Trade Mark offences are the latest set of offences to be given sentencing guidelines by The Sentencing Council.
The Sentencing Council produces guidelines on sentencing for the judiciary and criminal justice professionals. The aim is to promote greater consistency in sentencing whilst maintaining the independence of the judiciary. The guidelines set sentencing ranges within the maximum for the offence and must be followed unless the court is satisfied that it would not be in the interests of justice to do so.
A consultation was held on guidelines for trade mark offences, and two new guidelines have now been produced for sentencing individuals or companies that sell or possess counterfeit goods intended for sale. The new guidelines will replace the existing one, which applies to individuals only, and will be used in all courts from 1st October 2021.
The offences concerned are relatively low volume offences, with around 370 adults and 40 organisations being sentenced in 2019. As they are low volume, it is likely that sentencers will not have too much experience of them, and so the Council felt that comprehensive guidelines would be of assistance.
Of the adult offenders, 36% received a community order, 31% a fine, 17% a suspended sentence, 4% were sentenced to immediate custody, and 5% were given a discharge. The remaining 6% were dealt with by other means such as forfeiture of property, a day in the cells, confiscation order, compensation order or other miscellaneous disposals. The average custodial sentence was 12 months, and no sentences exceeded 36 months.
An organisation that is a legal entity can be prosecuted with the only options being a fine or a discharge (an organisation cannot be sent to prison or be given a community order). The level of fine is unlimited.
Unauthorised use of a trade mark is an either offence that can be dealt with in the magistrates’ court or the crown court. The maximum sentence is ten years imprisonment and/or an unlimited fine.
The level of culpability is to be assessed by determining the offender’s role, the extent to which the offence was planned, and the level of sophistication. There are three levels in the guideline, high, medium and lesser culpability.
The level of harm is recognised as being “somewhat complex and nuanced”. When the guideline was road-tested, the feedback was that the model was tailored to the offence, and it met with approval. The assessment involves putting a monetary figure on the offending by reference to the equivalent genuine goods’ retail value and any significant additional harm suffered by the trade mark owner or purchasers of the counterfeit goods.
The guideline says:
- Where there is evidence of the volume of counterfeit goods sold or possessed:
- the monetary value should be assessed by taking the equivalent retail value of legitimate versions of the counterfeit goods involved in the offending.
- Where it would be impractical to assign an equivalent retail value of legitimate versions, an estimate should be used.
- Where there is no evidence of the volume of counterfeit goods sold or possessed:
- In the case of labels or packaging, harm should be assessed by taking the equivalent retail value of legitimate goods to which the labels or packaging could reasonably be applied, taking an average price of the relevant products.
- In the case of equipment or articles for the making of copies of trade marks, the court will have to make an assessment of the scale of the operation and assign an equivalent value from the table below.
The equivalent retail value is likely to be considerably higher than the actual value of counterfeit items, and this is accounted for in the sentencing levels. There may be exceptional cases where the retail value is grossly disproportionate, and an adjustment may be made in these cases. An example of additional significant harm could be purchasers being put at risk of physical harm from the counterfeit goods.
The guideline also sets out the steps that can be taken with a view to making a confiscation order, compensation order and forfeiture of goods.
The penalties in this guidance are financial and must be considered in the following order-
- Confiscation (Crown Court only)
Compensation must be considered to require the offender to pay compensation for any personal injury, loss or damage, having regard to the evidence and the offender’s means. Priority is to be given to the payment of compensation over any other financial penalty, and reasons must be given if a compensation order is not made.
Confiscation orders can only be made in the Crown Court, and a case dealt with in the magistrates’ court may be committed to the crown court for the order to be considered. If the lower court would otherwise have dealt with the case, the crown court would be limited to those powers. Confiscation is to be dealt with, and taken into account, when assessing any other fine or order.
Culpability factors for organisations are similar to those in the guideline for individuals; the harm factors are identical.
In considering the impact of the changes, the Council stated that they expected the guidelines to encourage consistency of approach and would not change average sentencing severity. However, an increase in custodial sentence lengths may result in the most serious cases, with some increase in the use of imprisonment for cases of low value but with a high risk of serious harm.
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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.
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The Sentencing Council has announced a consultation on the revision of sentencing guidelines for domestic, non-domestic and aggravated burglary offences.
The existing burglary definitive guideline was the second to be developed by the Sentencing Council and came into force under criminal law in 2012. The proposed guidelines have been developed following an evaluation of the existing ones.
The evaluation suggested that the severity of sentencing had increased for domestic burglary and aggravated burglary since introducing the guideline. There was also an increase in sentencing severity for non-domestic burglary, but it was not clear whether this was a result of the guideline or not. As a result of further evaluation, it was found the guideline had contributed to unanticipated increases in sentencing. The Sentencing Council intended to review the existing guidelines due to the evaluations but has been unable to do so until now.
Why is it being reviewed?
The Sentencing Council says that their methods for estimating the resource impact of a guideline are now more well developed. It was previously limited in its ability to assess how the offences would be categorised and sentenced under the guideline.
In developing the guideline, the Council considered data from the Crown Court Sentencing Survey, transcripts of judges’ sentencing remarks, and evidence of the reasons for the increases in sentencing severity.
The Council concluded that although the aggregate impact of the impact on sentencing outcomes had not been predicted, the sentencing practice was proportionate to the seriousness of the offence. The higher sentences are therefore expected to be maintained for the more serious offences under the proposed guidelines.
In particular, the changes proposed are to introduce middle categories for both culpability and harm. The Council says that the introduction of middle categories will provide greater flexibility for judges and magistrates in deciding the appropriate sentence.
The new medium culpability category is “some degree of planning or organisation”. It will also include other cases that fall within categories A and C because factors of A and C are present but balance each other out, or the offender’s culpability falls between the factors described in A and C.
In the categories of harm, the new version in category two is “theft of/damage to property causing some degree of loss to the victim (economic, commercial or personal value), and “greater emotional impact on the victim than would normally be expected”.
The Council decided that targeting is a very common feature of these offences, so including this factor in the high category could capture too many cases in the highest level of culpability. The factor is proposed to be changed to “targeting a vulnerable victim”.
The rest of the proposed changes to both culpability and harm factors are as per the non-domestic guideline.
Considerable thought was given to the “weapon present on entry” factor in the existing guideline, noting the recent case of Sage. The point from Sage was that the presence of a weapon on entry was an essential element of the section 9(1)(a) offence, and there could be a risk of double counting. It is proposed to remove the factor from high culpability and for it to become an aggravating factor. In doing so, it would avoid the problem of double-counting and enable the court to deal more severely with an offender who used or threatened with a weapon brought to the premises and captures offences, where a burglar finds premises empty and so cannot use or threaten violence. A drop-down box will provide additional guidance on the use of the “weapon carried on premises” factor.
The harm factors are worded differently from the other two offences as the factors need to be more specific about actual physical and psychological injury.
In considering the sentence ranges, the Council was said to be mindful of the potential for an increase in sentencing severity. The concern needed to be balanced against the fact this was a serious offence carrying life imprisonment. As such, there was no mention of community orders with treatment requirements as an alternative to custody. Instead, it was decided that a link to the imposition guideline should be included.
Additionally, it is proposed to add wording around consideration of a community order with an alcohol treatment requirement for the domestic and non-domestic guidelines.
The sentencing ranges for all the burglary offences have been formulated using statistical data from the Ministry of Justice’s Court Proceedings database.
The consultation opens on 9th June and runs until 1st September 2021.
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The existing assault sentencing guidelines came into effect in January 2012; at the same time, the attempt murder guideline was revised.
Following an “extensive and complex project”, new sentencing guidelines have been announced for certain violent offences, including new guidance for assaults on emergency workers.
Sentencing guidelines are referred to by any sentencing tribunal to assist in setting the correct level of sentence.
Each guideline starts with a consideration of culpability or blameworthiness. Specific factors such as a leading or lesser role place the offence in the category of high or low culpability. The level of harm is then assessed and also placed into a category. The combination of culpability and harm sets the sentencing range into which the offence falls; the placement within the sentencing range depends on the aggravating and mitigating factors.
The consultation from the Sentencing Council sought views on seven draft guidelines for common assault, common assault of an emergency worker, assault with intent to resist arrest, assault occasioning actual bodily harm, inflicting grievous bodily harm with and without intent and attempted murder.
In particular, views were sought on the following:
- the principal factors that make any of the offences included within the guidelines more or less serious;
- the additional factors that should influence the sentence;
- the approach taken to structuring the draft guidelines;
- the types and lengths of sentence that should be passed;
- differences between the current guidelines and the new, revised guidelines.
What has changed?
New guidelines take effect from 1 July 2021.
New factors have been added, including;
A high culpability factor of “intention to cause fear of serious harm, including disease transmission”.
An aggravating factor of “deliberate spitting or coughing.”
Offences of common assault are the highest volume offences covered in the violence guidelines.
Assault occasioning actual bodily harm
An aggravating factor of “deliberate spitting or coughing.”
The guideline does not include a life sentence at any starting point, as it would be for murder. The determinate sentences are high though, to reflect that culpability in attempted murder is of the highest level, even higher than required for offences of murder.
The Council decided that the guidelines should be revised to reflect the gravity of the offences properly. There had apparently been concerns that some sentences in the existing guideline were too low. In some cases, much lower than for a murder on the same facts would have been, even though the intent was to cause death (for murder, the intent is to cause grievous bodily harm or death).
Extensive testing of sentences against cases was undertaken in developing the guideline, and the Council says it is satisfied that the descriptions and placement of factors relevant to the seriousness assessment will ensure appropriate sentences.
This is an entirely new guideline coming into effect following consultation. Emergency worker includes police officers, NHS workers, those working for the fire service, prison officers and custody officers.
The elements of this offence are the same as for common assault, but there is a higher maximum sentence of 12 months. A more serious injury should be charged as a more serious assault offence.
In developing the guideline, the Sentencing Council considered whether an uplift to the common assault guideline should just be applied for assaults on emergency workers. This was dismissed due to demands from sentencers for a full guideline for the offence. However, the guideline contains an uplift approach for both aggravated offences of assaults on emergency workers and for racially and religiously aggravated offences.
All guidelines except attempt murder have a new high culpability factor of strangulation, including asphyxiation and suffocation. All guidelines will have a high culpability factor of “victim obviously vulnerable due to age, personal characteristics or circumstances.
The new guidelines contain more offence categories and starting points than previously. The reasoning behind this is to ensure appropriate assessments of culpability and harm so that proportionate sentences are imposed to reflect the seriousness of the offending.
Another substantial change is the addition of a further aggravating factor relating to those providing a public service. It is phrased as an “offence committed against those working in the public sector or providing a service to the public, or against a person coming to the assistance of an emergency worker”.
The Prison Reform Trust commented on the longer periods that individuals would be spending in custody. Their concern was that the government had not committed to further resources, which would lead to a decline in prison standards. The Council quite simply said that the provision of prion places was not a matter which should influence its determination of appropriate sentences.
Some guidelines indicate that higher sentences will be imposed, but this may or may not be the case. When the earlier guidelines were introduced, their impact was evaluated. For GBH, the guideline resulted in sentences increasing in excess of that estimated. For ABH, it was estimated that the guideline would result in less severe sentences, but they did not decrease as expected.
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Draft revised sentencing guidelines have been produced to reflect recent Court of Appeal judgments. The guidelines clarify sentencing guidance for cases where no sexual activity occurs or where the targeted child does not exist.
The rise of ‘paedophile hunters‘ and the use of undercover police officers to catch online offenders attempting to commit child sex offences has led to a rise in convictions where there is no actual victim.
The revised guidelines are subject to consultation, which will close on 13th August 2021.
The main revisions apply to offences of:
- arranging or facilitating the commission of a child sex offence.
- causing or inciting a child to engage in sexual activity.
Each of these offences carries a maximum sentence of 14 years imprisonment. The offences can be committed even when no activity occurs or is incited and when the child in question does not actually exist. This would be the case where a police officer uses a decoy or dummy account to catch sex offenders in a chat room, for example.
The draft guidelines state that where no sexual activity takes place, the court should:
- identify the category of harm on the basis of the sexual activity the offender intended; and
- then adjust the starting point downwards to reflect what actually happened.
The final sentence is decided with consideration of the offender’s culpability and the aggravating and mitigating factors specific to the offence and the offender.
Why are there new guidelines?
The reasoning behind producing a new set of guidelines concerns that current sentencing guidelines have been misinterpreted. The interpretation being that the lack of actual harm to a child is a mitigating factor, or that the harm should be considered low.
A new guideline is also proposed for the offence of sexual communication with a child. A maximum of 2 years imprisonment can be imposed for sharing images, causing psychological harm, abuse of trust or the use of threats.
Other revisions put forward are to consider the age of the offender in the case of historic offences. A young and immature individual at the time of the offence may have reduced culpability. Guidance on Sexual Harm Prevention Orders will be added to the specific guidelines. The court’s assessment of psychological harm will be assisted with detailed guidance on interpretations of “abuse of trust”, “age and or lack of maturity”, and “physical disability or serious medical condition requiring urgent, intensive or long-term treatment”.
Finally, the Sentencing Council suggests that the guidelines for child sex offences clarify that remote offending with an overseas victim, is just as serious as offending against a child in England and Wales.
As with all guidelines, they are to be followed unless the court is satisfied that it would not be in the interests of justice to do so.
How can we help?
In cases where there is more than one defendant, it is a common scenario that one or more pleads guilty, perhaps at an early stage, but others continue their case to trial. When should those who plead guilty early on be sentenced?
A question then arises as to whether those who have pleaded guilty earlier should be sentenced immediately, or at some other point.
The starting point is that a Judge should await the outcome of the other defendants trial, to be as fully appraised of the facts as possible.
In Payne (1950) 34 Cr. App. R. 43 the Court stated:
“It may be a very convenient course to sentence prisoners who plead Guilty on the first day, but that ought not to apply where several persons are indicted together and one pleads Guilty and the other or others Not Guilty. In such a case the proper course is to postpone sentence on the prisoner who has pleaded Guilty until the other or others have been tried and then to bring the prisoner who has pleaded Guilty up in the Court where the other or others have been tried and let all who have been convicted be dealt with together, because by that time the Court will be in possession of the facts relating to all of them and will be able to assess properly the degree of guilt among them.”
“It is a most inconvenient practice and it is a practice which is wrong and which ought to cease. [Courts] should be informed that where more than one prisoner is joined in an indictment and one pleads Guilty and the other or others plead Not Guilty, the sentencing of the first one should be postponed until the others have been tried and all whose guilt has been established should be sentenced together. I hope that [Courts] will take notice of the opinion of this Court and discontinue a practice which can only lead to disproportionate sentences being passed and will naturally leave a sense of grievance in the minds of prisoners.”
If a defendant who has pleaded is to give evidence for the prosecution it was the practice to sentence that defendant before giving evidence, but that rule is no longer followed, and the modern method is to default to the position of sentencing all defendants together.
Ultimately it is a matter of judicial discretion (Palmer (1994) 99 Cr. App. R. 83, CA.)
The default position remains the same for a co-defendant who is intending to give evidence on behalf of another defendant in the proceedings (Coffey (1982) 74 Cr. App. R. 168, CA.)
Where a defendant is in custody and has already likely served any sentence they would receive, this is a compelling argument for sentencing early. However, it again remains a matter for judicial discretion.
In almost all cases where a defendant has pleaded guilty, they want to be sentenced sooner rather than later, to accept the punishment and move on with their lives. Where appropriate, we will always advance a robust argument to the Court to persuade a Judge to sentence early.
How can we help?
Sentencing is a complex process. Consequently the courts are provided with guidelines by the Sentencing Council. These assist in determining the appropriate sentence for a wide, and ever-expanding, range of offences.
The guidelines provide guidance on factors the court should take into account that may affect the sentence given.
Different levels of sentence are set out based on the harm caused and how blameworthy, or culpable, the offender is.
Once the level of harm and culpability are decided, the person sentencing is provided with a sentencing range.
That range could be a fine up to a community order, or, for example, a range of two to six years’ imprisonment.
Do courts have to sentence within the “range”?
Section 125(1) of the Coroners and Justice Act 2009 makes it clear that every court must follow any relevant sentencing guideline:
“unless the court is satisfied that it would be contrary to the interests of justice to do so”.
In addition, a Judge is entitled to determine that a case falls within a higher category, without actually departing from the guideline in accordance with section 125.
An example case
Anthony Owen was convicted of burglary with intent to steal, and he was sentenced to nine years’ imprisonment.
The conspiracy was in relation to commercial premises where it was intended that four trailer units filled with tobacco would be stolen. The value of the goods would have been in the region of £12 million.
Owen was aged 64 at the time he was sentenced and had some convictions, although they were old and therefore ignored.
The maximum sentence for a non-dwelling burglary is ten years.
In Owen’s case, the judge decided it was a case of greater harm and higher culpability. This meant it was a category one offence, which provided a range of one to five years.
The Court of Appeal agreed that this was a case where it was appropriate to go outside of the sentencing levels in the guideline.
It was a serious offence, with high culpability in a number of different respects. Although Owen wasn’t a ringleader, he was integrally involved. The trial judge had been in a good position to assess his role.
Having considered all relevant factors, the Court of Appeal decided that the judge had adopted too high a starting point. A sentence of seven years and six months was substituted.
The substituted sentence was still outside of the sentencing range as although there had been no financial loss; the loss would have been substantial. The judge had also rejected the suggestion that there had been poor planning and execution. The Court of Appeal saw no reason to interfere with that assessment.
Complexity in sentencing
The above case illustrates very well just how complex sentencing can be, even when we have guidelines to assist. In some cases, we can give very accurate sentencing predictions. However, in some instances there will be a margin of appreciation that can be very wide.
We scrutinise all sentencing decisions with great care and will not hesitate to advise on appeal when the Judge has stepped outside the acceptable range. Our detailed knowledge of the guidelines and caselaw means that you can always be assured of a fair outcome.
How can we help?
The Sentencing Council is consulting on revised sentencing guidelines for several terrorism offences. This is on the face of it a surprising move given that a definitive guideline was only recently implemented.
The main legislative changes impacting the guidelines include increases to the statutory maximum sentences for some offences, and an expansion of some offences.
As a result of the increases to statutory maximum sentences, the Council is proposing consequential increases for the most serious examples of offending.
The main changes
The main changes include:
- Amendment to the culpability factors in the Proscribed Organisations – Support (section 12 Terrorism Act 2000) guideline to provide for offenders convicted of the new section 12(1A) offence of expressing supportive views for a proscribed organisation, reckless as to whether others will be encouraged to support it;
- Amendment to the culpability factors in the Collection of Terrorist Information (section 58 Terrorism Act 2000) guideline to provide for offenders convicted of the new offence of viewing/streaming terrorist information over the internet;
- Changes to the sentencing tables in the Encouragement of Terrorism (ss1 and 2 Terrorism Act 2006); Failure to Disclose Information About Acts of Terrorism (s38B Terrorism Act 2000), and Collection of Terrorist Information (s58 Terrorism Act 2000) guidelines to reflect the changes to the statutory maximum sentences;
- Additional guidance added to the Encouragement of Terrorism (sections 1 and 2 Terrorism Act 2006); Proscribed Organisations – Membership (section 11 Terrorism Act 2000); Proscribed Organisations – Support (section 12 Terrorism Act 2000); and Collection of Terrorist Information (section 58 Terrorism Act 2000) guidelines as Terrorism offences guideline, consultation 2 these offences now fall within scope for sentences for offenders of particular concern;
- Additional guidance added to the Preparation of Terrorist Act (s5 Terrorism Act 2006); Encouragement of Terrorism (sections 1 and 2 Terrorism Act 2006); Proscribed Organisations – Support (section 12 Terrorism Act 2000); and Collection of Terrorist Information (section 58 Terrorism Act 2000) guidelines as the new legislation made these ‘specified terrorism offences’ for which extended determinate sentences would apply.
In addition, the Council has chosen to make some minor changes to the Funding guideline to assist Judges to sentence cases where either the offender had knowledge that the money or property would or may be used for terrorism, or where the offender did not know or suspect that the money would or may be used for terrorism. This is an issue that has been raised in case law recently and so the Council has chosen to take this opportunity to assist sentencers by providing greater guidance.
What will be the impact on sentence length?
Overall, under the draft guideline, sentences are anticipated to increase in some cases, however any increase in sentence lengths will be a result of the recent legislative changes, rather than the guideline. The revised sentencing guideline therefore aims to ensure that future sentencing for terrorism offences is in line with the intention of Parliament when it increased the maximum penalties for some of these offences, while at the same time ensuring consistency of sentencing for these offences.
As ever, we will remain vigilant and ensure that all guidance is properly adhered to. As the sentencing process becomes ever more complex our advocates are careful to guard against inadvertent error.
The new guidelines are expected to come in to force around April 2020.
How we can assist
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
New sentencing guidelines for public order offences come in to force for adults sentenced on or after 1 January 2020.
In August 2008, the Sentencing Guidelines Council published Magistrates’ Court Sentencing Guidelines (MCSG). The guidelines covered a number of public order offences; the offence of affray and summary offences relating to threatening and disorderly behaviour provided for by section 4, section 4A and section 5 of the Public Order Act 1986. There was also a brief reference to violent disorder offences which may be sentenced in magistrates’ courts. This guidance did not include guidelines for sentencing these offences in the Crown Court. Nor did it include guidance on sentencing the public order offences of riot, or offences relating to stirring up racial or religious hatred and hatred based on sexual orientation.
The offences covered by the public order guideline are relatively high in volume. There were 18,600 offenders sentenced for the public order offences covered by the guideline in 2018. The volume of some offences is however relatively low. In relation to the offence of riot only 30 offenders have been sentenced between 2008 and 2018. Around 300 each year are sentenced for violent disorder, and 2400 for affray. The rest being sentenced for the lesser offences.
Will the new guideline affect sentence length?
For threatening behaviour and disorderly behaviour with intent, there have been some reductions to sentencing ranges and starting points for the different levels of offence seriousness, compared to the MCSG. It is possible that the decrease to sentence levels in the guideline could lead to a decrease in sentencing severity for these offences, whereby some individuals who currently receive a custodial sentence may now receive a community order. However, it is also possible that much of the decrease in sentencing severity could come from offenders currently receiving suspended sentence orders now receiving community orders. Therefore there is an upper estimate that the guideline will not have an impact on the requirement for prison places or probation resources, and a lower estimate that the guideline could lead to a reduction in the requirement for up to 30 prison places per year and a small increase in the use of community orders.
Racially aggravated offences
For racially or religiously aggravated threatening behaviour and racially or religiously aggravated disorderly behaviour with intent, sentencers are first asked to sentence the basic offence. Once that is done, they should increase the sentence considering the level of racial or religious aggravation involved. This ‘uplift’ approach reflects Court of Appeal guidance on how aggravated offences should be sentenced. It also aligns with current practice in relation to assessing the level of aggravation present in offences. This is the same process as used in the Council’s Arson and Criminal Damage guideline. That consultation stage research found that there was a risk that the guideline could result in slightly higher sentences. It is therefore possible that the guideline could cause an increase to sentencing severity.
However, some of the starting points and sentence ranges for the basic offence are lower than under the current guideline. This could offset these potential increases. Therefore there is a lower estimate that the guideline will not have an impact on the requirement for prison places or probation resources, and an upper estimate that the guideline could lead to a requirement for up to 40 additional prison places per year and a small decrease in the use of community orders.
For the offences of disorderly behaviour and racially or religiously aggravated disorderly behaviour, the maximum sentence is a fine. Therefore the guideline will not have an impact on prison and probation resources. For the offence of disorderly behaviour, the guideline introduces a new higher category of offending. This has a higher level of fine than in the existing MCSG guidance (a Band C fine). The guideline may therefore increase fine values for this offence. Also, because a fine is included for all levels of offending for racially or religiously aggravated disorderly behaviour – whereas data suggests that around 12 per cent of offenders sentenced for this offence received an absolute or conditional discharge in 2018 (after any reduction for guilty plea) – it is also possible that the guideline could increase the number of offenders sentenced to a fine for this offence.
As ever, our advocates will be vigilant to ensure full adherence to the guideline and act to prevent any ‘sentence creep’ which is something that we have observed with other guidelines.
How we can assist
(Image credit: Tomasz Iwaniec; https://creativecommons.org/licenses/by/2.0/ )Read More