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.
[Image credit: © Metropolitan Police ]Read More
Search warrants; reform to prevent unlawful searches
The Law Commission has recommended reforms that it says will reduce the number of unlawful search warrants being issued, and to assist in the collection of evidence and investigation of crime.
Currently, a police officer or other investigator applies to a magistrate or a judge for a search warrant. If granted, a warrant grants legal authority to enter premises and search for specified material.
The Law Commission says that the laws governing search warrants are unnecessarily complicated, inconsistent, outdated and inefficient.
What recommendations are being made?
- Strengthening powers; extending the availability of warrants that allow multiple entries to a property, and allowing all properties controlled by an individual to be searched. A police constable will be permitted to search a person found on the premises under the search warrant. The NHS Counter Fraud Authorities will also be given the ability to apply for search warrants.
- Improving procedure; the aim is to reduce the number of mistakes and unlawful warrants. There would be a standard entry warrant application form and a template for entry warrants. There is also a recommendation for an online search warrants application portal.
- Electronic evidence; ensuring officers can access electronic evidence and copy required data whilst on site, possibly to include data stored remotely. Safeguards should be included to ensure that any unneeded date is quickly deleted, and devices returned as soon as is practical.
- Improving safeguards; for example, those being investigated would be given a notice of their powers and rights whilst their property is searched. Non-police investigators would be subject to similar safeguards as the police. There would be clarification of when, and in what form, a search warrant should be given to an occupier, who should also be informed they have the right to ask a legal representative to observe the execution of the warrant.
Errors
Around 40,000 search warrants are issued every year. In 2016 review by the National Crime Agency found that 78.73% of investigations had defective warrants. Of that number, 8.2% had significant deficiencies.
Journalistic material
The Society of Editors has criticised the recommendation that the government review rules on search warrants for obtaining journalistic material.
Although the Law Commission concluded that confidential journalistic material should only be obtained in very limited circumstances, it added that the government should consider whether the law struck the right balance between the competing interests at play and whether the law ought to be reformed.
The Police and Criminal Evidence Act 1984 provides special protection for journalistic material, and the Society of Editors argues that the law around police seizure of journalistic material needs strengthening rather than watering down. This is argued on the basis that journalists need to have confidence that their material remains protected so that they can guarantee source protection in fulfilling a public interest role.
How can we help?
If a search warrant is unlawfully executed, it does not automatically mean that any evidence obtained cannot be used. We can advise you as to the options and make the necessary applications to the court on your behalf.
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.
[Image credit: “Day 255 – West Midlands Police – Searching using torch (Part of an officers Personal Protective Equipment Kit.” by West Midlands Police is licensed under CC BY-SA 2.0] Read More