Law Society response to the Sentencing Council Consultation on a Draft Bladed Articles and Offensive Weapons Guideline January 2017 The Law Society 2017 Page 1 of 6
Law Society response to the Sentencing Council Consultation on a Draft Bladed Articles and Offensive Weapons Guideline Introduction The Law Society of England and Wales ("The Society") is the professional body for the solicitors' profession in England and Wales, representing over 170,000 registered legal practitioners. The Society represents the profession to parliament, government and regulatory bodies and has a public interest in the reform of the law. The Society welcomes the opportunity to respond to this consultation. This response has been prepared on the Society's behalf by a sub-committee formed of members of its specialist Criminal Law Committee. The Committee is drawn from a wide range of criminal law backgrounds, including a number of prosecution and defence solicitors. Summary The Society notes that the guideline for adults follows the same structure and format as the Council s previous published guidelines, which we welcome. Practitioners have come to know this familiar pattern and the consistency across guidelines makes them very user friendly. Following the same structure of using the culpability and harm matrix to assess the appropriate staring point, then adjusting this to take into account aggravating and mitigating factors. We note also the different approach and structure that has been adopted in the youth guideline which, again, we consider appropriate. Responses to Consultation Questions In this section of our response we set out our views as to the consultation questions posed. Q1 Do you agree with the proposed approach to the assessment of culpability? Yes, we generally agree, subject to the following caveat. We are concerned about the classification of possession of a blade article, where not produced, as falling into level A - high culpability. We have in mind cases, which are often charged under s139, where a knife is, for example, found in a vehicle during an unrelated search and where culpability is, in our view, less than that arising in a situation where a knife is produced, or is being carried on the person. We are not entirely convinced that this scenario would meet the criteria for level C lesser culpability where possession falls just short of reasonable excuse, or indeed whether this is a helpful way of expressing this for the benefit of lay magistrates. Q2 Are there any culpability factors that should be added or removed? No, subject to our comment above on possession of a bladed article not produced. Q3 Do you agree with the proposed approach to the assessment of harm? Yes, we do agree with the proposed approach to the assessment of harm. Q4 Are there any harm factors that should be added or removed? No, we cannot think of any additional harm factors, and all factors listed are appropriate. Q5 Do you have any comments on the sentence ranges and starting points? The Law Society 2017 Page 2 of 6
We consider that the starting point and range for a High Culpability and Low Harm case, of 3 months and a high level community order, or 6 months custody, does seem high. Our example in question 1 would fall into a starting point of 3 months custody, where currently a second possession of a bladed or offensive weapon only carries a mandatory minimum sentence of 6 months. Q6 Do you agree with the aggravating factors? Please state which, if any, should be removed or added. We do not believe any should be removed from the non-exhaustive list of aggravating factors, but would suggest that a factor relating to the offence being committed in a domestic context would be appropriate to include: for example offence committed in the context of domestic or familial violence or controlling behaviour, where the perpetrator perceives themselves to be in a position of strength or influence over the victim, as in Case Study A. Q7 Are there any mitigating factors that should be added or removed? No, we cannot think of any additional factors reducing seriousness or reflecting personal mitigation, and all factors listed are appropriate. Q8 Does the section on minimum sentences (above) provide adequate explanation of the provisions? As a summary of the provisions it is an adequate explanation, but we have three comments. Firstly, we would suggest that it would be prudent for the guideline to clearly state that the two strikes minimum sentence will apply only where the second offence was committed on or after 17 July 2015. While we appreciate that most experienced practitioners will already be aware of the legislation, in our view there should be more specific references (perhaps as footnotes) to the legislative provisions so that all practitioners can easily direct themselves to the relevant legislation, for example, section 28 of, and Schedule 5, to the Criminal Justice and Courts Act 1988. Secondly, there should also be more clarity around the application of the guideline where the second offence is a threatening offence, because the convictions for those offences carry the same minimum sentences; otherwise this could lead to an automatic doubling up, which may not be in the interests of justice. Finally, while it is more an issue for the allocation process, in our experience some Magistrates courts decide that as six months is the minimum sentence, all cases need to be committed for sentence, whereas some are persuadable that suspending a sentence in the Magistrates court is appropriate. Q9 Do you agree that the guidance on minimum sentences is at the right stage of the sentencing process? Yes, we agree. Q10 Do you consider that the sentence imposed in Case Study A is proportionate? If you do not agree, please tell us what sentence should be imposed and why. We consider that the sentence imposed in Case Study A is appropriate, given the domestic violence context and the intended harm. This supports our suggestion that there should be an additional aggravating factor relation to the domestic/familial violence context, as we The Law Society 2017 Page 3 of 6
outline above in answer to question 6. Q11 Do you agree with the proposed approach to the assessment of culpability? Yes, we agree with the proposed approach. Q12 Are there any culpability factors that should be added or removed? No, we cannot think of any additional culpability factors, and all factors listed are appropriate. Q 13 Do you agree with the proposed approach to the assessment of harm? Yes, we agree with the proposed response, but we consider it would be appropriate to add to bullet point one in Category 1, prolonged incident, the words persistent, or repeated incident. Q14 Are there any harm factors that should be added or removed? Other than the additional words suggested in our answer to the preceding question, there are no other harm factors that we consider should be added and those set out are appropriate. Q15 Do you have any comments on the sentence ranges and starting points? We note that the proposed sentencing range and starting points significantly increase the number and length of custodial sentences likely to be imposed, and will result in an increase in either sendings for trial or committals for sentence. Q16 Do you agree with the aggravating and mitigating factors? Please state which, if any, should be removed or added. We do agree with the aggravating and mitigating factors set out, subject to our previous comment on the need to include domestic/familial violence, as in our answer to question 6 above. Q17 Does the section on minimum terms (above) provide adequate explanation of the provisions? Yes, but subject to our comments in relation to question 8 above. Q18 Do you agree that the guidance on minimum terms is at the right stage of the sentencing process? Yes, we agree it appears at the correct stage in the process. Q19 Do you consider that the sentence imposed in Case Study B is proportionate? If you do not agree, please tell us what sentence should be imposed and why. We consider that the sentence arrived at appears high, and would take the case outside magistrates sentencing powers, whereas currently many similar factual situations would fall within the magistrates powers, or would be more borderline than the Case Study outcome suggests. Whilst threats were made by the offender, no blows were struck, nor attempted. The defendant has no previous convictions. In our view it would be hard to justify a sentence of 12 months on these facts. It may justify a suspended sentence. The Law Society 2017 Page 4 of 6
Q20 Does the section on minimum sentences (above) provide adequate explanation of the provisions? Yes, but again subject to our comments in relation to question 8 above. Q21 Do you agree that the guidance on minimum sentences is at the right stage of the sentencing process? Yes, we agree it is at the right stage in the process. Q22 Do you agree with the harm and culpability factors proposed at step one which indicate a non-custodial sentence? If not, please specify which you would add or remove and why. Yes, we do agree with the harm and culpability factors which would indicate a non-custodial sentence. Q23 Do you agree with the harm and culpability factors proposed at step one which indicate that the starting point should be a custodial sentence? If not, please specify which you would add or remove and why. Yes, we do agree with the harm and culpability factors, subject however to our concern set out in answer to question 1 as to possession of a bladed article not produced. Q24 Do you agree with the aggravating factors for this offence? Please state which, if any, should be removed or added. We agree with the non-exhaustive list of aggravating factors set out in the youth guideline. Q25 Are there any offence-specific mitigating factors that should be added? We are not aware of any further additional offence-specific mitigating factors. Q26 Are there any offender-specific mitigating factors that should be added? Not that we are aware of. Q27 Do you agree with the inclusion of the Review the Sentence step? Please state what, if anything, should be removed or added. We agree with the inclusion of the review the sentence step. We would suggest that it includes the word proportionate as well as appropriate, so perhaps should read: to ensure it is the most appropriate and proportionate one for the young offender Q28 Do you consider that the sentence imposed in Case Study C is proportionate? If you do not agree, please tell us what sentence should be imposed and why. Yes, we agree that the sentence arrived at in Case Study C is proportionate. Q29 Are there any equality or diversity matters that the Council should consider? Please provide evidence of any issues where possible. We are not aware of any such matters specific to this particular type of offence. The Law Society 2017 Page 5 of 6
Q30 Do you have any further comments you wish to make about any of the guidelines? As a general observation, the draft guidelines appear to increase the overall sentences for bladed articles and offensive weapons offences, both as to number and length, quite significantly, as is acknowledged in the Impact Assessment. Some starting points appear to be doubled, or even trebled, when compared with the current guidance. This is especially significant in the light of recent reports of a significant percentage of young people carrying knives, particularly in London (see, for example: http://www.bbc.co.uk/news/uk-englandlondon-37412508). Just after the Criminal Justice Act 1988 came into force, practitioners speculated that quite inoffensive bladed articles, such as the butter knife carried in a lunchbox, would be caught by s139. In due course, in Brooker v DPP (2005) EWHC 1132 (Admin) the court found that a blunt edged butter knife was indeed caught by s139, establishing that the item need not be sharp but must have a blade. This has troubled defence practitioners. Also problematic, in our view, is the case-law on locked bladed knives which, even where the blades is under 3 inches, fall within s139 but, was it a non-lockable folding pocket knife, would be legal. Most knife users say that the reason they prefer a lockable knife is for their safety, so it does not close when in use. The case of Harris v DPP (1992) 96 Cr App R 235 and other cases established this principle. The increase in sentences for offences like this caught in the draft guidelines is of concern, and all the more so because most of these cases would be dealt with in magistrates courts where, in our experience, sentencing guidelines are generally applied with less discretion. The Law Society 2017 Page 6 of 6