Draft Guidelines on Sale of Knives to Persons Under the Age of Eighteen
On 1st June 2022, the Sentencing Council (“the Council”) published two draft sentencing guidelines for consultation – one for organisations, the other for individuals – for sentencing those convicted of selling knives (and razor blades, axes and other bladed articles) to persons under the age of eighteen, contrary to s.141A of the Criminal Justice Act 1988.
The consultation has been much-awaited by the Trading Standards community and follows a period of lobbying by various stakeholders, including National Trading Standards, the Association of Chief Trading Standards Officers and the Mayor of London Office for Policing and Crime, for the introduction of a guideline, in an effort to ensure greater clarity and consistency in a sentencing process all too often afflicted by a dramatic variance of outcome. Data gathered for the purposes of a submission to the Council in 2019 illustrated how very large companies were receiving similar fines to much smaller businesses, with the occasional outlier seeing significantly greater fines despite there being no discernible difference in the relevant facts. The need for a guideline was apparent.
The draft guidelines follow a now familiar stepped process from determining the offence category to giving reasons for the sentence passed.
Identifying the defendant’s level of culpability appears to involve an assessment of how far short an organisation would fall in establishing the statutory defence of due diligence. The more precautions, the lower the culpability. Large organisations that fail to put in place standard measures to prevent the sale of knives etc. to persons under eighteen can expect to receive substantial fines, with a range for the highest level of culpability between £200,000 and £1,000,000. Even with low culpability the proposed range is £12,000 to £100,000 which represents, with the single notable exception of the B&M Retail Ltd prosecution in 2018, an appreciable uplift on the level of fines that have been imposed in the recent past.
The draft guidelines do not require an assessment of harm, specifying that the same level of harm is risked in all cases. Whilst this might be a nod to the powerful public policy considerations underpinning the motivation for age restricting the sale of knives, and might also be in recognition of the vast number of prosecutions arising out of test purchase operations, it appears to overlook the possibility of actual harm being caused in direct consequence of the offence, as is known to have occurred, albeit rarely.
It is arguable that not grading harm (risked or actual) also fails to take into account the increased minimum terms for certain bladed article offences.
However, if adopted, the draft guidelines should, at the very least, lead to the eradication of unwelcome inconsistency, enabling sentencing tribunals to focus on the matters they should have in mind, and defendants to know with greater certainty the level of fine they face. The Council expresses the view that it does not expect sentences to change overall for most offenders, but like the Guidelines before it, the recent publication confirms that corporate transgressors face ever-stiffening penalties.