Firearms offences; Sentencing for Unlawful importation
A new draft sentencing guideline for the offence of importing prohibited or restricted firearms has been published for consultation. There are no current guidelines in respect of these offences, although there are eight current guidelines for offences under the Firearms Act 1968.
Sentencing guidelines set the range for sentences and are intended to reflect current sentencing practices for the offences. They must be followed unless a judge or magistrate is satisfied that it would not be in the interest of justice to do so. They aim to provide a consistent approach to sentencing with proportionate sentences being imposed.
The guideline covers two offences under the Customs and Excise Management Act 1979 – under section 50, the importation of goods and under section 170, the fraudulent evasion of prohibition/restriction. The types of weapons referred to are those under sections 1 and 5(1) and 5(1A) of the Firearms Act 1968.
The new guideline will be for adult offenders and proposes a sentence of up to 28 years imprisonment for the most serious cases. Such cases would be the large-scale importation of rapid-firing weapons for use in crime. Up to seven years imprisonment is suggested for offences involving less dangerous firearms. Offences under the Customs and Excise Management Act 1979 are not subject to the minimum term provisions which relate to certain Firearms Act offences. The firearms and ammunition that would be subject to the minimum five-year term if prosecuted as possession, have a statutory minimum sentence of life instead of seven years for all other firearms and ammunition.
Levels of culpability
The guideline for the offences initially sets out three levels of culpability based on the type of weapon involved. The highest culpability is Type 1, a weapon capable of killing two or more people simultaneously or in rapid succession. The lowest is type 3, which relates to weapons not designed to be lethal or a small quantity of ammunition. There are then three categories of other culpability factors detailed as high, medium and low. Once the type of weapon and level of culpability is decided, the sentencer moves to the issue of harm within three categories.
There are then two tables, one for use with the statutory maximum life sentence offence, the other for the maximum seven years offence. Using the type of weapon and levels of culpability and harm, a starting point and sentencing range is produced. As usual with guidelines, the aggravating and mitigating factors are then used to produce the appropriate sentence within the range set out in the tables.
This guideline is unusual due to the two-stage model for assessing culpability. The Council states this has been put forward as the type of weapon is a crucial factor in determining the seriousness of the offence and should be considered separately from the other culpability factors. The CPS will need to update their charging policy to ensure that the charge or indictment specifies the type of weapon or ammunition concerned to assist the court.
The draft guidelines are a result of the National Crime Agency and the CPS urging the Council to develop them, following their initial decision not to.
What do they want to know?
Views are sought on:
- the principal factors that make the offences included within the draft guideline more or less serious;
- the additional factors that should influence sentence;
- the approach taken to structuring the draft guideline;
- the sentences that should be passed for firearms importation offences.
As part of the process, the Council intends to hold discussions with interested parties and sentencers to gauge whether the proposed guidelines would work as anticipated. A statistical bulletin and resource assessment has also been published. Following the consultation, the final guidelines will be published.
The guidelines are open for consultation until 8th September 2021.
How can we help?
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
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Firearms Sentencing – Consultation on Reform
The Sentencing Council is consulting on a new guideline for some of the most commonly prosecuted firearms offences. At the moment, guidance is to be found only in case law. This can lead to a challenging sentencing exercise.
The purpose of the guideline is to provide consistency in sentencing. The impact assessment does not suggest that any general increase in sentences is to be expected. However, in many instances the Sentencing Council was met with a weak evidence base to evaluate this..
If consistency is achieved, you would expect some sentences to increase, and some decrease, but overall average sentence lengths to be broadly level. However, experience with some other guidelines does suggest that sentence length may creep upwards.
Overall, we would expect it to be easier to predict the likely sentence that a person might receive on a plea or after trial.
Statutory minimum sentences
One interesting observation is concerning statutory minimum sentences for some offences:
“The Council was surprised to note that exceptional circumstances were being found in around two thirds of disguised weapons cases (section 5(1A)(a)) which appeared to run counter to the principle that in order to justify the disapplication of the five year minimum, the circumstances of the case must be truly exceptional.”
The Council, therefore, felt that:
“Setting out the principles in a guideline is likely to lead to them being more consistently applied, which in turn could lead to exceptional circumstances being found in fewer cases.”
It was also noted that recent changes to Crown Prosecution Service charging guidance for some firearms offences would in itself lead to fewer mandatory sentence cases being prosecuted.
Which offences will the new guideline cover?
Eight guidelines will cover the following offences in the Firearms Act 1968:
- 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
- Manufacture/sell or transfer/possess for sale or transfer/purchase or acquire for sale or transfer prohibited weapon or ammunition.
The consultation runs until mid-January, so it is likely to be Summer 2020 before any new guidelines take effect. However, that is not to say that some judges will not have them in mind before then.
How we can assist
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
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Brexit, firearms legislation, and other laws
Everyone will be aware that Brexit is coming and it is likely that we will be leaving the EU on 31st October 2019. Now, details have begun to emerge as to the legal and regulatory position if we leave without a deal. Some of the first information released relates to firearms legislation, for instance. Unfortunately, it raises more questions than it answers.
Given the importance of complying to the letter with firearms laws both here and abroad, those affected must take steps to keep up to date. This is likely to involve quite close monitoring over the next few weeks. The same is true in relation to other areas of regulatory and criminal law compliance.
What is the current situation?
A UK resident traveling to the EU with their shotgun or firearm can apply for a European Firearms Pass. This is a licence, or passport, that allows travel between member states. You must also have a licence from the UK to hold the firearm. Depending on the country you are travelling to, there may be other documents required. All weapons have to be declared to customs and also to the travel company you are using for transport.
What will change?
If the UK leaves the EU without a deal, you will no longer be able to apply for a European Firearms Pass.
What will happen instead?
You will need to check the firearms licensing requirements of the country, before travelling.
This will also apply if you are in an EU country with the firearm with a European Firearms Pass at the time the UK leaves the EU.
What about visitors to the UK?
If you are sponsoring a visitor from the EU, who wants to bring a firearm to the UK, you need to apply to the local UK police force for a visitor’s permit. A permit that is issued before the UK leaves the EU remains valid until it has expired.
Once the UK leaves the EU, the European Firearms Pass will no longer be recognised for EU visitors to the UK. Sponsors of visitors will not need to show a valid Pass.
What should I do?
Nobody knows yet whether the UK will leave the EU without a deal in October. If you intend to travel with your firearm, it is advisable to check the licensing requirements of the country that you are visiting. Different countries have varying lead times for applying for licences. If you want to travel with your firearm, you must make sure you have a proper licence.
Firearms legislation is complicated at the best of times. So, if you are concerned with any aspect of regulatory criminal law and Brexit then get in touch for advice on the latest position.
How we can assist
If you need specialist advice in relation to any criminal investigation or prosecution please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk and let us help. We can advise on all aspects of your case.
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