Sentencing Council Bladed Articles and Offensive Weapons: Definitive Guideline, Sentencing Council, 2018
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.
Details
Following consultation the Sentencing Council has published this new definitive guideline. The new guideline comes in to force on 1 June 2018. The guideline applies to the following offences:
- Possession of an offensive weapon in a public place, Prevention of Crime Act 1953 (section 1(1))
- Possession of an article with blade/point in a public place, Criminal Justice Act 1988 (section 139(1))
- Possession of an offensive weapon on school premises, Criminal Justice Act 1988 (section 139A(2))
- Possession of an article with blade/point on school premises, Criminal Justice Act 1988 (section 139A(1))
- Unauthorised possession in prison of a knife or offensive weapon, Prison Act 1952 (section 40CA)
- Threatening with an offensive weapon in a public place, Prevention of Crime Act 1953 (section 1A)
- Threatening with an article with blade/point in a public place, Criminal Justice Act 1988 (section 139AA(1))
- Threatening with an article with blade/point or offensive, weapon on school premises, Criminal Justice Act 1988 (section 139AA(1))
An offensive weapon includes corrosive substances (such as acid). Whether it is a highly dangerous weapon will be fact sensitive and must be substantially above and beyond the normal definition of an offensive weapon. (p.16)
The separate guideline for sentencing children and young people (p15-21) includes the following principles:
- ‘The fact that a sentence threshold is crossed does not necessarily mean that that sentence should be imposed.’ (p.15)
- A custodial sentence or a Youth Rehabilitation Order (YRO) with Intensive Supervision and Surveillance (ISS) or Intensive Fostering (IF) may be justified for possession of a bladed article or highly dangerous weapon whether produced or not. (p.15)
- Participating in offence due to bullying or peer pressure is a mitigating factor. (p.16)
- An unstable upbringing is listed as an example of personal mitigation. (p.17)
- Committing an offence as part of a group or gang is an aggravating feature. (p.16)
- Filming the offence with the intent of causing additional distress to the victim or circulating details/images on social media is an aggravating factor. (p.16)
Mandatory minimum sentences
Threatening offences
When a child is 16 or over at the time of committing a threatening offence, the court must impose a sentence of at least 4 months Detention and Training Order unless the court is of the opinion that there are particular circumstances which make it unjust to do so.1
Possession offences
When a child is 16 or over at the time of committing a second or further relevant offence, the court must impose a sentence of at least 4 months Detention and Training Order unless the court is of the opinion that there are particular circumstances relating to the offence, the previous offence or the young person which make it unjust to do so in all the circumstances.2
- In cases when the mandatory referral order conditions apply the YOT should be encouraged to convene a pre-sentence panel meeting to see whether an intensive contract can be agreed. The court can then consider the draft contract and decide whether it is sufficient to move below custody on that occasion. (p.20)
- The court should take account of any reduction in sentence for a guilty plea. 3. This can reduce a custodial sentence to a community sentence. (p.17)
- Consideration should be given to the seriousness of the previous offence(s) and the period of time that has elapsed between offending. (p.19) Although the age of the child when they committed the first offence is irrelevant. (p.18)
- In certain cases the concerns about the welfare of the child or young person may be so significant that the court considers it unjust to impose the statutory minimum sentence. (p.19)
Custodial sentences
- Where a custodial sentence is unavoidable the length of custody imposed must be the shortest commensurate with the seriousness of the offence. The court may want to consider the equivalent adult guideline in order to determine the appropriate length of the sentence. If considering the adult guideline, the court may feel it appropriate to apply a sentence broadly within the region of half to two thirds of the appropriate adult sentence for those aged 15 – 17 and allow a greater reduction for those aged under 15.
Commentary
The law in relation to bladed articles, offensive weapons and mandatory minimum sentences is fairly complicated so this guideline is welcomed to assist lawyers and courts in approaching sentencing children and young people. Practitioners are reminded:
- This guideline should be read alongside the Overarching Principles – Sentencing Children and Young People definitive guideline which provides comprehensive guidance on the sentencing principles and welfare considerations that the court should have in mind when sentencing children and young people.
- The Overarching Principles state that custody should only be used as a last resort (para 1.3). This is a factor the court may reasonably take into consideration when considering whether the mandatory minimum sentence would be ‘unjust’.
- Legal Aid, Sentencing and Punishment of Offenders Act 2012 s.142 (back)
- 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 1988 (back)
- Guidance on guilty pleas for children and young people is dealt with on page17-21of the Overarching Principles (back)