Draft Sentencing Guidelines on bladed articles and offensive weapons Contents

Conclusions and recommendations

Draft adult guidelines on bladed articles and offensive weapons

1.We appreciate the difficulties that the Council may face in predicting the impact of its sentencing guidelines without conducting the comprehensive and sophisticated modelling exercises that would be required to do this more accurately. However, the prospect of a substantial and not fully quantified increase in the number of custodial sentences causes us concern, especially if the guidelines are introduced in their present form without a better understanding of their impact, together with a commitment by the Ministry of Justice to provide sufficient resources to meet any additional demand on prison and probation services. We recommend that the Council ask the Ministry of Justice to consider how any predicted increase in the prison population might be accommodated. (Paragraph 13)

2.Analysis of the impact of legislation on sentencing practice has the potential to provide a crucial source of evidence for public and parliamentary scrutiny of sentencing policy. We recommend that the Sentencing Council’s future reports consider the effect of a wider range of sentencing factors—including the impact of legislation on the practice of the courts. We further recommend that the Council’s sentencing factors report for 2016/17 consider the effect of the mandatory minimum custodial sentences for offences involving threats with bladed articles or offensive weapons and for second or subsequent convictions for possession offences. (Paragraph 15)

3.We fully agree that possession of a knife should remain an offence of high culpability. We recommend that the Council give further consideration to the section of the possession guideline concerned with determining the offence culpability category, taking the observations from respondents above into account. (Paragraph 18)

4.We note that some respondents to the Council’s consultation suggested that the phrase ‘other place where vulnerable people may be present’ is lacking in precision and should be further clarified. Rather than attempting to produce an exhaustive list of locations, the guidelines should assist sentencers by offering some examples by way of illustration. (Paragraph 20)

5.We consider that ‘offence committed at a large public gathering’ should be included as a factor in the new guideline, to deal with gatherings such as festivals and public demonstrations where possession of bladed articles or offensive weapons creates a particularly serious risk. We recommend an amendment to both adult guidelines, so that the Category 1 harm factor referring to ‘offences committed in prison or in other premises where there may be a risk of serious disorder’ continues: ‘or large public gatherings.’ (Paragraph 21)

6.As well as reducing offending, we note that other purposes of sentencing will be relevant, including punishment, and that sentences can signify exceptional public concern about or disapproval of particular behaviour. For this reason, we recommend that the Sentencing Council consider whether the proposed category ranges for the offences of possession and threatening with bladed articles/offensive weapons, with a maximum of 2 years 6 months and 3 years custody respectively, should approximate more closely to the statutory maximum penalty of 4 years imprisonment. (Paragraph 24)

7.We accept that the lists of aggravating and mitigating factors are not intended to be exhaustive, but we are surprised that ‘remorse’ has not been expressly mentioned. We also note that respondents’ comments suggest more might be done to avoid any possibility of double-counting and to clarify the descriptions of particular factors. We agree with these comments, and we specifically recommend that ‘remorse’ be added to the list of mitigating factors. (Paragraph 26)

8.We also note that ‘planning’ is included in the proposed list of aggravating factors, while ‘no planning’ is a factor that would contribute to mitigation. In the context of possession offences, we are unclear how a mitigating factor of ‘no planning’ would apply, and question its relevance. (Paragraph 27)

Draft youth guideline on bladed articles and offensive weapons

9.We accept that the regime of mandatory minimum sentences for 16 and 17 year olds in relation to certain offences sits uneasily with the Council’s individualised approach to the sentencing of youths, as set out in its overarching principles. This makes it all the more important to remind sentencers of their legal obligations towards children who offend, and to emphasise the primacy of the overarching principles. (Paragraph 33)

10.We recommend that the draft youth guideline on bladed articles and offensive weapons be amended to remind sentencers that they must apply the test: ‘unjust to do so in all the circumstances’ by reference to general statutory provisions on the sentencing of children, particularly s44 of the Children and Young Persons Act 1933. (Paragraph 34)

11.We are concerned at the risk of inconsistency within the illustrative list of culpability and harm factors creating a risk of unintended sentence inflation, in particular for simple possession of a bladed article. We recommend that the Council reconsider its approach to listing these factors, as well as inserting within this section of the guideline an express cross-reference to the overarching principles for sentencing youths. (Paragraph 36)

12.We also recommend that sentencers be expressly reminded that, before imposing a custodial sentence, they must be satisfied that the child cannot be dealt with by a Youth Rehabilitation Order with Intensive Supervision and Surveillance or with Fostering. (Paragraph 37)

13.We believe that several aspects of the aggravating and mitigating factors for the youth guideline may be confusing for sentencers, especially when read alongside the overarching guideline. We recommend that the Council adopt a more consistent approach to the relationship between aggravating and mitigating factors in the two guidelines. We also recommend that the deliberate humiliation of victims should appear as an aggravating factor in both adult and youth guidelines in the interests of consistency and fairness. (Paragraph 38)

14.We recommend that the aggravating factor ‘offender in a group or gang’ be reworded so that it is limited to situations where the offence was committed by a group or gang and where, in addition, the offender was operating within the group or gang and had an active role in committing the offence. (Paragraph 40)

6 March 2017