Changes to firearms sentencing guidelines

Last week a firearms offences sentencing guidelines consultation was released which contains a draft of the proposed sentencing guidelines for firearms offences.

Alex Close-Claughton looks at the consultation and explains how the guidelines would work and compares this to how sentencing is determined currently.

It should first be noted that these are proposed guidelines forming part of a consultation meaning that they could be subject to change and may never come into force. Currently sentencing for firearms offences is governed by case law. Judges follow the precedents set by the leading cases and determine sentencing based on the guidance given in the relevant case. 

The leading cases at the moment are R v Avis 1998 (concerned with which types of firearms offences will result in a custodial sentence and sets out a series of questions to determine the appropriate sentence), R v Wilkinson 2009 (concerned with the offence of possession of a firearm with intent to endanger life) and R v Stephenson 2016 (concerned with the transfer of weapons and ammunition). 

The nature of case law means that sentencing is dependent on the judge’s interpretation of that case law and this means that there is some uncertainty surrounding it

The proposed guidelines cover the most commonly occurring firearms offences. As with the definitive guidelines for drug offences (and some other types of offences) the first step to be taken during sentence is to determine culpability and harm. 

Possession of a prohibited weapon

Step 1: Culpability and Harm 

The level of culpability is determined by a two stage test. Firstly the court is asked to consider what type of weapon the firearm is. 

There are three categories that the weapon can fall into:

• Type 1 – being a weapon that is capable of killing two or more people at the same time. 
• Type 2 – weapons not falling into type 1 or 3.
• Type 3 – being weapons not designed to be lethal.

The court is then required to look at another level of culpability concerned with the way the weapon was used or intended to be used. Again there are three categories:

• High culpability – Firearm discharged/loaded/used or intended to be used for criminal purpose.
•  Medium culpability – Firearm or ammunition produced/firearm held with compatible ammo/firearm held intended for use (when not high culpability).
• Lower Culpability –  no use or intention to use.

The type of weapon and the other culpability factors are then cross referenced  to determine the category of culpability out of category A, category B and category C. 

A Type 1 weapon with either medium or high culpability mean category A. A Type 3 weapon with either medium or lower culpability would placed into category C. All other combinations would be placed into category B. 

The offence then must be placed into categories of ‘harm’.  Category 1 is serious alarm or distress caused/high risk of death or serious harm/high risk of serious disorder. Category 2 is for offences which fall between 1 and 3. Category 3 is when no or minimal alarm or distress is caused / no or minimal risk of death or serious harm / no or minimal risk of serious disorder. 

Step 2: Starting points and ranges 

Once the categories of culpability and harm are determined, the same as in drugs cases, they are cross referenced against each other to determine a starting point and a range. There are two tables which determine sentence ranges in the guidelines, one table for weapons which are subject to the statutory five year minimum sentence (as outlined by the Firearms Act) and another for weapons which are not subject to the statutory minimum. 

For example the most serious offences of possession of a prohibited weapon for weapons subject to the five year minimum would be placed into category A culpability and category 1 harm and have a starting point of 8 years in custody and a range of 7-10 years. The least serious offences with category C culpability and category 3 harm would have a starting point of 5 years with a range of 5-6 years. 

The same categories of culpability and harm  but with weapons not subject to the five year minimum will attract a starting point of 3 years (with a range of 2-5 years) and a band C fine (with a range of discharge to community order) respectively.

Obviously there are many categories of culpability and harm between those mentioned above, here I have mentioned the most and least serious to give readers an idea of the range and scope of the guidelines.  

The guidance will then require the court to give regard to any aggravating or mitigating features which may slide the sentence up or down the range provided above. The guidance provided a list of aggravating and mitigating features which is not exhaustive.

Step 3: Minimum term 

The guidance then asks the judge have regard to any statutory minimum terms if an offence is subject to them. This includes considering how the minimum term applies to the defendant (the minimum term is different for those under the age of 18) and also whether any exceptional circumstances exists which can persuade the court to deviate from the statutory minimum.  It outlines the principles which surround exceptional circumstances including the notion that exceptional circumstances are circumstances that would make a mandatory minimum sentence arbitrary and disproportionate.

Steps 4-9 – Usual sentencing practice including factors to be considered for a reduction in sentence, given credit for guilty pleas, the totality principle, consideration of any ancillary orders, giving reasons for the sentence passed and consideration of time spent on remand.

Steps 4-9 are the final steps that are taken by a judge when sentencing in nearly all cases.

Possession without a certificate

They use a similar two stage test to the possession of a prohibited weapon, however the types of weapons different to reflect the nature of firearms that can be possessed with a certificate.

• Type 1 – a shotgun that has been shortened or a firearm that has been converted.
• Type 2 – All other firearms or shotguns or ammunition.
•  Type 3 – A very small amount of ammunition

The three grades of culpability are the same as the possession of a prohibited weapon and the category of culpability is determined in the same way as well. 

The categories of harm are also the same as possession of a prohibited weapon and they are cross referenced in the same way with the categories of culpability. 

There is no requirement to split the sentence starting points and ranges into those subject to a mandatory minimum and those not.

The sentence ranges are significantly lower that the Possession of a Prohibited Weapon with Category 1 harm and Category A culpability will lead to a starting point of 3 years 6 months (with a range of 2 years 6 months to 4 years 6 months) and a Category 3 harm and Category C culpability has a starting point of a band A fine (with a range of discharge to band C fine).

As per the earlier section of the guidelines  there is a requirement to give regard to aggravating and mitigating circumstances and provides a non-exhaustive list, they then move onto the usual steps which were outlined previously (credit for guilty plea and consideration of remand time ect.)

There is no requirement to consider minimum terms for possession without a certificate.

Possession by prohibited persons

They are the similar to possession without a certificate. There is additional criteria for the types of weapon but the category of harm and culpability are determined in the same way and the sentencing ranges are the same or very similar. 

Carrying in a public place

Again they are very similar the last two offences discussed. The starting point is reached in the same way, the starting points and ranges are slightly and there are more non custodial options in order to reflect the range of weapons to which this offence applies. The highest starting point is 2 years custody with a range of 1-4 years. 

Possession with intent to endanger life 

This is the most serious offence in dealt with in the guidelines. Unlike the other possession offences there is no two stage test for culpability. Much like the drug sentencing guidelines, the judge is simply required to place the offence into categories of culpability and harm. The key considerations for culpability are the role of the offender, the circumstances of the possession.

A – High culpability 

–  Sophisticated nature of offence/significant planning 

• Leading role where offending is part of a group activity 
• Distribution or supply of firearms on a large scale 
• Firearm discharged 
• Prolonged incident 

B – Medium culpability 

• Significant role where offending is a group activity 
• Some degree of planning 
• Firearm loaded or held with compatible ammo 
• All other cases falling between Culpability A and C

C – Lower culpability 

• Lesser role where  the offending is part of group activity 
• Little or no planning or unsophisticated offending 
• Firearm not produced or visible.
• Conduct limited in scope and duration 

The Categories of harm are also slightly tweaked as well and they are as follows 

Category 1 

• Severe physical harm caused 
• Severe psychological harm caused 

Category 2 

• Serious physical/psychological harm caused 
• High risk of death or severe harm
• High risk of serious disorder 

Category 3 

• Alarm or distress Caused 
• All other cases not falling into 1 or 2 

The starting points are much higher than offences previously mentioned with Category  1 harm and category  A culpability leads  in a starting point of 18 years custody (with a range of 16 – 22 years) and category 3 harm and category C culpability has a starting point of 5 years custody (with a range of 4 – 7 years in custody).  Aggravating and mitigating features are then non-exhaustively listed and the consideration of minimum sentences applies in for this offence as per possession of a prohibited weapon. The guidelines then move onto the standard sentencing practice as in the rest of the offences. 

Possession with intent to cause fear of violence

These guidelines are virtually the same as the previous offence in terms of culpability and harm apart from the fact there is provision for the defendant’s intention when using the weapon to be considered.  Another difference is that are there are two starting point tables one for a firearm and one for an imitation firearm. The starting points are lower for imitation firearms than for firearms.  Category A harm and 1 culpability on the firearm table has a starting point of 8 years in custody (with a range of 7-9 years) and whereas the starting point for the same on the imitation firearm table has a starting point of 6 years (with a range of 4-8 years). 

Possession offences – other 

The next section of the guidelines deals with three offences. 

• Use or attempted use of a firearm or imitation firearm to resist arrest
• Possession of a firearm or imitation firearm when committing or being arrested for a schedule 1 offence 
• Carrying a firearm or imitation firearm with criminal intent 

The categories of culpability and harm are the same as possession with intent to endanger life and the starting point is reached in the same way however the starting point tables are again divided into cases concerning a firearm and those using an imitation firearm.  Category A harm and 1 culpability on the firearm table has a starting point of 12 years in custody (with a range of 10-16 years) and Category A harm and 1 culpability on the imitation firearm table has starting point of 9 years (with a range of 7-11 years). 

Transfer and manufacture 

This is the final offence dealt with by the guidelines and there is a change in approach terms of what is considered. The culpability factors focus on the role of the offender, the degree of planning, and the expectation of financial reward. The harm factors focus on the scale and nature of the operation and any actual harm caused.

 The starting point for category A culpability and 1 harm is 20 years in custody (with a range of 16-28 years). The starting point for a category C culpability and 3 harm is 6 years custody (with a range of 4-8 years)

What impact will the above have on sentencing?

Throughout the proposed guidelines they make it clear that the Sentencing Council has based the sentence levels on an analysis of sentences passed previously and judges sentencing remarks. There is no intention to alter sentencing levels by introducing this guideline. The main intention is to draw together  the most common firearm offences  and make a definitive guideline for the courts to use when sentencing. It will serve to remove some of the uncertainty which currently surrounds sentencing for firearms offences and make it easier for defendants to have a good idea of what sentence they will receive before they receive it.