STRAIN

Date: 2020-12-09

Eight new guidelines have been published for Firearms offences following an earlier consultation. The guidelines will come into force on 1 January 2021.

What are sentencing guidelines?

These are guidelines that must be followed by sentencers. The guidelines must be followed unless the Judge or Magistrates’ consider it is not in the interests of justice to do so.

The eight new guidelines are for offences of:

1. possession, purchase or acquisition of a prohibited firearm or ammunition
2. possession, purchase or acquisition of a firearm/ammunition/shotgun without a certificate
3. possession of a firearm or ammunition by a person with previous convictions prohibited from possessing a firearm or ammunition
4. carrying a firearm in a public place
5. possession of a firearm with intent to endanger life
6. possession of firearm or imitation firearm with intent to cause fear of violence
7. use of firearm or imitation firearm to resist arrest/possession of firearm or imitation firearm while committing a Schedule 1 offence/carrying firearm or imitation firearm with criminal intent
8. manufacture/sell or transfer/possess for sale or transfer/purchase or acquire for sale or transfer prohibited weapon or ammunition

Why are new ones needed?

At the moment there are no sentencing guidelines for firearms offences in the Crown Court and only one in the magistrates’ court. Although these offences do not occur frequently, they are serious offences, and the guidelines are to ensure consistency of approach.

Issues addressed

Several sentencing issues were raised in the consultation, and some have been addressed in the guidelines. Examples are:

Some respondents requested further guidance on what could amount to exceptional circumstances that could be found not to impose the minimum term. The Sentencing Council said there was some sympathy for those who wanted more specific guidance but “as the test is one of exceptional circumstances, it follows that these cannot be defined.”

The assessment of risk when sentencing for possession of a prohibited weapon has been split into two issues. The first is whether a loaded firearm automatically means a high risk of harm regardless of the circumstances of the case. The second is how judges assess risk based on the events that may or may not take place later.

The culpability of vulnerable defendants was considered where they had been asked to hold a firearm for another. There is the potential for a significant difference in culpability for a person not knowing that it is a firearm they are holding, and one who knows it is a firearm and that it is to be used in criminal activity. The culpability factors were redrafted to include lower culpability where there is no use, or intention to use, the firearm.

Disparity in sentences

The Sentencing Council undertook a review of apparent disparities in sentencing outcomes. The overall findings gave a strong indication that Black, Asian and other ethnicity offenders were dealt with more severely by the courts for firearms offences than White offenders.

Possible reasons for the disparity were considered, such as a difference in previous convictions. The Council also noted that ethnicity was not always noted, and the features of individual cases were not taken into account.

How has this been dealt with?

New sections have been added to the guidance, asking sentencers to be aware of the evidence of disparity. The section explains there have been differences and that there may be many reasons for them and are reminded of the information and guidance in the Equal Treatment Bench Book.

Next steps

The new guidance was published on 9 December 2020, coming into force on 1 January 2021. A further set of guidance is to be consulted on next year in respect of firearm importation offences.

How can we help?

If you would like to discuss any aspect of your case, please contact Bethan Williams on 01758 455 500 or Bethan@strainandco.co.uk

[Image credit: “Hand Gun” by Lala Photography at JoLi Studios Colchester is licensed under CC BY-SA 2.0)

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