The Sentencing Council has published eight new guidelines to be used by the Courts in England and Wales when sentencing firearms offences under the Firearms Act 1968.
The eight new guidelines will take effect from 1 January 2021 and cover the offences below under the Firearms Act 1968:
- Possession, purchase or acquisition of a prohibited weapon or ammunition
- Possession, purchase or acquisition of a firearm/ammunition/shotgun without a certificate
- Possession of a firearm or ammunition by person with previous convictions prohibited from possessing a firearm or ammunition
- Carrying a firearm in a public place
- Possession of firearm with intent to endanger life
- Possession of firearm or imitation firearm with intent to cause fear of violence
- 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
- Manufacture/sell or transfer/possess for sale or transfer/purchase or acquire for sale or transfer prohibited weapon or ammunition
This is a complex area with 35 statutes and secondary legislation governing the use of firearms. Prior to this update, there were no sentencing guidelines for firearms offences in the Crown Court and only one guideline for the Magistrates’ Courts when sentencing in respect of carrying a firearm in a public place (section 19 Firearms Act 1958). The lack of specific guidelines has led to an inconsistent approach to sentencing these very serious offences some of which include maximum life sentences and minimum tariffs of 5 years.
Of particular relevance for young people facing these offences, the Sentencing Council identified particular inconsistency in sentencing outcomes based on the ethnicity of the offender with White offenders receiving less severe sentences than Black, Asian and Other ethnicity offenders for firearms offences. We know that this racial disparity applies to children and young people who come before the Courts (see YJLC’s update earlier this month on the Sentencing Council’s Review of their Definitive Guideline for Sentencing Children and Young People). The new guidelines ask sentencers to consider this finding and refers them to the section of the Equal Treatment Bench Book which considers BAME individuals and the criminal justice system. This section of the Bench Book highlights considerations such as the importance of Pre-Sentence Reports and the fact that BAME children are less likely than white children to be identified on reception at prison as having health, educational or mental health problems.
The Sentencing Council has indicated it will continue to investigate apparent disparity in sentencing outcomes across all offences.
Sentencing children and young people is often much more complex than sentencing adults and firearms sentencing has been further complicated by a lack of guidelines to date.
The approach to sentencing children and young people generally is set out in R v D  10 WLUK 433 (see our legal update on this case here) which confirmed that the courts must:
- First identify the adult starting point (including adjustment for aggravating and mitigating factors);
- Then apply any credit for guilty plea;
- Lastly, apply appropriate reduction for young age and maturity
Notwithstanding R v D above, the recent case of R v RB, JS and HG  EWCA Crim 643 held that where a custodial sentence was unavoidable a reduction for youth and maturity should be applied before any credit for guilty plea. In both cases, the significant point is that the adult starting point be established first before moving on to other factors.
When sentencing young people for firearms offences the Court will also have to consider the principle set out in paragraph 6.46 of the Guideline on Sentencing Children and Young People that, where the sentencing guidelines for adults are considered in relation to children and young people, a sentence ‘broadly within a region of a half to two thirds of the adult sentence’ is appropriate for those aged 15-17 and a greater reduction where aged under 15.
Institutional racism within the criminal justice system will be familiar to all lawyers representing children and young people; reference in the new firearms guidelines to the inequality in sentencing based on ethnicity is welcome and overdue. In the guideline this reference is made in respect of Step 2 – Starting point and category range and so it is at this stage that the Court must consider this factor. Firearms offences are very serious and carry lengthy sentences and so the impact of any element of inequality in sentencing these types of offences can mean significant increases to a young person’s sentence.
Written by Áine Kervick, Kingsley Napley LLP