In its report the Justice Committee considers three sets of draft sentencing guidelines: possession of a bladed article or offensive weapon, threatening with a bladed article or offensive weapon, bladed articles and offensive weapons — youths.
The 'threatening' offences all carry mandatory minimum sentences of six months' imprisonment for an adult or four months' Detention and Training Order for a youth aged 16 or 17. In 2015, in response to public concerns about knife crime, similar mandatory sentences were introduced for second or subsequent possession offences.
Sentencing Council's analysis
The Sentencing Council's analysis of court data indicates a steady increase in the use and length of custodial sentences for possession offences over the last decade. The Council expects the new adult guidelines to increase the proportion of offences that result in custodial sentences but it has been unable to estimate with any certainty how sentencers' behaviour may change.
Predicted increase in prison population
The Committee appreciates the difficulties in making such predictions, but the prospect of a substantial increase in the number of custodial sentences is a concern. The report recommends that the Council ask the Ministry of Justice to consider how any predicted increase in the prison population might be accommodated.
The report also recommends that:
- Analysis of the impact of legislation should be included in the Council's annual reports on sentencing factors. The report for 2016/17 should consider the impact of mandatory custodial sentences for offences involving bladed articles and offensive weapons.
- Possession of a knife should remain an offence of high culpability, as stated in the draft guideline. However, the culpability factors proposed in the adult possession guideline should be reconsidered, taking into account observations from respondents about the need for clarification.
- Consideration be given to extending the category ranges so that the upper limits for sentencing these offences are closer to the statutory maximum penalties.
- The Council should review the proposed lists of aggravating and mitigating factors to clarify descriptions, to avoid the possibility of 'double-counting' and to add 'remorse' as a mitigating factor.
- The youth guideline should remind sentencers of their legal obligations towards children who offend, particularly under section 44 of the Children and Young Persons Act 1933.
- To avoid confusion, there should be more consistency between the proposed aggravating and mitigating factors in the youth guideline and those in the overarching principles for sentencing youths. 'Offender in a group or gang' should be limited to situations where the offender was operating within a group or gang and had an active role in committing the offence.
The Sentencing Council for England and Wales is an independent non-departmental body of the Ministry of Justice, set up to promote greater transparency and consistency in sentencing, whilst maintaining the independence of the judiciary. Its primary role is to issue guidelines on sentencing, which the courts must follow unless it is in the interests of justice not to do so. The Council also assesses the impact of guidelines on sentencing practice and promotes public awareness of sentencing practice in the magistrates' courts and the Crown Court.
Under section 120 of the Coroners and Justice Act 2009, the Council is required to publish sentencing guidelines in draft before they are finalised. Section 120(6) of the 2009 Act lists the Justice Committee as a statutory consultee on draft guidelines. The Council must also consult the Lord Chancellor and any person that the Lord Chancellor directs should be consulted, together with such other persons as the Council considers appropriate.