshold - by reference to the noise, the smoke, the chaos and the fear of a riot.

CCTV is not the panacea that it is sometimes made out to be, either. Just have a look at the footage and the stills and put yourself in the shoes of a defence lawyer. "Yes, members of the jury, this footage is disturbing. But can you be sure – completely sure – that the young man in the video is the man before you today? One young man in the street in Tottenham, among thousands of others?"

I have heard from sources in the police and in the court system that many of the early charges are for burglary and handling. If you are in a store that is being looted, and are then arrested, ID issues do not arise - any more than they do if you are picked up on the way home with a 40-inch television for which you do not have a receipt.

Then there is the issue of bail. Threats have been made that those arrested in the riots will be refused bail and remanded in custody, but there is nothing in the Bail Act to say that certain crimes preclude the grant of bail. There is a presumption of the right to unconditional bail unless there are 'substantial' grounds to fear the defendant will abscond, commit more offences, or interfere with witnesses. Realistically, is not a young looter who has been arrested and charged, with access to free legal advice, then bailed, less likely to reoffend than the man who has not been caught and fancies having another go at PC World?

It can be tempting to treat a remand in custody as a first bite at punishing an offender. That is not just wrong, but also illegal.

This week's riots have been so shocking that normally level-headed people start to see due process of law as an encumbrance to justice. The reverse is true – due process is fundamental to justice, even for the unprepossessing and the downright nasty offender.

Bystander is the pseudonym of an English magistrate. He blogs at The Law West of Ealing Broadway