On 1 January 2021, eight new sentencing guidelines came into force. The new guidelines are applicable to offenders sentenced in the Crown Courts and Magistrates Courts in England and Wales.

For the first time, Judges and Magistrates in England and Wales will have dedicated guidelines for sentencing complex firearms offences with several of them carrying maximum sentences of 10 years or life and some requiring a minimum sentence of five years.

These guidelines must be followed unless a Judge or Magistrate consider it is not in the interests of justice to do so.

The new guidelines apply to the following offences:

• 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 intent
• Manufacture/sell or transfer/possess for sale or transfer/purchase or acquire for sale or transfer prohibited weapon or ammunition

Firearms sentencing prior to the introduction of the guidelines

Up until 1 January 2021, there were no sentencing guidelines for firearms offences in the Crown Court and only one existed in the Magistrates’ court.

Courts were therefore passing sentences in respect of firearms matters by considering the four questions asked by the Court of Appeal in the case of R v Avis (1998):

1. What sort of weapon was involved?
2. What use, if any, was made of the firearm?
3. With what intention, if any, did the defendant possess the firearm?
4. What is the defendant's record?

R v Sheen and Sheen added two further questions to be considered when passing a firearms sentence:

1. Where was the firearm discharged and who and how many were exposed to danger by its use?
2. Was injury or damage caused by the discharge of the firearm and how serious was it?

R v Wilkinson and others (2009) reaffirmed the principles as applied in R v Avis (1998) specifically, that where the offender was 18 years or over at the date of conviction there would be a minimum sentence of 5 years imprisonment unless exceptional circumstances applied. 3 years imprisonment was to be considered for an offender aged 16 years but under 18 years old.

Why were new guidelines needed?

The Sentencing Council undertook research and this suggested that there have been apparent disparities in sentence outcomes based on ethnicity. The Sentencing Council undertook a consultation from 9 October 2019 to 14 January 2020 in respect of the eight guidelines to the cover the most commonly sentenced firearms offences and to address the disparities.

The Sentencing Council identified that a number of areas needed to be brought up to date and took into account criticisms relating to the four questions set out in R v Avis when passing sentences. The criticisms mainly related to the fact that the four questions allow the Courts far too much discretion meaning that there are inconsistencies across the country in respect of sentences passed. The Council found a strong indication that Black, Asian and other ethnicity offenders were dealt with more severely by the courts or firearms offences than White offenders.

The Sentencing Council concluded that sentencing guidelines would provide some helpful clarification in this difficult area of sentencing. They state that they have had regard to the purposes of sentencing and aim to provide sentencers with a structured approach when sentencing firearms offences, to ensure that sentences are proportionate to the offence committed.

Sentencers are advised to be aware of the evidence of disparity and should remind themselves of the section in the Equal Treatment Bench Book which considers BAME individuals and the criminal justice system.

Next steps

It remains to be seen how these sentencing guidelines will change the sentences that are passed in firearms offences.  In addition, a further set of guidance is to be consulted on next year in respect of firearm importation offences.

How can we help?

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