Written evidence submitted by the Traveller Movement (OUS0015)

1. What does the public know about the current approach to sentencing in England and Wales?

As the Sentencing Academy’s recent report indicates, public knowledge of community sentences and other non-custodial outcomes is fairly poor.[1] Public knowledge of Out of Court Disposals (OOCDs) is particularly poor, as recent changes to the OOCD framework have not been implemented in all police forces. This has resulted in a lack of consistency in how OOCDs are issued, which has complicated the system and the public’s understanding.[2] As a result, much of the public associate sentencing with prison and custodial sentences only.

2. How does the public access information on sentencing?

Access to information on sentencing is not distributed uniformly. Many groups in society - particularly demographics who speak English as a second language, or have low literacy rates and low levels of educational attainment - find it more difficult than others to access support and guidance. They may be otherwise unaware of their rights and responsibilities.

People from a Gypsy, Roma or Traveller background have the lowest educational attainment rates and the highest levels of illiteracy of any ethnic group in the UK.[3] This creates significant barriers in both accessing and understanding information relating to sentencing. Previous research by the Traveller Movement on the sentencing of children and young people from GRT backgrounds found that speech and language difficulties may affect “the ability of the child or young person (or any accompanying adult) to communicate with the court, to understand the sanction imposed or to fulfil the obligations resulting from that sanction”.[4] This is applicable to people from GRT backgrounds of all ages.

To an extent, the Ministry of Justice (MoJ) is cognisant of the barriers facing GRT people accessing information on sentencing.  As part of its work on the Female Offender Minority Ethnic (FOME) strategy, the MoJ has established a task and finish group with the specific remit to publish accessible guidance for women. This will outline rights and responsibilities, and explain the criminal justice pathway from arrest to sentencing in a simple, accessible format. The Traveller Movement have joined this task and finish group to provide a GRT-rooted perspective that would otherwise be absent. We welcome the MoJ’s work in this area but alone it is not enough. We have concerns with how widely this guidance will be disseminated, and the extent to which agencies throughout the criminal justice system embed the guidance into their work. Additionally, we believe that similar guidance must be produced for males, and for children and young people.

3. What are the barriers to improving public awareness of how sentencing works?

Under the Equality Act 2010, Gypsy, Roma and Traveller (GRT) people are legally recognised ethnic minorities with protected characteristics. The GRT community is one of the most marginalised and disadvantaged groups in society, facing poor outcomes in all aspects of life; the education, health, socioeconomic status, and employment of GRT people is worse than that of the general population.[5] GRT communities also tend to have high levels of illiteracy and digital exclusion. This can create barriers in their understanding of the criminal justice system, including the sentencing process. If they need or want to research sentencing, the majority of the public are likely to use the Internet in this digital age. Many members of the GRT community, however, are unable to access the Internet due to digital illiteracy and/or no access to Wi-Fi or mobile data. This is particularly the case for GRT people who maintain a nomadic lifestyle and Travel from site to site.

Furthermore, the complexities of the criminal justice system can be difficult even for experts to navigate. Members of the public, most of whom do not have an in-depth knowledge of the justice system, may struggle to fully comprehend the sentencing process and outcomes other than a custodial sentence.

4. To what extent does public understanding of sentencing affect public confidence in the criminal justice system?

Evidence shows that people from ethnic minority backgrounds are overrepresented in the criminal justice system and face disproportionate outcomes in relation to White British people.[6] As a result, those from minority backgrounds tend to have low trust and confidence in the criminal justice system. Gypsy, Roma and Traveller adults constitute 6-7% of the prison population in England and Wales, whilst nearly 10% of children in the youth estate identify as GRT.[7] This is despite the fact that GRT people constitute an estimated 0.1% of the UK population, as of 2011.[8] It is important to note here that these statistics may be underestimations, due to inconsistent ethnicity monitoring systems and an unwillingness to disclose GRT ethnicity out of mistrust or fear of discrimination. It is hoped that the 2021 Census data will give a more accurate picture of the percentage of Gypsy, Roma and Traveller people in the UK.

Despite a certain level of unreliability in data on the GRT community, it is clear that they are hugely overrepresented in the criminal justice system. As with other overrepresented minorities, including people from Black and Mixed ethnic backgrounds, this leads to a lack of trust and confidence in the justice system. Ethnic minority communities feel over-policed and unfairly treated in comparison to their White counterparts.[9] GRT communities, who historically have faced a high level of discrimination and aggression at the hands of police and judiciary, are typically mistrustful of law enforcement officials and those they perceive to be working alongside them.[10] There is concern within the community that a GRT ethnicity can result in a higher likelihood of custodial over community sentence. If a magistrate or judge is unfamiliar with GRT history and culture, or carries biased preconceptions about members of the community, GRT defendants may be considered to be ‘flight risks’ due to the nomadic lifestyles associated with the community. As a result, GRT defendants may be more likely to be refused bail and kept on remand, and/or to be given a prison sentence for low-level crimes.

If a precedent is set for unfair treatment against particular ethnicities in the criminal justice system, including the sentencing process, it stands to reason that those communities will have a low level of confidence in the justice system. Research conducted by the Traveller Movement in 2020 found that more than half the GRT people surveyed had reported a crime committed against themselves or their family. Of these, the majority said that no action had been taken when they had reported the crime to the police.[11] In this way, GRT communities are not only treated unfairly as defendants within the criminal justice, but also face discrimination as victims when the crimes they report often do not progress to the sentencing process. As a result, GRT confidence in the criminal justice system tends to be low.

5. What could be done to improve public understanding of sentencing?

Greater communication with the public about alternatives to custody would be beneficial, particularly at the point of arrest where many may assume they will be given a prison sentence. Recent research by Transform Justice reveals that the public have largely negative views of the court system in Britain, but feel that it remains the bedrock of British criminal justice.[12] According to the research, the majority of people regard the police to be best suited to deal with low-level crimes, yet amid recent events, public trust in the police is at a new low.[13] These contradictions contribute to confusion and disillusionment with sentencing and with the justice system more generally.

To overcome this, it is important for there to be complete transparency at each stage of the criminal justice system, particularly during sentencing. The public should be aware of all potential outcomes, including community sentences, mental health and addiction interventions, and restorative justice programmes as well as the more well-known custodial sentences.

Entrenched misconceptions and/or a lack of cultural awareness have the potential to impact the public’s understanding of sentencing as it pertains to GRT communities specifically. Gypsy, Roma, and Traveller people are sometimes – wrongly – understood to be members of one group on the basis of a shared occupational background or ‘way of life’, as opposed to being members of explicit and distinct ethnic minorities with associated legal protections, as defined in UK legislation. Recent polling has also indicated that a majority of UK citizens hold negative feelings for GRT people.[14]

These misconceptions are sometimes shared by practitioners working in the criminal justice system. In a recent training event delivered by The Traveller Movement, a serving prison officer asked how they could effectively engage with Irish Traveller people in prison and stated that their existing difficulties to meaningfully interact was limited by “The Traveller Code”. Such a ‘code’, of course, does not exist but this reference reveals an implication that all Travellers adhere to a shared criminal code of conduct. Further research is needed to quantify the impact of misconceptions of GRT groups on public understanding of sentencing, but it is plausible – if not likely – that the dominant cultural view of GRT people results in a public desire for harsher sentencing for those from GRT backgrounds.

7. To what extent should public opinion inform sentencing policy and practice?

To some extent, it is important that sentencing policy is informed by public opinion. In 2015, the Ministry of Justice stated that the effective functioning of the justice system is partly impacted by whether or not “the public believe the CJS is fair and effective”, particularly when this concerns cooperation from witnesses and victims.[15]

At the same time, evidence from Transform Justice suggests that many members of the public view sentencing as a means of punishing those who have committed crimes, over other goals including rehabilitation.[16] Clearly, this is something that should be overcome; rehabilitation is equally, if not far more, important than punishment, particularly for low-level crimes. This, however, is a long-term shift and so sentencing policy and practice should not be wholly determined by public opinion, which may favour longer custodial sentences as a traditionally punitive outcome, over alternatives to custody. Furthermore, biases held by the public against people from marginalised and ethnic minority backgrounds would negatively impact sentencing if public opinion wholly informed its practice. Sentencing decisions should be made as objectively and impartially as possible, in order to prevent discrimination and disproportionalities.

July 2022