New-ish Firearms Sentencing Guidelines: A route map to consistency

April 29, 2021

Guidelines effective from 1 January 2021

Ben Berkson

Before we turned the page on 2020, the Northern Circuit organised an excellent talk on sentencing guidelines. This was kindly hosted by Lord Justice Holroyde, the current Chairman of the Sentencing Council. The introduction of definitive sentencing guidelines for firearms offences is one of the latest steps taken to increase consistency of approach as well as transparency for victims and offenders. Moreover, there will be a helpful side-effect for advocates, both fostering confidence in legal submissions and establishing a neat framework to work from.

Shifting gears from one senior judicial officer to another, the courts of England and Wales have a collective finger firmly on the pulse when it comes to firearms. Firearms offences are treated with the upmost seriousness. This notion is eloquently encapsulated in the following citation of the then Lord Chief Justice Judge, in the leading authority of Wilkinson.

R v Wilkinson [2010] 1 Cr App R (S) 100 [Para 2]

The gravity of gun crime cannot be exaggerated. Guns kill and maim, terrorise and intimidate. That is why criminals want them: that is why they use them: and that is why they organise their importation and manufacture, supply and distribution. Sentencing courts must address the fact that too many lethal weapons are too readily available: too many are carried: too many are used, always with devastating effect on individual victims and with insidious corrosive impact on the wellbeing of the local community.

The above citation provides a touchstone as to why it is crucial for the sentencing exercise to be enhanced through the use of proper guidelines. The new Firearms Offences Guidelines span across eight distinct offences under the Firearms Act 1968 and they came into force on 1 January 2021:

  • Possession, purchase or acquisition of a prohibited weapon or ammunition
  • Possession, purchase or acquisition of a firearm/ammunition/shotgun without a certificate
  • Possession of a firearm or ammunition by person with previous convictions prohibited from possessing a firearm or ammunition
  • Carrying a firearm in a public place
  • Possession of firearm with intent to endanger life
  • Possession of firearm or imitation firearm with intent to cause fear of violence
  • Use of firearm or 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
  • Manufacture/sell or transfer/possess for sale or transfer/purchase or acquire for sale or transfer prohibited weapon or ammunition

These guidelines are bespoke and dedicated to each offence. The maximum sentence for the eight listed offences ranges between five-years and life imprisonment based on the facts and circumstances of each case. This significant range in maximum sentence, coupled with the seriousness of the offences generally, illustrate why the Sentencing Council have tried to address the issue of ‘disparity of sentence’ through proper guidelines.

Taking one case-study, I will lead you seamlessly through the guideline for possession, purchase or acquisition of a prohibited weapon or ammunition (hereafter ‘the Guideline’). The Guideline provides both counsel and judge with a 9-Step route map to follow. Before this route map is engaged however, the Guideline sets out by way of preamble which offences are either-way offences, and which are indictable only. These subsections directly correlate to specific types of firearm/prohibited weapon. The preamble also sets out the complete sentence range, which in this case is a simple discharge to 10-years imprisonment (this sizeable gulf in itself illustrates the previous point about the difficulties faced at sentence in many firearms cases).

Step 1 (Offence Category)

This is first measured by assessing culpability – which is taken in two stages. The first assessment is a pure focus on the type of firearm/weapon to which the offence relates. There are three ‘Types’, which decrease in seriousness from Type 1 – Type 3. It is important to note at this stage that it makes no difference if the firearm is not in working order nor loaded. The guideline also makes it clear at this stage of the assessment that it makes no difference to culpability if an offender is in possession of a single component, as opposed to a fully operational firearm. On-the-other-hand, where a weapon/firearm does not fit neatly into one Type (for example, if the weapon is not listed in the guideline), the court is entitled to adjust the starting point at a later stage to reflect this.

The next culpability stage which the court are bound to assess is what the Guideline refers to as ‘other culpability factors’

It is at this point that fact-specific issues over the operation of the firearm are reflected. For instance, if the gun was loaded this may indicate higher culpability, and if there was no intention to use the firearm, this would indicate lower culpability. Once both of these stages have been reviewed – culpability should be categorised into Category A, B or C depending on the overall assessment.

Moving onto harm, this assessment is only a one-stage process

There are three categories. Category 1 is the most serious. The Guideline lists factors which are designed to address both actual harm and risk of harm. The court will take into account, within the Guideline, factors such as the visibility or accessibility of the firearm, as well as any alarm/distress caused (this includes risk of harm/distress). Conversely, Category 3, the lowest bracket, seeks to highlight offences which involve little to no risk of harm, distress or disorder. Category 2 is a broad gamut which will catch offences that fall between the Category 1 and 3. As is the case with many guidelines, where features are apparent in two or more categories, the court is entitled to take a balanced approach to reach a fair, but appropriate assessment.

The next task for the Guideline user is to identify the appropriate starting point

There are two tables for this. The first and most common table reflects the fact that many offences of possession of a prohibited firearm are subject to a mandatory minimum sentence of five years’ custody. Where the offence is not subject to the statutory minimum term, table two should be used to locate the starting point. Table two contains a much lower range of sentences, from a discharge to a 5-year custodial sentence. This naturally reflects the position with respect to offences which do not attract a five-year minimum term.

Once the starting point has been identified, the next corner to take involves an analysis of features which may cause any adjustment to the starting point. the ‘usual suspect’ features appear here such as antecedent history. However, there are some bespoke factors as well. Of note in relation to the aggravating features, the following factors appear most relevant:

  • Firearm modified to make it more dangerous
  • Steps taken to disguise firearm
  • Firearm/ammunition kept with multiple weapons and/or substantial quantity of ammunition
  • Offence was committed as part of a group
  • Offender has contact with criminal associates, including through the purchase or supply of drugs (it is important to note that the court could be in danger of double counting here because this is also a relevant factor to culpability ‘firearm intended for use for criminal purpose’)
  • Abuse of position as registered firearms dealer or certificate holder

Looking at the other side of the coin, any of the following mitigating factors should lower the starting point for the offence:

  • Firearm incomplete or incapable of being discharged (hence why this is not factored into culpability at Stage 1)
  • No knowledge or suspicion that item possessed was firearm/ammunition
  • No knowledge or suspicion that firearm/ammunition is prohibited
  • Held on behalf of another through coercion, intimidation, or exploitation
  • Voluntary surrender of firearm/ammunition

Once the starting point has been assessed, the Guideline progresses to the thorny issue of the mandatory minimum term

The Guideline helpfully lists the statutory subsections to which the five-year term applies. Further, it makes it clear that this term applies, regardless of the fact it may be a first-time offence. It also makes it clear that the 5-year term applies as a minimum regardless of any plea. Therefore, if a defendant pleaded guilty at the first opportunity and the judge felt the apposite starting point after a trial was 6 years. While credit would ordinarily be a third, the statutory minimum term would trump his credit for plea. Therefore, a five year custodial sentence would be the lowest possible sentence. There is one caveat to this which is that the court may disapply the mandatory minimum term if there are exceptional circumstances. A classic example of this might be where the offender was very young (must be over 18 when the offence was committed anyway for the minimum term to kick in), or where the overall sentence would be disproportionate when combined with other relevant offences and/or features of the facts of the case. The Guideline provides some assistance to advocates on where the court may find a case ‘exceptional’. However, as these cases are by their nature, unusual, the Guideline is reticent to apply a narrow formula to this issue. Some available guidance, coupled with judicial discretion and a vigorous assessment of the facts, appears to be a sensible approach to this issue.

Steps 1-3 demand the most scrutiny. The next 5 steps are minor in both their required input and application

Step 4 addresses the reduction in sentence principle where a defendant assists prosecutors and investigators (pursuant to s. 73-74 of the Serious Organised Crime Act and Police Act 2005). Step 5 formally recognises that guilty pleas should attract a reduction in sentence. However, as mentioned before, the Guideline also repeats that the reduction must not dip below the required minimum term. Step 6 deals with the well-trodden principle of totality and Step 7 considers whether ancillary orders should be made. The most common ancillary order in firearms cases is obviously a forfeiture and destruction order in respect of the firearm/ammunition in question. Firearms certificate matters are also relevant at this stage as there are some provisions within the Firearms Act which call for the cancellation of Firearms Certificates where certain criteria have been met, following sentence. Steps 8 and 9 are tail end, universal steps, governing time spent on bail and the duty of the court to give reasons for and explain the effect of the sentence imposed.

I am yet to observe a sentencing hearing which has not been aided, at least in part, by an offence specific guideline. Personally, I find the area of sentencing generally extremely interesting and these guidelines should promote in-depth engagement. There are still some offences which are yet to be covered by a guideline e.g. the prohibition upon the importation of firearms (s.170 Customs and Excise Management Act 1979). It is anticipated that further guidelines will follow this initial roll-out. Time will tell whether previous problems, such as disparity in sentencing and improper governance of the five-year minimum term, will be improved by the definitive guidelines. Practitioners are aware that the legislation in this area is complex and at times confusing. These guidelines will serve to untangle some of those complexities and simplify matters at sentence. Collecting the relevant facets of case law into eight separate offence guidelines will also enhance consistency to an extent. However, the jury is still out as to the effectiveness of the two-stage culpability test. As this piece has outlined, the culpability assessment is very detailed and technical compared to other offences. I fear it could actually backfire (no pun intended)  and overcomplicate things from a sentencing perspective.