BLOG: Sentencing Guidelines for Firearms Offences in the Magistrates’ Court and Crown Court – out with the old and in with the new?

In October 2019 the Sentencing Council recognised the complex and confusing state of sentencing in firearms cases by launching a consultation on the introduction of sentencing guidelines. Following a lengthy consultation period eight new guidelines were published in December 2020. They cover a number of offences within the Firearms Act 1968 and are due to come into force on the 1st January 2021. Joe Tarbert assesses whether the new guidelines are simply clarificatory or whether they add something new to sentencing firearms offences.

R v Avis and The Established Approach

The Firearms Act 1968 consolidated a number of previous pieces of firearms legislation and criminalised a broad range of firearms related conduct. Whilst the legislation addressed mode of trial and maximum sentence for each offence, it gave no indication as to how a sentence should be reached in a particular case.

The Court of Appeal sought to provide some clarity in the case of Avis [1998] 1 Cr App R 420. After emphasising the seriousness of firearms offences, including those involving imitation firearms, Lord Bingham CJ set out four questions which it would be appropriate for the sentencing court to ask itself when carrying out the sentencing exercise for firearms offences[1]:

1. What sort of weapon is involved?
2. What (if any) use has been made of the firearm?
3. With what intention (if any) did the defendant possess or use the firearm?
4. What is the defendant’s record?

The Court of Appeal rejected the need to impose a “rigid, formulaic approach to levels of sentence” and instead limited themselves to indicating in what circumstances the maximum custodial sentence may be appropriate [2]:

Where there are breaches of sections 4, 5, 16, 16A, 17(1) and (2), 18(1), 19 or 21 , the custodial term is likely to be of considerable length, and where the four questions suggested above yield answers adverse to the offender, terms at or approaching the maximum may in a contested case be appropriate.

Avis has remained the leading authority for sentencing in firearms offences. Subsequent Court of Appeal decisions have sought to build upon its foundations and provide further guidance and clarification. In R v. Sheen [2011] EWCA Crim 2461 the Court of Appeal suggested two further questions:

5. Where was the firearm (or were the firearms) discharged, and who and how many were exposed to danger by its or their use?
6. Was any injury or damage caused by the discharge of the firearm or firearms, and if so how serious was it?

In Wilkinson [2009] EWCA Crim 1925 the Court of Appeal expanded upon the guidance in Avis to address the wholesale importation and distribution of firearms, making clear that such offences should attract a lengthy custodial sentence and in some cases an indeterminate sentence.

Mandatory Minimum Sentences

Sentencing in firearms cases was further complicated by the introduction of mandatory minimum sentences. The scope of the mandatory minimum sentence for firearms offences has been extended several times since its introduction in the Criminal Justice Act 2003 and is now helpfully consolidated in section 311 of, and schedule 20 to, the Sentencing Act 2020.

Section 311(2) of the Sentencing Act 2020 makes clear that the court must impose an appropriate custodial sentence for a term of at least the required minimum term unless the court is of the opinion that there are “exceptional circumstances” which “relate to the offence or to the offence” and which “justify not doing so”.

There is a significant body of case law regarding the interpretation of “exceptional circumstances” and the procedure to be followed when a defendant wishes to raise such an argument. In R v. Nancarrow [2019] EWCA Crim 470 the Court of Appeal considered a range of authorities regarding the proper interpretation of “exceptional circumstances” and set out eight overarching principles to be considered[3]. Some of these principles simply restated points made in the earlier case of R v. Rehman [2005] EWCA Crim 2056, including the need to adopt a holistic approach and the “arbitrary and disproportionate”[4] test.

However, the Court of Appeal also held that the sentencing court should always have regard, amongst other things, to the four questions in Avis when considering the issue of exceptional circumstances. The Court of Appeal additionally emphasised the fact-specific nature of the inquiry, making clear that “limited assistance is to be gained from referring the court to decisions in cases involving facts that are not materially identical”, with the court slow to interfere with first instance decisions on “exceptional circumstances” unless the first instance judge was “clearly wrong”[5].

The Guidelines

Structure

It is important to note from the outset that the eight sentencing guidelines do not cover every offence within the Firearms Act. The offences covered are as follows:

1. Possession, purchase or acquisition of a prohibited weapon or ammunition – sections 5(1), 5(1A)
2. Possession, purchase or acquisition of a firearm/ammunition/shotgun without a certificate – sections 1(1), 2(1)
3. Possession of a firearm or ammunition by person with previous convictions prohibited from possessing a firearm or ammunition – section 21(4) and 21(5)
4. Carrying a firearm in a public place – section 19
5. Possession of firearm with intent to endanger life – section 16
6. Possession of firearm or imitation firearm with intent to cause fear of violence – section 16A
7. Use of firearm/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 – sections 17(1), 17(2) and 18
8. Manufacture/sell or transfer/possess for sale or transfer/purchase or acquire for sale or transfer prohibited weapon or ammunition – 5(2A)

Culpability and Harm

Unlike the majority of sentencing guidelines, those dealing with the less serious offences of simple possession and carrying a firearm in a public place adopt a novel two-stage approach to the issue of culpability.

Practitioners must first consider what “type of weapon” was used before then making an assessment of “other culpability factors”. These are identical for the first four guidelines and include whether the firearm was going to be used for a “criminal purpose” and whether the Defendant intended the firearm to be used or was reckless as to whether it would be.

The two-stage inquiry encapsulates the first three questions set out by Lord Bingham CJ in Avis and suggests that for the less serious offences similar considerations will apply under the guidelines as before. It is significant however that when moving to the more serious offences in sections 16, 17, 18 and section 5(2A) culpability  no consideration is given to the type of weapon involved.

The culpability factors differ for each offence, but for those under sections 16, 17 and 18 common factors include whether the firearm was discharged and whether the Defendant had a leading role where offending is part of a group activity. The offence of importation and distribution under section 5(2A) has its own specific culpability factors, including whether there was the expectation of substantial financial or other advantage and whether the Defendant abused a position of trust and responsibility as a registered firearms dealer.

When assessing harm the factors are largely the same for all offences, with consideration required of the degree of alarm and/or distress, psychological and/or physical harm, disorder caused. For section 5(2A) offences the focus is understandably on the scale of the criminal operation, with reference made to the number of weapons involved, the duration of the operation and its geographical range.

When assessing starting point and range it is noteworthy that for offences contrary to sections 5(1) and 5(1A) there are two relevant separate tables, depending on whether the particular offence charged falls within the scope of the mandatory minimum sentencing provisions. This reflects the fact that sections 5(1) and 5(1A) criminalise possession of a diverse range of weapons.

Aggravating and Mitigating Factors

In order to move within the sentencing range, it is necessary to consider aggravating and mitigating factors. A number of these factors are unique to firearms offences.

The fact that the relevant firearm was disguised is an aggravating feature common to all of the guidelines, as are whether the firearm was modified to make it more dangerous and whether the firearm and/or ammunition was held with multiple weapons. The absence of knowledge or suspicion that the item was a firearm is a mitigating factor for all offences bar sections 16, 17 and 18, whilst the fact that the firearm was incomplete or incapable of being discharged is a mitigating factor in every case.

Although the type of weapon is not relevant to culpability for the more serious offences, specific reference is made within the aggravating factors for section 16, 17, 18 and 5(2A) offences to whether the firearm is prohibited under section 5(1)(a) as an automatic weapon.

Whilst the type of weapon may therefore not impact upon the starting point for these offences, it will impact upon the final sentence imposed. 

Discrimination

When launching the new guidelines in December 2020, the Sentencing Council noted that their analysis of the various firearms offences had suggested that there are “disparities in sentence outcomes for some firearms offences based on ethnicity”[6].

In an attempt to address this disparity the Sentencing Council have included the following reminder within some, but not all, of the firearms guidelines:

Sentencers should be aware that there is evidence of a disparity in sentence outcomes for this offence which indicates that a higher proportion of Black and Asian offenders receive an immediate custodial sentence than White offenders and that for Black offenders custodial sentence lengths have on average been longer than for White offenders.

The acknowledgment of the disparity and the inclusion of the notice within the body of the guidelines is significant. It is likely that such notices will appear in other offence guidelines, with the Sentencing Council making clear that they will continue “to investigate apparent disparity in sentencing outcomes across all offences”.[7]

Mandatory Minimum

For those offences to which the mandatory minimum applies, the guidelines helpfully set out a summary of the relevant provision and principles. To a large extent this simply restates the law as is now set out in section 311 of the Sentencing Act 2020. In Paragraph seven, the Sentencing Council make clear that where factual circumstances are disputed, the procedure should follow that of a Newton hearing, reflecting the established practice in R v. Rogers [2016] EWCA Crim 801

Under the heading “principles”, the Sentencing Council gives consideration to the issue of “exceptional circumstances”.  The principles set out are almost identical to those established in Rehman and restated in Nancarrow, with the Sentencing Council acknowledging that a “single striking factor may amount to exceptional circumstances”.

The sort of factors or circumstances that may suffice are not set out, however the Sentencing Council does make clear that the “mere presence” of one or more lower culpability factors, mitigating factors or a plea of guilty should not “in itself” be regarded as exceptional.

Conclusion

The new sentencing guidelines are comprehensive, both in the range of offences covered but also in their individual content.

The detailed culpability provisions, coupled with the extensive list of aggravating and mitigating factors for each offence, should give the court the flexibility to deal with individual cases whilst at the same time making it easier for practitioners to properly advise Defendants.

In many ways the guidelines simply repackage principles well-established in existing case-law. The reference to the mandatory minimum sentence for example, whilst convenient for practitioners, simply restates the established principles.

However, in other important respects, most notably the specific reference to discriminatory sentencing practices, the guidelines represent a significant step forward. It remains to be seen what, if any, impact these guidelines will have upon the sentencing of firearms but there is every reason to be optimistic that the result will be clearer, fairer and more consistent sentences.

Joe Tarbert joined Carmelite in July 2020 following the completion of his pupillage. He is frequently instructed to mitigate in serious cases across the Magistrates’, Youth and Crown Courts and has a particular interest in sentencing for youths and vulnerable defendants

[1] Avis [1998] 1 Cr App R 420 at 424

[2] Ibid. at 430

[3] R v. Nancarrow [2019] EWCA Crim 470 at para 19

[4] Rehman [2005] EWCA Crim 2056 at para 16

[5] [5] R v. Nancarrow [2019] EWCA Crim 470 at para 19

[6] https://www.sentencingcouncil.org.uk/news/item/new-sentencing-guidelines-for-firearms-offences-published/

[7] Ibid.