Knives out – Do you need to prepare for the new Sentencing Guidelines for underage sale of knives?
Certainly, that would appear to be the intention of the Guidelines which significantly increase the potential consequences for retailers who break the law.
The number of knife/offensive weapon offences dealt with in the year June 2021-2022 was published in November and was a staggering 19,488. While this is a small reduction from the previous year, it remains very high and is of understandable and significant concern.
The sale of a knife to a person under 18 is a summary only offence contrary to s141A of the Criminal Justice Act 1988. The maximum penalty is six months imprisonment or a fine (without an upper limit). It is a strict liability offence. The facts of the sale itself establish the offence without the need for intent or recklessness or negligence. There is a statutory defence potentially available though (see below).
Knives includes any article with a blade or sharp point (with specified exceptions). The Offensive Weapons Act 2019 (OWA) strengthened the law and widened the definition of knives. It also makes it an offence to deliver bladed products (one capable of causing serious injury to a person which involves cutting that person’s skin) to residential premises or a locker.
There is a due diligence defence (that the seller took all reasonable precautions and exercised all due diligence to avoid the commission of the offence). The due diligence defence is common to a great deal of consumer and public protection legislation and is the subject of a great deal of caselaw. In summary terms it involves the setting up of a credible system or methodology designed to ensure the offence is not committed; and it involves the practical and effective implementation and operation of that system.
The guidance issued under the OWA states that to rely on the defence when sales are remote (on line, mail order or over the phone) these are the minimum conditions which must be met:-
- An age verification system that is likely to prevent purchases by those under 18. In store or on collection, this would include a Challenge 21 or 25 policy to ensure anyone who appears to be under that age is asked for acceptable photo identification e.g. a driving licence. This is trickier for remote sales but there are electronic age verifications systems available. Whilst it will ultimately be a matter for the courts, the guidance suggests that steps such as relying on a buyer ticking a box confirming they are over 18, otherwise relying on information provided by the buyer without additional checks or payment systems that may require the payer to be over 18 but which do not verify age at the point of purchase, would not be sufficient
- All packages containing knives must be clearly marked to indicate it contains bladed items and that it should only be delivered to a person over the age of 18
- The seller has taken all reasonable precautions and exercised all due diligence to ensure the package is handed to a person over the age of 18
- Packages cannot be delivered to a locker
The current position
There are no Sentencing Guidelines in force.
The introduction of two new Guidelines from April 2023 is designed to introduce greater consistency of approach in the way in which these offences are sentenced and provide a step by step guide for the sentencing court to follow.
In common with other guidelines published by the Sentencing Council, they set out ranges of penalty and suggested starting points for different levels of offending based primarily on culpability. There are separate guidelines for the sentencing of individuals and organisations. What is striking about the Guideline for organisations are the levels of suggested fine ranges and starting points - which would appear to mark a sea change in what getting this area of compliance wrong will now cost businesses. According to the Sentencing Council and the data they have produced, between 2017 and 2021 the average fine for organisations was £10,872. The new Guideline for organisations suggests that fines in excess of £100k are likely to become more commonplace; certainly fines of around £10k for organisations seem highly likely to become a relative rarity save for the smallest of businesses.
The Sentencing Guidelines
As stated, the aim of the Sentencing Guidelines is to try and ensure a consistent approach to sentencing. They apply to the unlawful sale in a single transaction of a knife or a small quantity of knives by a retailer.
They will apply when offenders commit the offence and are unable to demonstrate or prove in court that they had in place, and were properly implementing, adequate procedures to prevent the sale of knives to those under 18, whether remotely or in store.
The Guidelines are unlikely to change the penalties for many offenders but are bound to significantly impact large organisations. They can expect to see much higher fines. Under the Guideline for organisations, a ‘large organisation’ (defined as an organisation with an annual turnover of £50m plus) with high culpability can be fined up to £1m with a suggested starting point for sentencing of £400k. This may explain why a number of retailers have decided that they will not sell any knives online and ask customers to visit a store to make a purchase. It is understood that some large retailers have decided that for their smaller format stores they will not sell knives at all – even in face to face transactions.
The Guideline states that culpability is assessed only having regard to these factors which distinguish those in a position of authority from others;
- Where the offender is in a position of authority
- failed to put in place appropriate measures to prevent the sale such as some or all of the following: age verification checks, clear signage, staff training, monitoring refusals and till prompts for sales in store, or failed to follow the measures in the OWA guidance for online sales
- failed to act on concerns raised by employees or others
- Where the offender falsified documents, failed to make appropriate changes following advice and/or prior incidents or disregarded clear measures put in place to prevent underage sales
- Where the offender is in a position of authority and had put in place appropriate measures, but they were not sufficiently adhered to or implemented;
- Where the offender failed to fully implement measures put in place to prevent underage sales or where culpability falls between High and Lesser.
- Where the offender made significant efforts to prevent underage sales where not amounting to a defence
Normally in sentencing guidelines, you would expect to see an assessment of ‘Harm’ after ‘Culpability’, but the draft guidelines take this alternate approach:
“The harm caused by this offence relates to the risks, both to themselves and to others as well as the wider community, associated with children and young people being in possession of knives. There is just one level of harm, as the same level of harm is risked by any such sale to a person aged under 18.”
Having assessed the culpability, the starting point for sentencing is a Band A fine (50% of relevant weekly income) to a Band E Fine (400% of relevant weekly income) or a Community Order.
For Community Orders, the guidelines refer to the ‘Impositions of community and custodial sentence guidelines’ and also reiterate criteria relating to the three sentencing levels (low, medium and high).
The court should then consider any adjustment for aggravating factors including previous convictions and any mitigating factors including no previous convictions, steps taken to prevent re-occurrence and high level of co-operation with the investigation.
If the sentence includes a fine, the court should ‘step back’ and consider the overall effect of the fine and whether these objectives are met in a fair and proportionate way in order to achieve:
- the removal of any economic benefit (including through the avoidance of costs)
- appropriate punishment, and
The court should also apply any relevant reduction for assisting the prosecution, a reduction for an early guilty plea, the Totality principle and any compensation or ancillary orders.
The Guideline is broadly in line with those for individuals following the same step by step approach and similar considerations as regards the assessment of culpability.
The significant difference comes in the assessment of the fine being directly referable to the turnover of the organisation.
For micro and small organisations the fine ranges are from £500 to £25k and £3k to £100k respectively. But for large organisations the fine range is from £12k to £1m.
But fines are even capable of exceeding that £1m figure. In common with the existing Guidelines used for Health and Safety and Food Safety offences, the sentencing court is given considerable discretion to depart from the fine ranges in the case of what is called a ‘very large organisation’.
What the Guideline says is “Where an offending organisation’s turnover or equivalent very greatly exceeds the threshold for large organisations [£50m plus], it may be necessary to move outside the suggested range to achieve a proportionate sentence.”
If the experience of the sentencing in health and safety cases of very large organisations over the past few years is a reliable guide then a fine in excess of £1m in a bad case is more of a likelihood than a theoretical possibility.
The Guidelines come into force in April - what can you do to prepare?
In theory, nothing should change. Knives are already age-restricted (and have been for many decades), and longstanding and sophisticated business systems should already be in place and rigorously implemented and adhered to to prevent their sale of knives to those under 18. However, these Guidelines should be the strongest prompt to review those systems and procedures and their implementation. Certain businesses for whom knives are not a core part of their offering and where they only represent modest margins on low volumes may wish to consider whether to continue to sell knives at all – whether in store or online.
Will the Guidelines mean a flurry of test purchases by Trading Standards Departments? Only time will tell. But in light of the deep and understandable societal and media concern about knife crime; in light of pressure from the Police; and in light of continuous pressure from the Home Office it seems highly likely that even with stretched resources this area of compliance will remain a significant priority for Trading Standards.
How can Shoosmiths help?
Our experienced team can advise on the legal requirements to sell knives and review systems and procedures in place to prevent sales of knives to a person under the age of 18. If you or an employee fail a test purchase or otherwise sell a knife to a person under the age of 18, call us for advice. We can advise on all stages from the committing of the offence to appearing in court.
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