Angelina Nicolaou reviews the new Definitive Sentencing Guidelines for Possession of Offensive Weapons.

8 Jun 2018

Many members of the public were horrified to see video footage emerge of a road traffic incident which resulted in an individual pulling out a ‘zombie knife’ and using it to manically attack a car window causing the driver to flee his vehicle1. This incident occurred on 30 May 2018, on a busy high street and in broad daylight, so naturally sparked a debate about the growing concern of the use of knives in the capital and beyond.

Coincidentally, on 1 June 2018, the Sentencing Council’s new guidelines on possession of offensive weapons (published in March of this year) came into force. From 1 June 2018 onwards, any individual sentenced to such offences will be dealt with under these guidelines, irrespective of the date of the commission of the offence.

The new guidelines were brought about as a result of prevalence concerns and in a direct effort to ensure that there was a comprehensive approach to sentencing in cases relating to offensive weapons. It is incredibly clear: in terms of assessing offence seriousness for adults, it provides an exclusive set of factors to be considered relating to culpability and harm. This will ensure a stricter but more consistent approach to sentencing these types of cases. The guideline also provides sentencing for children and young people, and it is envisaged that it will complement the definitive guide on children and young people, and the principles contained therein.

Knife possession

There is a clear steer from the new sentencing guidelines that the possession of a bladed article is to be taken extremely seriously. Under the previous guidelines for possession of an offensive weapon/bladed article2, the starting point and offence range was first determined by reference to the nature of activity (including whether or not the weapon was used to threaten or cause fear). In cases where a weapon was not used to threaten or cause fear, the starting point was a high level community order.

The position has now changed. The fact that the offensive weapon is a knife alone places an individual squarely in the territory of ‘Culpability A’, along with ‘highly dangerous weapons’. This is the case even if an individual can be shown to not have been threatening to use it. The starting point for ‘Culpability A’ cases of possession is 6 months custody. The sentencing court does not have the discretion to consider factors which are not outlined in the guidance when assessing culpability and harm and therefore it is clear that the approach to sentencing will be rigid in this regard. Whereas the old

guidelines required a consideration of whether or not the weapon was particularly dangerous, this new guideline specifically singles out bladed articles.

The Sentencing Council have plainly stated that their intentions are to respond to Parliament’s concerns regarding the prevalence of knife crime. Sentencing Council member Rosina Cottage stated:

“Too many people in our society are carrying knives. If someone has a knife on them, it only takes a moment of anger or drunkenness for it to be taken out and for others to be injured or killed. These new guidelines give courts comprehensive guidance to ensure that sentences reflect the seriousness of offending”.3

The guidelines do suggest that non-custodial sentences would be appropriate in instances where possession of a weapon falls just short of a reasonable excuse (placing an individual in the bracket of Culpability D). In that case, even if an individual’s good reason may not amount to a successful defence in law, it could be extremely persuasive mitigation, and at the very least seek to limit the degree of culpability. In such situations, a well drafted and accepted basis of plea could make a significant difference to sentence.

Highly Dangerous Weapons

Along with knives in the ‘Culpability A’ bracket are ‘highly dangerous weapons’. During the consultation stages, the Sentencing Council were asked to provide further guidance as to what qualifies as a ‘highly dangerous weapon’ for the purposes of the guidelines. The Guidelines now states as follows:

“[A]n offensive weapon is defined in legislation as ‘any article made or adapted for use for causing injury, or is intended by the person having it with him for such use’. A highly dangerous weapon, is, therefore, a weapon, including a corrosive substance (such as acid), whose dangerous nature must be substantially above and beyond this. The court must determine whether the weapon is highly dangerous on the facts and circumstances of the case”.

It is therefore clear that acid will qualify as a highly dangerous weapon, and it remains to be seen what other types of weapons may be classified to be of the same nature and seriousness. The guidelines do not seek to limit the ‘Culpability A’ category to just blades and acid, and therefore sentencing courts will approach these types of assessments on a case by case basis.

The meaning of ‘unjust in all the circumstances’

As before, the guidelines refer to the statutory minimum terms which are imposed in relation to second or further relevant offences. In cases where a person is convicted of possession of an offensive weapon in public or on school premises, the court must impose a sentence of at least 6 months’ imprisonment where this is a second or further relevant offence, unless the court is of the opinion that there are particular circumstances relating to the offence, the previous offence or the offender which make is unjust to do so in all the circumstances. When it is unjust the court must impose a shorter custodial sentence or an alternative sentence.

The new guidelines provide some clarity on what is to be considered when determining whether it would be ‘unjust in all the circumstances’ to impose a mandatory minimum sentence. This assessment is done by reference to both circumstances of the offence, and the offender.

Importantly, the sentencing court will also need to take a view on the seriousness of the first (or previous) offence which the individual was convicted of. If the first offence was of a far less serious nature, resulting in a non-custodial sentence, it may be an important factor which persuades the court that a mandatory minimum sentence would be unjust. Also relevant is whether or not a significant period of time has elapsed between the offences.

In terms of the circumstances of the offender, the court should consider:

i. Any strong personal mitigation

ii. Where there is a realistic prospect of rehabilitation

iii. Whether custody will result in a significant impact on others

The new guidelines will see the imposition of much harsher sentences for those who are before the court more than once in relation to offences of this nature. There is little scope to row back from that when the climate is one which is clearly looking to crackdown on this type of crime in particular. However there may be features which are unique to a particular offender, including situations regarding their dependants which may serve as persuasive mitigation.

To view the new sentencing guidelines on possession of offensive weapons, see: https://www.sentencingcouncil.org.uk/wp-content/uploads/Bladed-Article-Definitive-guideline_WEB-1.pdf