Knife crime is very much on the political agenda, with a number of stabbings having taken place over the last few weeks, resulting in deaths and injury, and no doubt the loss of liberty in due course for those responsible. Attention is now focussed on using deterrent sentences to discourage knife possession.

The Sentencing Council, which is responsible for setting sentencing guidelines in England and Wales, has today issued a new guideline for knife crime offences.

What offences does it cover?

The guideline applies to offences of:

• Possession of an offensive weapon in a public place
• Possession of an article with a blade/ point in a public place
• Possession of an offensive weapon on school premises
• Possession of an article with a blade/ point on school premises
• Unauthorised possession in prison of a knife or offensive weapon (adult guideline only)
• Threatening with an offensive weapon in a public place
• Threatening with an article with a blade/ point in a public place
• Threatening with an article with a blade/ point on school premises
• Threatening with an offensive weapon on school premises

The guideline does not cover situations where a knife or other weapon is actually used to harm someone. This would come under other offences such as assault or murder/manslaughter. Similarly, it does not include the use or possession of firearms which is covered by different legislation.

Does the guideline apply to all offenders?

The new guideline applies both to adults and those under 18. In relation to the latter, the guideline will work alongside the Sentencing Children and Young People guideline and encourage courts to look in far greater detail at the age/ maturity, background and circumstances of each offender in order to reach the most appropriate sentence that will best achieve the aim of preventing reoffending, which is the main function of the youth justice system.

What will be the effect of the new guidance?

Leading Court of Appeal judgments have emphasised the seriousness of this type of offending and have set out sentence levels that senior judges see as appropriate for dealing with offenders.

The proposed guideline takes these changes to the law and court judgments into account in consolidated, up to date guidance. It ensures that those offenders convicted of offences involving knives or particularly dangerous weapons, as well as those who repeatedly offend, will receive the highest sentences. The introduction of the guideline may, therefore, lead to some increases in sentence levels, predominantly in relation to adults convicted of possession offences.

Are there any minimum sentences for these offences?

The law on mandatory sentences for offences involving bladed articles or offensive weapons states:

• Where an offender is convicted of a second (or further) bladed article/ offensive weapon offence the court must impose a mandatory minimum sentence of 6 months' imprisonment for an adult or 4 months' Detention and Training Order for a youth (under 18), unless satisfied that there are circumstances relating to the offence or the offender that make it unjust to do so in all of the circumstances.
• Where an offender is convicted of threatening with a bladed article/ offensive weapon the court must impose a mandatory minimum sentence of 6 months' imprisonment for an adult or 4 months' Detention and Training Order for a youth (under 18), unless satisfied that there are circumstances relating to the offence or the offender that make it unjust to do so in all of the circumstances.

As the guideline gives the highest sentences to those offenders who threaten with knives or highly dangerous weapons, these offenders will always receive sentences greater than six months. The combination of the legislation and the guideline may therefore mean that there is an increase in sentences received by some offenders convicted of these offences.

Where the seriousness of the combined offences is such that it falls far below the custody threshold, or where there has been a significant period of time between the offences, the court may consider it unjust to impose the statutory minimum sentence.  

The court should consider the following factors to determine whether it would be unjust to impose the statutory minimum sentence:

• Strong personal mitigation
• Whether there is a strong prospect of rehabilitation
• Whether custody will result in significant impact on others

What about 'highly dangerous weapons'?

Additional guidance has been included as to what constitutes a highly dangerous weapon.

This has been set out as follows:

"An offensive weapon is defined in legislation as 'any article made or adapted for use for causing injury or is intended by the person having it with him for such use”.

A highly dangerous weapon is therefore a weapon, including a corrosive substance (such as acid), whose dangerous nature must be substantially above and beyond this. The court must determine whether the weapon is highly dangerous on the facts and circumstances of the case.

How we can assist

Sentencing is a complex process and all of our advocates understand how to navigate sentencing guidelines and ensure that they are not applied in a mechanistic manner, instead ensuring the court focusses on all relevant considerations.

For help with any criminal law related matter, please contact Esther Leach and our crime team on 0151 227 1429 or message us your enquiry.