Sentencing overhaul

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Rosina Cottage QC outlines the tougher sentencing guidelines in force to tackle escalating knife and acid crime


In March 2018, the Sentencing Council published a new guideline for the sentencing of offenders convicted of the possession of a bladed article or offensive weapon in public, and of using one to threaten someone. Its aim is to ensure consistency in sentencing and bring guidance for courts up to date, reflecting the legislative changes that have occurred in recent years as a result of Parliament’s concern about the social problem of offenders carrying knives. The guideline, which will come into force in courts on 1 June, brings in comprehensive guidance where previously it had been very limited.

Prior guidance

There was some existing guidance for adult offenders being sentenced for possession offences in the magistrates’ courts, but no guidance for adult offenders being sentenced in the Crown Court, or for children or young people.

The magistrates’ guideline Possession of bladed article/offensive weapon, was produced by the Sentencing Guidelines Council (SGC) in 2008, and is contained within the Magistrates’ Court Sentencing Guidelines (MCSG). It was produced alongside an additional note, Sentencing for possession of a weapon – knife crime, which was to be read with the guideline. This note drew a distinction between offences involving a knife and those involving other weapons, and referred to the judgment in R v Povey [2008] EWCA Crim 1261 which recommended that, when sentencing an offender for an offence involving a knife, the MCSG guideline should normally be applied at the most severe end of the appropriate range to reflect prevalence concerns. This meant that the starting point sentence should be at least 12 weeks’ custody when the offence involves possession of a knife.

Since the development of the magistrates’ guideline in 2008, a number of new offences have been introduced, namely possession of bladed articles/offensive weapons on school premises or in prisons and the offences of threatening with a bladed article/offensive weapon in a public place or on school premises. Legislation was also amended to provide that any offender convicted of a second or further offence will be subject to a mandatory minimum sentence of six months for an adult and four months’ Detention and Training Order for anyone under 18. The new threats offences also carry a mandatory minimum sentence of the same length.

Given the legislative changes, Court of Appeal rulings and lack of guidance, along with the relatively high number of offences coming before the courts, the Council decided to bring guidance up to date and ensure all courts were covered.

The new guideline is divided into three sections covering:

  • possession (adult offenders);
  • threats (adult offenders); and
  • possession and threats (children and young people).


It provides sentencers in the Crown Court, magistrates’ court and youth court with guidance covering nine offences:

  • possession of an offensive weapon in a public place;
  • possession of an article with a blade/ point in a public place;
  • possession of an offensive weapon on school premises;
  • possession of an article with a blade/ point on school premises;
  • unauthorised possession in prison of a knife or offensive weapon (adult guideline only);
  • threatening with an offensive weapon in a public place;
  • threatening with an article with a blade/ point in a public place;
  • threatening with an article with a blade/ point on school premises; and
  • threatening with an offensive weapon on school premises.

 

Higher sentences

The aim of the guideline is to ensure that sentence levels reflect the serious social problem of offenders carrying knives, and reflect the judgments in a number of leading Court of Appeal Cases such as R v Povey. In some cases, it is likely to lead to higher sentences. The structure of the new adult ‘Possession’ guideline and the fact that it incorporates the key principles set out in case law, may lead to an increase in the sentences received by some offenders for carrying bladed articles or other ‘highly dangerous’ weapons.

The adult ‘Threats’ guideline aims to reflect both the principle set in case law, and the fact that Parliament has set a mandatory minimum sentence for those that use a weapon to threaten. Due to the mandatory minimum, the starting point sentence for any offender charged with this offence must be at least six months’ custody. This means that where the weapon used to threaten was a bladed article or ‘highly dangerous’ weapon, the starting point sentence will always be higher than six months. This may lead to an increase in the sentences received by some offenders who threaten using a bladed article or other ‘highly dangerous’ weapon.

The guideline covering offences committed by children and young people is, however, not intended to make significant changes to the length or type of sentences being given.

Consultation and responses

The Council consulted on the draft guideline between October 2016 and January 2017, attending events with stakeholders to discuss the consultation as well as considering written responses. The range of views and expertise were of great value in informing the definitive guideline.

In general, there was a positive response to the proposals, though Council took on board constructive criticism and considered suggestions for amending parts of the draft guidelines.

The main themes emerging from the responses to all three guidelines included the need for the term ‘highly dangerous weapon’ to be defined, the need for more guidance when deciding whether it would be ‘unfair in all of the circumstances’ to impose a statutory minimum sentence and that there were a disproportionate number of aggravating factors compared to mitigating factors. As a result, there are now additional sections defining what comprises a highly dangerous weapon and what would make it unjust to impose the statutory minimum. Some aggravating factors have been removed as some are not relevant to possession cases, but as aggravating factors included in guidelines are not exhaustive, they can always be included where relevant.

To assist the Council in developing the guideline and to ensure the approach works as intended, a number of research exercises were conducted between 2015 and 2017. The Council considered statistical data from the Court Proceedings database for the offences covered in the guideline to get a picture of current sentencing levels and this informed the starting points and ranges in the draft guideline. In setting sentencing levels, the Council pays close attention to current sentencing practice to ensure that any change to sentencing practice is minimised and only occurs where intended. The sentencing levels in the adult guidelines were set to ensure that certain offences, such as those involving knives receive the highest sentences, and to take into account the mandatory minimum sentences imposed by Parliament.

To help understand more about the nature of cases in the Crown court, a content analysis of 110 transcripts of sentencing remarks was undertaken for the offences of possession of a bladed article or offensive weapon, and threatening with a bladed article or offensive weapon. The aim was to understand more about the nature of offences receiving sentences of varying lengths, to help determine what factors differentiated a more from a less serious offence. A qualitative research exercise with the judiciary was also undertaken to explore views on the existing guidelines and their attitudes to sentencing in this area. In 2015, at the very earliest stage of guideline development, the Council requested feedback from magistrates and judges about how well they felt the current guideline was working in practice and whether they had any observations which they felt the Council should take note of when revising the guideline.

This indicated that whilst sentencers believed that knife offences were amongst the most serious, there were also other types of weapons that could be equally as dangerous, such as the use of acid as a weapon, or other items adapted to cause serious and lasting injury, if used. For that reason, the Council has included, within the highest levels of culpability, ‘highly dangerous weapon’.

The Council has also conducted a data collection exercise in a sample of magistrates’ courts, running from the beginning of November 2017 to the end of March 2018. Sentencers were asked to give details of the sentencing factors they took into account and the final sentence they imposed each time they sentenced an adult for possession of a bladed article or offensive weapon. This will provide data about what sentencing practice at magistrates’ courts looks like for this offence before the guideline comes into effect.

Following the introduction of the definitive guideline, the Council will, as with all guidelines, monitor its impact. A further exercise with magistrates is planned for 2019/20 to collect data. This will help the Council to assess the impact of the guideline, compare sentencing practice before and after the guideline, and to ensure any divergence from its aims is identified and rectified.

Contributor Rosina Cottage QC is a member of the Sentencing Council


SHARP FACTS

Sentencing Council analysis of data from the Ministry of Justice’s Court Proceedings Database

How many people were sentenced in 2016 for knife crime offences?

  • Approximately 8,300 offenders were sentenced for possession offences, and 350 adult offenders were sentenced for threatening offences.
  • Around 3,000 received an immediate custodial sentence (2,800 for possession offences and 230 for threatening offences).
  • 2,800 received a suspended imprisonment sentence (2,700 for possession offences and 90 for threatening offences).
  • 1,800 received a community order (1,800 for possession offences and under 20 for threatening offences).
  • The average custodial sentence length for adult offenders sentenced to immediate custody was 6 months for possession offences (or 8 months for possession offences in prison) and 12 months for threatening offences (post guilty plea).
  • Approximately 1,600 children and young people were sentenced for possession offences, and 70 for threatening offences.
  • 190 youths received a custodial sentence (170 for possession offences and 20 for threatening offences).
  • 1,400 youths received a community sentence* (1,300 for possession offences, and 50 for threatening offences).

*this includes Youth Rehabilitation Orders, and Reparation Orders and Referral Orders

Trends

Bladed articles (possession)

The number of adults sentenced for possession of a bladed article has been steadily trending upwards in recent years (since 2012), although volumes remain lower than those seen earlier in the decade (the number peaked at around 6,300 in 2009, compared with 5,600 sentenced in 2016).

Offensive weapons (possession)

The number of adults sentenced for possession of an offensive weapon declined over the period 2006 to 2014, from 4,500 in 2006 to 2,300 in 2014. Since then volumes have been gradually increasing, to 2,700 in 2016.

Threatening offences

The number of offenders sentenced for threatening offences has been increasing since the offences came into force (for both bladed articles and offensive weapons), but as they were only recently introduced it is too soon to identify any long-term trends (data is only available for 4 years, as offences were introduced in 2012).

Data on bladed article/offensive weapon offences in prisons is limited (data is only available for 2015 onwards), so we cannot yet identify trends for these offences (but the volume in 2016 was low, with around 50 adult offenders sentenced).

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Rosina Cottage QC

Rosina practises in criminal law, is a tenant at the Chambers of Max Hill QC, Red Lion Chambers, appointed Crown Court Recorder in 2012 and to the Sentencing Council in 2016.