New Sentencing Guidelines – Firearms Offences (2021): Clarity or Confusion? Blog By Rosanna Martin
Published on 19/02/2021
On the 9th October 2019, the Sentencing Council launched a public consultation on proposed sentencing guidelines for the most commonly sentenced firearms offences to be used in both the Crown and Magistrates’ Courts. Following completion of the consultation period in early 2020, the sentencing council launched eight new sentencing guidelines in December 2020. These new guidelines came into effect on 1st January 2021.
In this post I will explore some of the changes made, if any, and consider whether the new guidelines help to clarify the existing legislation and case law or provide room for further confusion.
Why do we have new guidelines?
Prior to these guidelines there were no sentencing guidelines for firearms in the Crown Court and only one in the Magistrates Court, that of carrying a firearm in a public place. This raised concerns that there was inconsistency in sentence for these offences. In particular, a concern there was disparity in sentence based on ethnicity, where certain ethnic groups were more likely to carry drastically different sentence to other ethnic groups even where facts are similar. The Sentencing Council highlighted that the legislation in this area is complex and confusing and new guidelines would help simplify sentencing in this area, thus improving consistency.
The previous position
The current law that regulates firearms is The Firearms Act 1968 and primarily consolidated existing firearms legislation. Since then we have seen several pieces of legislation that amend and add to existing firearms offences. For instance, section 5 (i.e. prohibited weapons) has been significantly amended, going from only two prohibited ‘weapons’ in the 1968 Act to eighteen ‘weapons and ammunition’ that are prohibited today. Although the 1968 Act and subsequent amendments outline the offences, the classification of the offence and the maximum punishment, it was not until the case of R v Avis  1 Cr. App. R. 420 that the way in which the Courts determine the appropriate level of sentence was considered.
In Avis, Lord Chief Justice Bingham emphasised the unlawful possession and use of firearms is a ‘grave source of danger’, considering they may be used to take life or cause serious injury. His concern being that sentences for firearms offences had been far too lenient and did not properly reflect this gravity. This is despite Parliaments expressed discouragement of firearm possession and use by increasing maximum sentences. Consequently, Lord Bingham CJ provided for a series of questions the Court should ask itself in deciding the offence seriousness. These are:
- What sort of weapon is involved? = Is it genuine or imitation? Loaded or unloaded? Ammunition available or not?
- What use, if any, was made of the weapon? = The more prolonged, premeditated and violent the use the more serious the offence is likely to be.
- What intention, if any, did the defendant possess or use the firearm? = such as intention to endanger life, cause fear of violence, resist arrest and/or commit an indictable offence.
- What is the defendant’s record? = seriousness is increased if the offender has an established record of committing firearms offences or crimes of violence.
Lord Bingham CJ did voice the opinion there should not be ‘restrictive sentencing guidelines’, as the appropriate level of sentence for a firearms offence will depend on all the facts and circumstances of the offence. Instead he simply stated that a custodial sentence should be imposed for firearms offences, even if there is a guilty plea and no previous convictions. We see this position is now enshrined in law through section 287 of the Criminal Justice Act (CJA) 2003, which introduced a five-year mandatory minimum sentence for adults for some firearms offences. The Sentencing Act (SA) 2020 consolidates this position at section 311, stating that for certain firearms offences (contained in schedule 20) the court ‘must’ impose a custodial sentence unless the court is of the opinion there are ‘exceptional circumstances which relate to the offence or offender and justify not doing so’.
Lord Bingham was evidently reluctant to restrict a Judge’s discretion in sentencing of firearms, only suggesting that the custodial terms should be lengthy for breaches of sections 4, 5, 16, 16A, 17(1)&(2), 18(1), 19, or 21 and the way to decide length was asking the above questions. We will see shortly it is these offences, among others, that we coincidentally have new sentencing guidelines for.
In R v Sheen  EWCA Crim 2461 two further questions were added to the Avis guidelines. These are:
- Where was the firearm discharged? = and who/how many were exposed to its danger
- Was any injury or damage caused by the discharge = if so, how serious was it?
The Courts also considered the guidelines in R v Wilkinson (2009) EWCA Crim 1925 and concluded they needed further amplification to consider the largescale importation and/or manufacture or sale and distribution of firearms. The Court of Appeal concluded that criminals involved in the above offence/s should inevitably receive lengthy determinate or indeterminate sentences. This was confirmed in R v Stephenson (2016) EWCA Crim 54, where life imprisonment for dealing firearms should always be considered and in any event impose lengthy determinate sentences in relation to the role played.
Consequently, we see a variety of different legislation and case law providing some broad guidelines on how to address sentencing of firearms offences. The very nature of case law means that the level of sentence depends on a Judge’s interpretation of the case law and the facts of the case. For instance, there is a large gap between a maximum of life imprisonment for some offences and the minimum of 5 years, leaving plenty of wiggle room. As a result and despite Lord Bingham’s reluctance to limit Judge’s discretion, we have seen criticism that this discretion is far too wide and creating too many inconsistencies. But do the new guidelines provide a platform to improve consistency by clarifying and simplifying the existing law? Or do the new guidelines provide for something new, creating room for further debate and therefore more inconsistency?
The new guidelines do not cover every offence in the Firearms Act, only the most common. The eight new guidelines are as follows:
- Possession, purchase or acquisition of a prohibited weapon or ammunition (s. 5(1) & (1A));
- Possession, purchase or acquisition of a firearm/ammunition/shotgun without a certificate (s. 1(1)(a) & (b) and s.2(1));
- Possession of a firearm or ammunition by person with previous convictions prohibited from possessing a firearm or ammunition (s.21(4));
- Carrying a firearm in a public place (s.19);
- Possession of firearm with intent to endanger life (s.16);
- Possession of firearm or imitation firearm with intent to cause fear of violence (s.16A);
- 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 (s.17(1)&(2) and s.18);
- Manufacture/sell or transfer/possess for sale or transfer/purchase or acquire for sale or transfer prohibited weapon or ammunition (s.5(2A)(a), (b), (c) & (d).
To determine the offence category there is the usual assessment of culpability and harm. Much more unusual however is the two-stage approach to culpability. It is important to note that the new guidelines for the final four offences (sections 16, 17, 18 and 5A) dispenses with ‘type of weapon’ completely and only considers the culpability factors. In considering the first four guidelines, to assess culpability the Court should consider the ‘type of weapon’ and then ‘other culpability factors’.
In deciding the type of weapon, the first four guidelines differ slightly according to the offence. In relation to an offence under section 5(1) and (1A), there are three types of weapon in the guidelines, these are:
- Weapon that is ‘designed’ to be capable of killing two or more people at the same time or in rapid succession = and ‘normally’ includes the prohibited weapons at section 5(1)(a) to (ae) and 5(1A)(c).
- All other weapons falling between type 1 and 3 = and normally includes the prohibited weapons at section 5(1)(f) and 5(1A)(a) and/or ammunition under section 5(1)(c) and 5(1A) (b), (d) to (g).
- Weapon that is not designed to be lethal = and normally includes the prohibited weapon at section 5(1)(b) and/or a small quantity of ammunition.
The Court should then weigh all the ‘other culpability factors, which are:
- High Culpability = If the weapon was used for a criminal purpose, they intend to use it for a criminal purpose or are reckless as to whether it would be used for criminal purpose.
- Medium Culpability = Weapon produced or used (where not for a criminal purpose), Firearm loaded, held with compatible ammunition or charged stun gun or, intends weapon to be used and/or reckless as to whether it would be used.
- Lower Culpability = no use or intention to use.
This two-stage process seems to simply capture the first three of Lord Bingham’s questions, that of the sort of weapon used, the use of the weapon and intended use of the weapon. On the one hand it does look like the guidelines are just clarifying what the case law, specifically Avis, has already provided for and putting it in one place for our ease of use.
On the other hand, we can see there is more detail and a slight twist in terminology in these guidelines than what Lord Bingham’s proposed. Where Lord Bingham seemed to focus on the ‘sort’ of weapon being the weapons possible capability (i.e. a weapon that is loaded, genuine and/or has available ammunition is ‘capable’ of killing two or more people), the new guidelines ‘type’ of weapon looks at what it is ‘designed’ to do (i.e. a weapon that is designed to be capable of killing two or more people). This implies we need to delve into the minds of the manufacturer of the weapon in question and ask whether it was made to kill two or more people, not whether it can do so. It could be argued that a weapon that is capable of killing two or more people, may not have been designed to kill two or more people? This is reflected in the guidelines for the next three offences, where there is a focus on the ‘nature’ of the weapon, not whether it was loaded or in working order.
This is further complicated with use of the word ‘normally’, implying that even though all the weapons listed in that type would normally fall in that category, they might not. Although this allows for flexibility and provides for a Judge’s discretion, it raises the question of when does the situation arise where a weapon that normally falls in that type does not fall in that type. Similarly, the guidelines outline the fact the court must impose the minimum term unless there are ‘exceptional circumstances’ but provide limited guidance on what is considered an exceptional circumstance. Where the situation arises where a firearm does not fit in that type or where there are exceptional circumstances, it begs the question of how are these guidelines then used to decide the final sentence?
As such, are these new guidelines really clarifying Avis or have they created something new? Even if there is nothing new, does this really simplify existing case law or complicate it further? Although the phrase ‘designed to’ or ‘constructed to’ has been considered in a variety of case law regarding the definition of ‘firearm’, by the need to probe the case law does this not defeat the object of the new guidelines in their aim for simplification and to reduce inconsistencies?
Once the culpability category is decided, the Court then need to decide the level of Harm done. For the first four offences these are the same, ranging from serious alarm or distress caused and/or a high risk of death/serious harm/disorder, to no or minimal alarm or distress caused. Section 16, 16A, 17 and 18 range from severe physical or psychological harm caused to simple alarm or distress caused. Section 5A regards the scale and nature of the enterprise, considering the number of weapons, the duration of the operation, connections to organised crime and the geographic range.
In deciding the risk of harm as above, the Court must have regard to the location of the offence and the number of people exposed to it. This seems to preserve the questions in Sheen, regarding the injury or damage caused by the discharge and the location of where the firearm was discharged, further suggesting the new guidelines are clarifying existing case law. However, the guidelines also state that in deciding the harm caused to consider the vulnerability of people exposed, especially children, and the accessibility and visibility of the weapon. Details that are not mentioned in the existing case law. Although details that are already well developed and understood in existing sentencing guidelines, begging the question as to whether these further details would complicate the matter of harm caused.
The other questions posed by Lord Bingham seem to be replicated in aggravating and mitigating factors. For example, aggravating features include previous convictions, factors surrounding the use of imitation firearms and ammunition/amount of ammunition kept with the weapon. Again, we see further additions not seen in the case law, such as: the fact the firearm was disguised and any modifications making it more dangerous.
The new guidelines are quite considerable in the number of offences they cover and the level of detail. The idea being they should simplify and clarify the current case law, putting it into one place so that inconsistency of sentence can be minimised, whilst also ensuring that Judge’s discretion and flexibility is maintained. However, the new guidelines are comprehensive: providing an unusual two stage culpability test, confusing terminology and specifying far more detail than the existing case law. It is therefore yet to be seen whether these ‘new’ guidelines really clarify or will rather confuse.
Attorney General’s Reference (No. 49 of 2009); R v Williams  EWCA Crim 1925
Attorney General’s Reference (Nos 128 to 141 of 2015 and 8 to 10 of 2016); R v Stephenson  EWCA Crim 54
R v Avis  1 Cr App R 420
Firearms Act 1968
Criminal Justice Act 2003
Sentencing Act 2020
Rosanna Martin (Pupil 12CP Barristers)