Summary
The definitive guideline on Bladed Articles and Offensive Weapons (possession and threats) – children and young people (the “Guideline”) was updated in June 2022 to reflect amendments made to the Sentencing Act 2020 (the “Act”) regarding exceptions to the imposition of a minimum sentence.
Details
For a detailed analysis of the Guideline as originally drafted, please see YJLC’s previous legal update on this sentencing guideline.
Step 5 of the Guideline covers statutory minimum sentencing provisions. The exception to the requirement to impose the mandatory minimum sentence was amended in June 2022 to reflect updates to sections 312 and 315 of the Act.
Sections 312 and 315 of the Act cover the mandatory minimum sentence for offences relating to threatening with offensive weapons or bladed articles (s.312) and repeat offences for possession of bladed articles or offensive weapons or corrosive substances respectively (s.315). The offences covered are set out in subsection (1) of both sections.
The mandatory minimum sentence for young people aged 16 or over but under 18 when convicted of either offence, is a Detention and Training Order of at least 4 months, as set out in sections 312(3)(a) and 315(3)(a) of the Act.
For offences committed before 28 June 2022, the exception to the imposition of a minimum sentence is where the court is of the opinion that there are particular circumstances which relate to the offence, to the previous offence or to the offender, and would make it unjust to do so in all the circumstances (see sections 312(2) and 315(2) of the Act).
A new subsection (2A) was added to both sections 312 and 315 of the Act and applies where the offence was committed on or after 28 June 2022. For offences of threatening with bladed articles or offensive weapons (s. 312 offences) and for repeat possession offences (s. 315 offences) the court must impose the minimum sentence unless it is of the opinion that there are exceptional circumstances which relate to the offence(s) or to the offender and justify not doing so.
The Guideline gives further guidance on what the court should consider when assessing whether there are “exceptional circumstances” that would justify not imposing the minimum sentence and states that circumstances are exceptional if the imposition of the minimum term would result in an arbitrary and disproportionate sentence for that young person.
Importantly, Step 4 of the Guideline allows for a reduction in sentence for an early guilty plea and, where appropriate, full credit can be awarded. This is more lenient than the position for adult offenders whose sentence cannot fall below 80% of the minimum (see s. 73(5) Sentencing Act 2020). This means that children who plead guilty to these offences may have their sentences reduced from the mandatory minimum custodial sentence to a community sentence if they enter a sufficiently early plea.
Commentary
These changes reflect relatively minimal tweaks to the wording of the exceptions which grant courts the discretion to waive the mandatory minimum sentence in these weapon offences. However, it does appear that this is a step towards limiting the court’s discretion to pass non-custodial sentences, given the introduction of the word “exceptional” in relation to offences committed on or after 28 June 2022.
Practitioners are reminded that 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 definitive guideline also covers the provisions for early guilty pleas, which are particularly important where mandatory minimum sentences are concerned, at section 5.
Crucially, the Overarching Principles state that a custodial sentence should always be a measure of last resort for children and young people (para 1.3) and may only be imposed when the offence is so serious that no other sanction is appropriate.
Written by
Louise Ferdjani and Darius Latham-Koenig, Paul Hastings (Europe) LLP