Section 28 and Schedule 5 Criminal Justice and Courts Act 2015 amending sections 1 & 2 Prevention of Crime Act 1953 and section 139 Criminal Justice Act 19881
New mandatory minimum custodial sentence for 16 and 17 year olds convicted of a second knife crime offence committed after 17 July 2015.
Details
16 and 17 year olds will now face a minimum four month Detention and Training Order for their second offence of possession of a knife or offensive weapon (for adults the mandatory minimum sentence is six months). Courts will retain discretion not to impose the mandatory sentences. In practice, 16 and 17 year olds will still receive non-custodial sentences.
A mandatory minimum custodial sentence applies on conviction of a second (or subsequent) offence committed after 17 July 2015.2 Also note: a conviction in Scotland, Northern Ireland or another member state or a service offence for an equivalent offence counts as a ‘first strike’.3
The court’s discretion
The legislation gives courts a discretion not to impose the sentence where there are particular circumstances relating to the offender or the offence(s) which would make it ‘unjust’.4 Factors that may make it ‘unjust’ to impose the mandatory minimum sentence include: good progress made in relation to the previous conviction, length of time since earlier conviction, delay in bringing proceedings, sentence would be manifestly excessive or inappropriate, overall totality of the sentence.
The legislation specifically reminds courts of their duty under section 44 of the Children and Young Persons Act 1933 to have regard to the welfare of the child.5 This means taking into consideration how the mandatory custodial sentence will affect the child’s wellbeing, housing, education and training.
The courts may still reduce the sentence length for an early guilty plea or impose other sentences including a hospital order.6
Any reduction in a four month Detention and Training Order (DTO) will result in 16 and 17 year olds receiving a community sentence because DTOs must be fixed lengths and the shortest is four months.
The Ministry of Justice has issued a circular here.
The Standing Committee for Youth Justice have issued a Briefing for YOTs on Children and Custodial Sentences for a Second Knife Offence (13 October 2015).
Note: The Sentencing Council has published a new definitive guideline on Bladed Articles and Offensive Weapons, it comes in to force on 1 June 2018. The document includes a separate guideline for sentencing children and young people.
Commentary
This effectively creates a ‘two strikes’ rule for knife crime. For a second knife crime offence the starting point for 16 and 17 year olds will be a four month Detention and Training Order (DTO). In practice, however, courts will be able to impose non-custodial (community) sentences for 16 and 17 year olds where they plead guilty at the earliest opportunity or the courts have information about their personal circumstances or the circumstances of the offences that justify reducing the sentence.
- The Criminal Justice and Courts Act 2015 (Commencement No. 2) Order 2015 (back)
- For the full list of knife crime offences see section 1ZA 1(a) Prevention of Crime Act 1953, section 139 and section 139A Criminal Justice Act 1988. (back)
- Section 1ZA 1(b)-(e) Prevention of Crime Act 1953 (back)
- Section 2(2B) Prevention of Crime Act 1953 (back)
- Section 2(2D) Prevention of Crime Act 1953 (back)
- Schedule 5 Criminal Justice and Courts Act 2015 (back)