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As the police continue to tackle possession of knives on the streets (‘Crackdown to get Knives off Street’: http://news.sky.com/story/1637700/exclusive-crackdown-to-get-knives-off-streets) it is worth reminding ourselves that from 17 July 2015 minimum sentences for individuals aged 16 and over who are convicted of a second (or subsequent) knife or weapon related offence were imposed.
The offences covered by the change in legislation are:
The date of the second offence must be on or following 17 July 2015, however the date of the first is irrelevant. From that date, convictions for these offences carry a minimum custodial sentence of:
The effect of an early guilty plea may still give cause for reduction in the sentence length even where the minimum sentence exists.
In a similar vein to other minimum sentences there is an arguable exception to the rule, namely that if there are particular circumstances relating to either this offence, the previous offence, or the offender which would make it unjust in the circumstances to impose the sentence the court does not have to follow the minimum sentence.
As practitioners regularly dealing with these offences will be all too familiar, addendum sentencing guidelines which outline the effect of the decision in R v Povey  EWCA Crim 1261 to sentencing the section 1 and 139 offences outlined above exist in relation to knife crime. In short the addendum guidelines provide that the starting point should ordinarily be at the most severe end of the scale where the offensive weapon is a knife, resulting in many starting points for the offence of simple possession been 12 weeks custody. The addendum guidelines will continue to have effect in relation to first time offenders. However as many first time offenders will often have custodial sentences suspended, the likelihood of an immediate custodial sentence for repeat offenders rises. The sentence may also increase if the suspended sentence is activated. Consequently planned, clear and targeted mitigation will be required to avoid a lengthy custodial sentence. In relation to individuals who commit any of the offences with a knife in ‘dangerous circumstances’ the addendum guidelines in any event (whether a first time offender or not) suggest a sentence in excess of 6 months. Consequently the greatest impact the minimum sentencing will be on individuals who are repeat offenders of possession but not in dangerous circumstances.
Given that these offences simply require the Crown to prove possession, with the reverse burden lying on the Defendant to show lawful authority or reasonable excuse, the minimum sentence could well result in an increased number of custodial sentences for people who carry a knife or offensive weapon without reasonable excuse. However it is important to realise that for the offence to be committed there does not need to be an ulterior motive for carrying the knife or offensive weapon, i.e. it does not need to be suggested that it was going to be used for an unlawful purpose. Consequently those who simply have no reasonable excuse for the knife to be in their possession, but at the same time were not intending to use it unlawfully in any way, could well face a custodial sentence. The question must be posed whether this is the best use of prison spaces. Tackling knife crime is an important issue, but we must be careful about how we define ‘knife crime’ and whether there is a gap between the public and media’s perception of knife crime, and the suggestion of an ulterior motive, and the reality of these offences which many could find themselves charged with.
Posted by Richard Padley on 14 April 2016 at 17:18