Friday 9 May 2014

Knives - bladed articles - sentencing

Updated 10th May

In April, schoolteacher Mrs Ann Maguire was stabbed at her school in Leeds.  She died and a knife was recovered.  A 15 year old boy pupil at the school was arrested - BBC News 29th April 2014.   Subsequently, the boy was charged with murder and was remanded into youth detention by Leeds Youth Court - The Guardian 1st May 2014

Inevitably, this case has resulted in calls for tougher sentencing for those found to be unlawfully in possession of knives - see here - though Nick Clegg (Deputy Prime Minister) is reported to be unsympathetic to  the idea of a minimum sentence of imprisonment for those convicted of a second offence of possession - The Guardian 8th May.

Present day sentencing law
can be traced from the Criminal Justice Act 1988 section 139.  As originally enacted - (here) - the offence was triable only summarily (i.e. in the Magistrates' Court) carried a maximum sentence of a Level 3 fine.   Now, the offence is triable either-way and the maximum penalties are:

(a) on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding four years, or a fine, or both.

The offence became triable either-way from 4th July 1996 - Offensive Weapons Act 1996 s.3 - but the maximum sentence following trial on indictment was then set at 2 years.  It was raised to 4 years by the Violent Crime Reduction Act 2006 s. 42

Despite these clear indications from Parliament that sentencing was too lenient, it cannot be said that sentencing practice has markedly changed.  Under current Magistrates' Court sentencing guidelines,  possession of a bladed article where the offence is committed in dangerous circumstances but is not used to threaten or cause fear would attract a starting point of 6 weeks imprisonment in the Magistrates' Court.  The sentencing range is from a High Level Community Order to committal to the Crown Court for sentencing.

The Crown Prosecution Service website gives extensive in formation relating to sentencing - Offensive Weapons, Knives, Bladed and Pointed Articles .  A reading of this takes us to the Court of Appeal (Criminal Division) judgment in R v Povey [2008] EWCA Crim 1261where, in paras 3 to 5, Sir Igor Judge P said:

  1. Carrying a knife or an offensive weapon without reasonable excuse is a crime which is being committed far too often by far too many people. Every weapon carried about the streets, even if concealed from sight, even if not likely to be or intended to be used, and even if not used represents a threat to public safety and public order. That is because even if concealed, even if carried only for bravado, or from some misguided sense that its use in possible self-defence might arise, it takes but a moment of irritation, drunkenness, anger, perceived insult or something utterly trivial, like a look, for the weapon to be produced. Then we have mayhem and offences of the greatest possible seriousness follow, including murder, manslaughter, grievous bodily harm, wounding and assault. All those offences have victims.

  2. Offences of this kind, carrying an offensive weapon or knife, have recently escalated. They are reaching epidemic proportions. Every knife or weapon carried in the street represents a public danger and therefore in the public interest this crime must be confronted and stopped. The courts will do what they can to help reduce, and, so far as practicable, eradicate it. In our view, it is important for public confidence in the criminal justice system that the man or woman caught in possession of a knife or offensive weapon without reasonable excuse should normally be brought before the courts and prosecuted. Any conviction should be recorded and then the offender sentenced. For the time being, whatever other considerations may arise in the individual case, sentencing courts must have in the forefront of their thinking that the sentences for this type of offence should focus on the reduction of crime, including its reduction by deterrence, and the protection of the public. Even if the offender does no more than carry the weapon, even when the weapon is not used to threaten or cause fear, when considering the seriousness of the offence courts should bear in mind the harm which the weapon might foreseeably have caused. So the message is stark. This is a serious offence and it should be treated with the seriousness it deserves.

  3. In considering these cases we have had in mind a number of decisions of this court. The first and most obvious is Poulton and Celaire [2003] 1 Cr App R(S), [2002] EWCA Crim 2487, Brookes 2004, Williams 2006, [2006] EWCA Crim 2530, Price 2006, and Jeggo 2007, [2007] EWCA Crim 3046, as well as the current proposed guidelines to magistrates' courts. That leads to two further observations. First, the guideline decision of this court in Poulton and Celaire was decided in October 2002, following advice from the Sentencing Advisory Panel given in 2000. All the subsequent decisions have followed that guidance. Conditions now are much more grave than they were five and a half years ago and the guidance given in Poulton and Celaire should be applied with the current grave situation as we have endeavoured to explain it, and the sentencing considerations we have just identified clearly in mind. That is what we have done in these cases. Second, we recommend that any relevant guidance from the Sentencing Guidelines Council to magistrates should normally be applied at the most severe end of the appropriate range of sentences.
Other legislative action:

Parliament has not only made the section 139 offence triable either-way and increased the maximum sentence but the offence of having an article with a blade or point or offensive weapon on school premises was also created - Criminal Justice Act 1989 s139A and  a constable has power to enter school premises to search - section 139B

Is there a need for any further legislation?

It might be argued that the existing 4 year maximum sentence should offer an adequate deterrent but, plainly, it does not seem to do so.  That is perhaps because actual sentences are generally much lower.  Hence, there are calls for a MINIMUM sentence of imprisonment for a second or subsequent offence of unlawful possession.

Minimum sentences:

Minimum sentences exist in certain other areas: Drug trafficking (3rd Class A offence); Domestic Burglary (3rd offence) and certain Firearms Offences - for full details see CPS Mandatory and Minimum custodial sentences.    The minimum terms are qualified by words such as 'unless it would be unjust to do so in all the circumstances' to impose the sentence or by permitting the court to not apply the minimum sentence in 'exceptional circumstances.'

Minimum sentences are not applicable where the offender is under 18 at the time of the offence though, in relation to the firearms offences, a lower minimum applies if the offender is under 18 but over 16 at the time of the offence.   It is always necessary to look at the relevant legislation to see the precise sentencing requirements.

In some situations, the application of a minimum sentence can produce serious injustice.  This is discussed in the context of firearms offences by Edward Bindloss at TheJusticeGap - Minimum sentence: minimum justice.

The future?

If only because of public pressure and the experiences of knife victims - see The Guardian 9th May - Knife crime victim condemns Nick Clegg's veto on stricter sentencing - it seems likely that Parliament will move to a minimum sentencing regime in this area.  However, there is the option of the Sentencing Council looking at the existing guidance with a view to making the existing sentencing system tougher.  This option has the merit of leaving it to the sentencing judge (or magistrates) to take into account all the relevant factors.  The available statistics certainly show that sentencing remains on the lenient side given that last year some 16,031 cases arose of knife possession but only 28% received a custodial sentence.  The outcome of this issue is awaited with interest.

Updates 10th May:

The Guardian - Editorial - Knife Crime: Imprisoning dogma - arguing that Nick Clegg has reason on his side.

The Guardian - Nick Clegg's veto of Tory plans opens up divisions in knife crime debate - where it is said that - 'Last year, three out of 10 people caught with a knife were jailed. There were 16,031 cases of a person caught in possession of a knife, with 28% resulting in a custodial sentence. The majority were not sent to prison; more than 3,200 received a caution or fine.'

1 comment:

  1. Minimum sentences make great tabloid headlines, that is until the "wrong" sort of person gets convicted in the eyes of the tabloids, look at the press anger at the conviction of the SAS soldier who was found to be in possession of a pistol and over 200 rounds of ammunition.