Written evidence submitted by Abiodun Michael Olatokun (OUS0018)
- Abiodun Michael Olatokun is a Lecturer in Law at London South Bank University writing about the participation of the public in law-making and politics. A member of the Solicitor General’s Panel on Public Legal Education (SGPLE), he has provided training to Nepali prosecutors on the sentencing approach of English and Welsh courts.
- Abiodun has been the project manager of ‘Citizenship and the Rule of Law’ since 2016. ‘Citizenship and the Rule of Law’ is an initiative of the Bingham Centre for the Rule of Law aiming to increase the public’s understanding of legal systems through the provision of educational interventions such as textbooks, online courses and in-person delivery.
- The Bingham Centre’s ‘The Rule of Law for Citizenship Education’ textbooks include several lessons on criminal justice where sentencing is a relevant issue. Abiodun has taught approximately 100 of these lessons to secondary school and primary school students in every region of England, and this submission is based on his experience in that context.
- Abiodun has also conducted research on behalf of the Cabinet Office to understand public perceptions of the official messaging employed during the EU Referendum campaign.
What does the public know about the current approach to sentencing in England and Wales?
- There are a number of sources which contribute to the public’s knowledge about sentencing. The National Curriculum mandates the teaching of specific content within the compulsory ‘Citizenship Education’ (CE) subject that is of clear relevance.
- The CE Programmes of Study at Key Stage 3 and Key Stage 4 (KS3&4) aim for students to “develop a sound knowledge and understanding of the role of law and the justice system in our society and how laws are shaped and enforced”.
- At KS3 the requirement is for students to be taught about “the nature of rules and laws and the justice system, including the role of the police and the operation of courts and tribunals”. At KS4 students are to be taught about “the legal system in the UK, different sources of law and how the law helps society deal with complex problems.”
- These requirements are necessarily broad in order to encompass the interdisciplinary span of CE; a field engaged with political, philosophical, economic and legal questions. A negative consequence of this skeletal framework is that an introduction to sentencing is not guaranteed even where students learn about CE.
Patchy provision; a parlous state
- Another problem with imposing a strong emphasis on the role that CE can play in encouraging greater public understanding of sentencing is that recent changes in the legal structures of schools have meant that more than 66% are not bound to teach the national curriculum (including those that are academies and free schools).
- This led the author and others to give overwhelmingly negative written evidence to the ad hoc select committee on Citizenship and Civic Engagement in 2017 that CE in England has been in decline for many years, leading the committee to remark that the subject had degraded to a “parlous state” in its 2018 report of that session. A follow-up inquiry in 2022 suggested that little progress had been made since then.
The role of the public notice
- The other key place in which the public learn about the range of criminal orders and sanctions are through ad hoc notices placed as disincentives from specific prohibited behaviour. The most simplistic notices forego an opportunity to make knowledge of sentencing more widespread (learning about Bands) in favour of the maximum penalty (you could face “an unlimited fine” for flytipping in Hampshire).
- The author suggests that it is common for such notices to suggest that any commission of the offence in question could lead to a punishment at the very highest end of the spectrum. Though such draconian sentencing is uncommon for the crimes concerned, this tells us something about the most frequent communication of sentencing to the public; there is clearly an adverse relationship between the level of disincentivisation these notices achieve and the provision of realistic education to the public about the likelihood and probability of an unlimited fine.
Reflections from the field
- The author’s experience of teaching criminal law in various community settings suggests that the current approach to sentencing is not well known or understood amongst young people. When asked for their opinions in relation to normative questions such as “The child should receive the same prison sentence as an adult who committed this crime,” students have typically answered correctly, though there have been a number of fundamental areas that are absent:
- The role of judicial discretion in most sentencing,
- The overall difference between civil and criminal law,
- The difference between a hearing about the guilt of the accused vs what punishment they should receive,
- of awareness about the routine elements of sentencing, including the application of judicial discretion.
What could be done to improve public understanding of sentencing?
Recommendation 1- The provision of high-quality Citizenship Education
- An independent evaluation of the Bingham Centre’s CE resources saw 97% of students report an increased understanding of law and justice as a result of the initiative. This research coupled with Abiodun’s collaborative work with other members of the SGPLE reaffirms the principle that high-quality CE can help. CE is not a panacea, but it will ensure that the skills of inquiry and investigation required to understand the sentencing guidelines are more widespread.
Recommendation 2- Improving the quality of information in prohibitory notices
- A principle, perhaps encouraged by the Local Government Association, that additional information will be provided when informing the public that they could face a criminal penalty. This could be in the form of a QR code added to a leaflet or poster.
Recommendation 3- Revive ‘You Be the judge’
- ‘The Rule of Law for Citizenship Education’ contains an exercise called ‘The Maverick Judge’ in which students are asked to role play as legal assistants advising a recorder. Whilst not directly engaged with sentencing, the activity has enabled students to understand the importance of judicial discretion at all points of a criminal trial.
- The success of the above work is complemented by a 2013 report of the Ministry of Justice in relation to its ‘You Be The Judge’ resource. This report illustrated that the exercise of applying the sentencing guidelines can modify users’ perceptions of the harshness or leniency of sentencing.
- The author cannot identify any current experiential educative tools around sentencing. My final recommendation is to revive ‘You Be The Judge’ in an improved, gamified experience that is fun and engaging for time-poor audiences with much else to do. This would represent a valuable contribution to the education of the public around sentencing and help to rebut misconceptions that may arise from word of mouth and the multifarious flawed representations of criminal law in entertainment media.
 Activity 5