Tougher sentences for possession of offensive weapons have been on the cards for quite some time; a consequence of the influential guideline authority of Povey  EWCA Crim 1261
Many saw Povey to be a political statement as much as a legal statement. A shot across the bow of ineffective government policy on the issue of knife crime; a brazen statement that possession of offensive weapons is too commonplace and sentences must serve as an adequate deterrent. Too many of these offences were dealt with summarily by the issuing of cautions. The starting point after Povey for a low-level offence was effectively 12 weeks’ custody. Some may recall, shortly after Povey, the Council issued a note dated 1 August 2008, indicating that courts would be notified when to return to the published guidance – once the issue of knife crime and use of offensive weapons have been diminished from their peaks. This guideline marks the first development in this area since Povey.
In the new Guideline, however, in both category A and category B offences, the lowest starting point is a Low-Level Community Order. Certainly not the 12 weeks custody envisaged by the Court of Appeal in Povey.
There is already a mandatory minimum sentence of six months custody set by law for offenders who use any type of weapon to threaten. As the guideline gives the highest sentences to those offenders who threaten with knives or highly dangerous weapons, these offenders will always receive sentences greater than six months. The combination of the legislation and the guideline may therefore mean that there is an increase in sentences received by some offenders convicted of these offences.
Usefully, the Guideline also provides some assistance as to when it may be just to disapply the statutory minimum sentences applicable to this area.
Additional guidance has been included as to what constitutes a “highly dangerous weapon”. This has been set out as follows: “An offensive weapon is defined in legislation as ‘any article made or adapted for use for causing injury, or is intended by the person having it with him for such use’. A highly dangerous weapon is, therefore, a weapon, including a corrosive substance (such as acid), whose dangerous nature must be substantially above and beyond this. The court must determine whether the weapon is highly dangerous on the facts and circumstances of the case.”
The inclusion of corrosive substances explicitly within these guidelines is arguably not much of a development. It reflects society’s horror at the use of such substances to cause potentially life-altering injuries and the inherent risk in possessing such substances in public. They are on a par with knives in terms of seriousness. Their inclusion as a “highly dangerous weapon” is new but judges and magistrates do not seem to have had any difficulty in assessing the appropriate sentence for the cases they have encountered where these substances have been found to be offensive weapons.
Corrosive substances have always been considered offensive weapons when possessed in the right circumstances. The Prevention of Crime Act 1953 established that it is a question of fact for the jury or the Bench whether what was being carried was a weapon of offence. The examples have included corrosive liquids and far more obscure items. Take the case of Crown Prosecution Service v Christof  EWHC 4096 (Admin), where a belt buckle was considered, on the facts, to be an offensive weapon.
Perhaps the surprising aspect of this Guideline is the Sentencing Council’s shift away from Povey and an apparent attempt to reassert lower sentences for some offences, despite the added media and political attention. However, the introduction of the guideline may lead to some increases in sentence levels, predominantly in relation to adults convicted of possession offences.
Whether courts will still find reason to apply the guidelines at the higher end (as was urged in Povey) remains to be seen and probably to be challenged in the Court of Appeal.
Callum Brook, part of that criminal law team, has experience in crime and civil law and so he is well-placed to deal with cases involving both types of law.
Many of our criminal team are also accredited in specialist handling of vulnerable witnesses. This new accreditation is not yet mandatory but Central Chambers is proud to be ahead of the curve on this and other initiatives.
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