Sentencing Guideline: Offensive Weapons and Bladed Articles
On 1 March 2018 the Sentencing Council published a new definitive guideline for sentencing in cases involving offensive weapons and/or bladed articles. The guidelines apply to all offenders who are sentenced on or after 1 June 2018 regardless of the date of the offence. The new guideline follows a consultation exercise begun in October 2016. While there was some existing guidance for adult offenders being sentenced in the Magistrates’ court, there was no such guidance for adult offenders being sentenced in the Crown Court, or for children or young people. The structure of the new adult possession guideline and the fact that it incorporates the key principles set out in case law (R v Povey  EWCA Crim 1261; R v Monteiro & Others  EWCA Crim 747) may lead to an increase in the sentences received by some offenders for carrying bladed articles or other ‘highly dangerous’ weapons.
The guideline follows a by now familiar scheme where the sentencing tribunal has to decide both culpability and harm and divides into three guidelines, those for possession, those for threats issued and those for children and young persons.
The most culpable offences (those which fall into Culpability A) will be those where the weapon concerned is either a bladed article or a highly dangerous weapon, or where the offence is motivated by hostility based on any of the following characteristics or presumed characteristics of the victim – religion, race, disability, sexual orientation or transgender identity.
The next most culpable (B) are those where the weapon is neither a bladed article nor highly dangerous but has been used to threaten or to cause fear, thereafter (C) the absence of use to threaten or cause fear renders the culpability less grave and, least seriously, (D) are those cases where possession of the weapon falls just short of reasonable excuse.
The phrase ‘highly dangerous weapon’ is new. It will be for the Court to determine whether any weapon is highly dangerous on the facts and circumstances of the case. Section 1(4) of the Prevention of Crime Act 1953 defines an offensive weapon as “any article made or adapted for use to cause injury to the person or intended by the person having it with him for such use”. There needs, therefore, to be an added element of dangerousness before the weapon in question can be elevated to a ‘highly dangerous’ weapon. The Guideline defines it as a weapon, including a corrosive substance (such as acid), whose dangerous nature must be substantially above and beyond the definition in the Prevention of Crime Act.
There are two categories of harm.
The higher category is reserved for offences committed at a schools or other places where vulnerable people are likely to be present, offences committed in prison, offences committed in circumstances where there is a risk of serious disorder or where serious alarm or distress has been caused. The lower category is for all other cases.
The most serious cases have a starting point of 18 months imprisonment with a range of up to 2 ½ years and the starting point for all cases involving knives or highly dangerous weapons is imprisonment. Among the aggravating factors listed is ‘offence was committed as part of a group or gang’ – there is plainly a steer to treat those cases as more serious, given the prevalence of knife crime.
Culpability and Harm are to be assessed as for possession offences. It is notable that all of the starting points, however low the culpability and however small the harm, are imprisonment. The starting point for threatening with a knife or highly dangerous weapon in cases where there is a risk of serious disorder, or at a school is 2 years imprisonment. The range in those more serious cases is 18 months up to three years. Group or gang offending again aggravates the sentence, as does targeting a victim due to vulnerability.
Children and Young Persons
This guideline needs to be read alongside the Overarching Principles – Sentencing Children and Young People definitive guideline which provides comprehensive guidance on the sentencing principles and welfare considerations that the court should have in mind when sentencing children and young people.
There are 6 steps to the guideline sentencing process:
Step 1 Determine Seriousness
The Guideline gives examples of type of culpability and harm factors that may indicate that a particular threshold of sentence has been crossed. It suggests that fleeting incidents not causing more than minimal distress, possession of weapons just falling short of reasonable excuse and no or minimal risk of the weapon being used to threaten or cause harm may be met with a non-custodial disposal. However, a custodial sentence or youth rehabilitation order with intensive supervision and surveillance or fostering may be justified in cases where bladed articles or highly dangerous weapons feature, where the offence is motivated by hostility to identified groups, where there was a prolonged incident or where the offence was committed at a school.
Step 2 Aggravating / Mitigating features
The guideline sets out similar aggravating factors to those for adults but includes “deliberate humiliation of victim, including but not limited to filming of the offence, deliberately committing the offence before a group of peers with the intent of causing additional distress or circulating details/photos/videos of the offence on social media or within peer groups”. Among the mitigating factors is the participation in an offence due to peer pressure, bullying, coercion or manipulation.
Step 3 Personal mitigating factors
The guideline identifies that particular immaturity, learning disability and an unstable upbringing will all serve to mitigate any sentence.
Step 4 Reduction for guilty plea
Step 5 Consideration of minimum sentencing for those aged 16 or over on the date of the offence.
Step 6 Review.
The review must ensure that the sentence is appropriate and will include an assessment of the likelihood of reoffending and the risk of causing serious harm – usually with the assistance of a report from the youth offending team.
Those representing defendants charged with the possession of an offensive weapon (or bladed article) in a public place or on school premises will know, but the Guideline makes it clear, that if the defendant has a previous conviction for one of those offences or for threatening with an offensive weapon (or bladed article) in a public place or on school premises the Court must impose a minimum term of 6 months imprisonment unless it is unjust to do so. In the case of young offenders aged 16 or 17 the minimum term is a 4 month detention and training order. There is no minimum term for those under 16.
This has been so since the coming into force of Section 28 of and Schedule 5 to the Criminal Justice and Courts Act 2015 in July 2015. In considering whether it would be unjust to impose the minimum term the guideline makes it clear that the Court should consider the impact of custody on others, any strong personal mitigation and whether there is a realistic prospect of rehabilitation. When considering young offenders the Guideline makes it clear that, if the seriousness of the combined offences is such that it falls far below the custody threshold, or where there has been a significant period of time between the offences, the Court may consider it unjust to impose the statutory minimum sentence, and the Court must have regard to the young person’s welfare, considering mental health problems, brain injuries, traumatic life experience, speech and language difficulties, vulnerability to self harm and the effect on young people of experiences of loss, neglect and abuse. If there are significant such concerns the Court ought not to impose the statutory minimum sentence.
You can access the new Guideline here.