Mon, 01 Feb 2021
Criminal practitioners will be aware of the recent introduction of the Sentencing Council’s guidelines regarding Firearms Offences which took effect from 1st January 2021. Whilst R v Avis has provided a clear direction and guidance for a number of years, the new guidelines provide a clear, consistent approach to addressing the sentencing guidelines across the country. Whilst previously the only guidelines available were available in the Magistrates’ Court for carrying a firearm in a public place, the codification of case law, analysis of transcripts of judicial sentencing remarks, and sentencing data, along with recent publications.
The new guidelines cover the eight offences under the Firearms Act 1968:
- Possession, purchase or acquisition of a prohibited weapon or ammunition s5(1) and 5(1A);
- Possession, purchase or acquisition of a firearm/ammunition/shotgun without a certificate s1(1) and 2(1);
- Possession of a firearm or ammunition by person with previous convictions prohibited from possessing a firearm or ammunition s21(4) and 21(5)
- Carrying a firearm in a public place s19
- Possession of firearm with intent to endanger life s16
- Possession of firearm or imitation firearm with intent to cause fear of violence s16A
- 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 s17(1), 17(2) and s18
- Manufacture/sell or transfer/possess for sale or transfer/purchase or acquire for sale or transfer prohibited weapon or ammunition s5(2A)
One of the greatest findings of the new sentencing guidelines, follows on from the findings of the independent review conducted by Rt. Hon. David Lammy, on behalf of the Ministry of Justice: The Lammy Review on gov.uk
Within the report, a distinct disparity in sentencing was highlighted in relation to individuals of the BAME community. The report identified key aspects including: ‘that arrest rates were generally higher across all ethnic groups, in comparison to the white group – twice as high for BAME women, and were three times higher for Black men’ Though it was ascertained that there was no disproportionate effect regarding the charging decision, or conviction rates, during the court process, individuals from the BAME community were more likely to plead both not guilty, and also to receive custodial sentences.
As a consequence of this, during the consultation phase consideration was given to an independent analysis of the sentences defendants received across the court system, and how this correlated with their background, and ethnicity.
Significant disparities have given rise to a clearer approach being provided for the sentencer’s attention and, although those passing sentence are currently aware of ensuring that there is a transparent approach to the reason for sentences being received, the new sentencing guidelines once again highlight the need to have such issues in mind.
 Ministry of Justice, Black, Asian and Minority Ethnic disproportionality in the Criminal Justice System in England and Wales, pg 12 (2016) – Link
Mandatory Minimum Sentences
Those using the new guidelines will be aware of the requirement to impose mandatory minimum sentences where the offence is one of Section 5(1)(a), (ab), (aba), (ac), (ad), (ae), (af), (c), section 5(1A)(a)).
In accordance with s311 of the Sentencing Code that ‘a court must impose a sentence of the required minimum term (of at least 5 years), unless the court is of the opinion that there are exceptional circumstances, which relate to the offence, and which would justify not doing so. In considering the guidelines, the court must consider:
‘whether the circumstances are exceptional that would justify not imposing the statutory minimum sentence, the court must have regard to the particular circumstances of the offence, and the particular circumstances of the offender, either of which may give rise to exceptional circumstances.
The court should look at all of the circumstances of the case taken together. A single, striking factor may amount to exceptional circumstances, or it may be the collective impact of all of the relevant circumstances.
The mere presence of one or more of the following should not in itself be regarded as exceptional:
- One or more lower culpability factors
- The type of weapon or ammunition falling under type 2 or 3 (in the Sentencing Table)
- One or more mitigating factors
- A plea of guilty
Where the court identifies that exceptional circumstances arise in this case, then the court must impose either a shorter custodial sentence than the statutory minimum provides or an alternative sentence.’
It is important to make note of the age of the defendant at the time of the commissioning of the offence:
a) Where an individual is under the age of 18 at the commission of the offence then the mandatory period of 5 years would not apply.
b) Where the defendant is aged 16 to 17 then the offence carries a mandatory minimum term of 3 years.
c) Where the defendant is under the age of 16, then there is no mandatory minimum term of imprisonment to be imposed.
d) Where the matter relates to a charge of conspiracy relating to the above offences, then there is no mandatory minimum term of imprisonment to be imposed.