UK Justice Secretary Ken Clarke promised to choose his words more carefully after his claim in June that some rapes were more serious than others. His article about the riots in the Guardian this week suggests he has not heeded his promise.  The Victorian feel of his analysis of the disturbances as an “outburst of outrageous behaviour by the criminal classes” should perhaps not surprise us when research has shown that   people in Britain last lived lives as unequal as today in Charles Dickens’ times. But Clarke’s talk of “a feral underclass” is unworthy language for a senior minister whose responsibilities include strengthening democracy and safeguarding human rights. The terms have rightly been repudiated by London’s acting Police Chief.

The substance of Clarke’s article makes two somewhat surprising points. The first   is that the riots are a symptom of a broken penal system. His evidence for this is that three quarter of the adults charged in the wake of the riots had at least one conviction –in Clarke’s words individuals and families familiar with the justice system who haven’t been changed by their past punishments. While this appears a striking statistic, it needs to be seen in context.

For one thing the police will have rounded up the usual suspects first – we must wait for a thorough analysis to see whether the proportion of known offenders among all of those eventually charged remains as high. But we must also remember that having a conviction is not uncommon. A third of all males born in England and Wales in 1953 had been convicted at least once by 2006. The proportion in the most deprived areas is likely to be much higher.  But  more than half of those known offenders have been convicted on only one occasion- evidence perhaps of  that the  criminal justice system is having a more positive impact than it’s usually given credit for. Almost certainly many more people with convictions living in the areas affected did not take part in rioting than did.

Clarke is no doubt making the point to bolster the case for his rehabilitation revolution which is aimed at improving outcomes among more persistent offenders whose rates of re-offending are high despite periods in prison or subject to community penalties. The recipe he describes in his Guardian article is almost certainly right –“It’s about having a job, a strong family, a decent education and, beneath it all, an attitude that shares in the values of mainstream society.”

But many are sceptical about how this can be cooked up for ex offenders in a climate of growing unemployment and shrinking budgets for the agencies working in the field. The Conservative Daily Telegraph called for a greater investment in the prison estate, not the savings Mr Clarke is being forced to find by the Treasury. But it is really the opportunities outside prison that make or break successful desistance from crime. It is hard to see how Government plans to allow courts to suspend social security benefits as part of a penalty for rioters or to evict them from their homes will prove anything but a disaster in this respect.

Clarke’s second rather unexpected point is that “what the riots really illustrate is the need to make sentencing and other areas of the judicial system more transparent so that the public can understand the decisions that have been reached.” The answer he has come up with seems to be to televise sentencing decisions.  While it is difficult in principle to argue against broadcasting to a wider public the workings of an institution to which individual citizens have free access, it is not at all clear that the mass of TV viewers will in fact accept the decisions that courts reach in the way that he hopes. Doing justice is an inherently contested process.

Take the sentencing of the riot offences .The country’s chief prosecutor has said that “we should not treat these cases as a separate category to be dealt with differently. We should treat them as we do any other case.” The Recorder of Manchester who took it upon himself to produce sentencing guidelines for riot cases in his city took a different view – “that any participation whatsoever of whatever duration in the criminal activities of that night   irrespective of its precise form, derives its gravity because it was carried on by one of those who by sheer weight of numbers subjected the commercial areas to a sustained onslaught of burglary, robbery, theft, disorder and other related offences.”

There is of course a legitimate argument to be had about the right approach to these and indeed to any sentences- the law allows for a range of sentencing purposes, most offences have maximum sentences way above what is the so- called going rate and Sentencing Guidelines are far from binding. One can all too easily envisage likely viewer reaction inhibiting, consciously or unconsciously, decisions which show any hint of apparent leniency, or take any risks however appropriate they might be. The outcome may well be   inflation in the   use of imprisonment and in the length of sentences. Adding any further pressure to a creaking prison system facing ambitious savings targets could derail the rehabilitation revolution before it is underway.

Clearly the frequent failure of prison and community sentences to prevent repeat offending needs very significant attention, from all sectors of government and society. While Clarke identifies some of the key issues in crime prevention, his remedies, including televised sentencing, fail by a considerable way to promote the kind of policies and practice to make sustained and positive change.