The role of guidelines in sentencing firearms offences

Guest blog from Professor Gavin Dingwall, Northumbria University

Firearm-related offences are rare but cause justified public concern. In most cases, no direct injury materialises but the potential for serious, even fatal, harm is present. There is also a risk that firearms and ammunition could fall into the hands of those with criminal intent. Sentencing firearms offences raises complex issues as courts must take account of the harm caused, or which was intended or reasonably foreseeable, as well as the offender’s culpability.

The recent literature review commissioned by the Scottish Sentencing Council examined the research and sentencing guidance relating to firearms offences. In relation to sentencing the review focussed on the use of mandatory sentences for firearms offences, which is perhaps unsurprising as statutory mandatory penalties have become a favoured response internationally, including in the United Kingdom.

There are a multitude of firearms offences found mainly in the Firearms Act 1968 and the Customs and Excise Act 1979. These Acts are unusual in that they contain offences that apply both in Scotland and in England and Wales. Additional offences, specific to Scotland, are contained in the Air Weapons and Licensing (Scotland) Act 2015. The latest figures for 2021-22 show that 273 offences in which a firearm was involved were recorded by the police in Scotland; although it is worth noting that 26% of these were for possession of a firearm with intent to endanger life, commit crime and cause fear of violence. Where a firearm is used to cause death or injury, other charges such as murder are brought in addition to the firearms offence. Serious or homicidal violence involving a firearm in Scotland is rare; in 2021-22, one homicide, one attempted murder and ten robberies involved the alleged use of a firearm.

The Sentencing Council for England and Wales has issued nine separate firearms offence guidelines, several of which cover multiple offences. Each guideline identifies factors relevant to harm, culpability, aggravation and mitigation. Section 59 of the Sentencing Act 2020 stipulates that a sentencing court must follow any guidelines which are relevant to the offender’s case, unless ‘the court is satisfied that it would be contrary to the interests of justice to do so’.

The English guidelines may be informative in Scotland for several reasons. The way in which the offences are grouped and the structure provided by the stepped approach are both logical, and the guideline ranges do not always encompass the maximum sentence, suggesting that the maximum sentence should be reserved for exceptionally serious cases. The guidelines also provide factors relevant to harm, culpability, aggravation and mitigation, which are matters that are discussed thematically in the literature review.

Mandatory minimum term sentences are unusual in both Scotland and England and Wales. However, section 51A of the Firearms Act 1968 requires that where a person convicted of certain specified offences is at least 21 years old at the time of the offence they are subject to the required minimum term sentence of five years ‘unless the court is of the opinion that there are exceptional circumstances relating to the offence’. If the person is aged under 21 then the required minimum term is three years unless there are exceptional circumstances. In England and Wales, the Sentencing Council has provided guidance on what constitutes ‘exceptional circumstances’. The literature review considers the reasoning in several Scottish cases where the courts adopted a strict interpretation.

Mandatory sentences have been subject to considerable academic criticism on two main grounds. Firstly, they undermine proportionality at sentencing, as the imposition of the same sentence on all offenders convicted of the same offence prevents a court from reflecting the culpability of an individual offender. Secondly, empirical studies have challenged the assumption that mandatory penalties serve as an effective deterrent.

It is also worth noting that both the criminal law and sentencing guidelines may have to evolve further to accommodate future developments such as the growing potential use of hybrid 3D-printed firearms and firearm components. However, sentencing guidelines should not be static and should evolve in response to changes in offending, public reaction to it and emerging research.

Dr Jay Gormley (University of Glasgow), Dr Gabrielle Watson (University of Edinburgh) and Professor Gavin Dingwall (Northumbria University), Jade Mouton, Dr Jonathan Bild and Professor Julian V. Roberts (Sentencing Academy) conducted a literature review on behalf of the Scottish Sentencing Council on Sentencing Firearms Offences.