Editorial

As the temperatures rise and evenings lengthen, thoughts inevitably turn to the classic concerns of Summer. Holiday destinations, music festivals and what the Albion Crime Team have to say about recent legal developments. Whilst this Newsletter will not help you choose between Butlins and Pontins or between Latitude and Boardmasters, it does provide helpful, practical distillations of three areas of criminal law.

Patrick Mason has used recent examples from his practice to shed light on the challenges of defending firearms cases in which minimum sentences can risk serious injustice. Emily Heggadon has helpfully tackled the increasingly complex provisions which govern how far through their custodial sentence an offender can be released. We are all so often asked the question, “When will I be released?”. In our third article, Emilene Davis has considered the likely impact of the new Sentencing Guideline on Careless Driving offences, which came into effect on 1st July; it appears destined to increase the punishments for relatively minor driving offences.

Finally, all at Chambers wish you a happy and relaxing Summer break.

Edd Hetherington
Head of the Albion Crime Team

 

Unintended Consequences Of The Law?

The Firearms Act 1968 s5 created a class of prohibited weapons (essentially automatic weapons and those designed to discharge noxious gases liquids, gases or things) which it was an offence to possess. It was an either way offence with a maximum sentence on indictment of five years.

The passage of 35 years brought s5 into the modern era with the prohibition of many more weapons under the various revisions of the Act. The Dunblane school shooting in 1996, in which a man carrying four handguns murdered 16 children, triggered an enquiry leading to the prohibition of handguns under the Firearms Amendment Act 1997, which added s5(1) (aba) to the 1968 Act. In 2003 a drive-by shooting by machine pistol of two teenage girls in Birmingham led to the insertion of s51A into the 1968 Act which brought in force the mandatory minimum term of five years for possession of most prohibited weapons.

By this time s5 prohibited a long list of weapons including a variety of vivid sounding rocket launchers at one end of the scale, handguns and shortened weapons and, at the other end of the scale, seemingly innocuous stunguns readily available to holiday-makers in markets or on the internet. Disguised as a torch or a mobile phone, such a stun gun can deliver a mild electric shock – a noxious substance – and a far greater shock of five years at His Majesty’s pleasure.

The persistence of the CPS in charging minimum term offences has been matched only by the reluctance of the Court of Appeal to find exceptional circumstances allowing the disapplication of the minimum term. The, no doubt, intended consequence of the minimum term, deterrence to gang members and other criminals, also brought with it the perhaps unintended consequence of bringing people such as Rehman & Wood before the court. Their 2005 case issued guidance from the Court of Appeal on exceptional circumstances, the usually enlightened Woolf CJ presiding. The court ruled that it would rarely interfere with findings or non-findings of exceptional circumstances. Rehman, a 24 year old of impeccable character, a graduate of Imperial College working for HMRC, liked to collect replicas. He was given the minimum term for possession of a blank-firing replica handgun which could be converted to fire live rounds. The Court of Appeal found exceptional circumstances and reduced his sentence to 12 months. Wood was not so lucky: for another man of impeccable character, a 41 year old company director, the five year term was upheld for possession of a shortened shotgun, inherited from his father, which was gathering dust in his attic.

In a long line of cases since, some seemingly truly exceptional circumstances have fallen short: recent examples include a mother whose partner died of cancer and whose incarceration left their children without either parent – not exceptional (Shehu 2022); a vulnerable adult being cuckooed – not exceptional (Banaras 2023); a man who refurbished firearms for use in historical exhibitions and charity events failed to attract any sympathy either – not exceptional (Scutt 2023). Balance was struck (although possibly to the discomfort of his fellow passengers) in the case of Otero (2023) who had an automatic pistol and 13 live rounds in his hand luggage on a commercial flight – his good character and multiple medical conditions were found to be exceptional.

Latterly, the case of Bassaragh found that a high-risk pregnancy was exceptional and justified suspension, but that case may sit better in the folder marked “how properly to approach sentencing women”. In handgun and shortened weapon cases the consequences of the minimum term, surely not intended, seem to bring upon many defendants precisely the arbitrary and disproportionate consequences defence lawyers argue against. The sentencing guideline offers scant comfort: the lowest culpability and harm offence obviously starts at 5 years, the only avenue out being exceptional circumstances which takes us back to the case law.

In the case of disguised stunguns the mandatory minimum term applies if charged under s5(1A)(a) but the approach of the Court of Appeal in cases such as Zhekov (stungun disguised as a torch, 12 months suspended appropriate) has led the CPS to issue guidance suggesting that the minimum term offence need not be charged in cases where there is no offensive use. Such weapons are also prohibited by s5(1)(b) to which the minimum term does not apply. The guideline here demonstrates the stark differences in starting points for the respective offences involving the same weapon: for the lowest category harm and culpability under s5(1A)(a) it is 5 years and for s5(1)(b) it is a band C fine.

One consequence of the minimum term legislation, clearly not intended but certainly anticipated by Parliament, is what may happen to those in possession of weapons lawfully which then become prohibited. In 2015, the case of Goldsborough dealt with gas powered air pistols which the 2003 Anti-Social Behaviour Act prohibited overnight. Transitional provisions allowed for the surrender of such weapons or an application to add them to a firearms certificate in a three month window. Goldsborough did neither and was prosecuted for a minimum term offence. The Court of Appeal, Treacy LJ presiding, said no, not right, he could only be prosecuted for possession without a certificate under s1 of the 1968 Act. Such weapons are a little niche, but what of those who have their grandfather’s WW1 pistol in the attic? Well, the law was that an antique benefited from an exemption under s58 of the 1968 Act. Do as I did in the case of a teacher who had a very old “black powder” pistol and call an expert from the Antiques Roadshow (resplendent in fedora and pink cords) and the jury may accept that it was an antique and find you not guilty. Parliament has closed this avenue off by removing most antique firearms from the definition of antique by the Police and Crime Act 2017 and regulations flowing from it. Discover that the WW1 pistol is in the attic and the Crown will come for you for a minimum term. Surprisingly, or not, such cases are coming to life. The potential escape is to be found in the transitional provisions which seem to suggest, as in Goldsborough, that the offence is under s1 of the 1968 Act and not s5. This argument has been advanced by me in a case in which judgement is reserved. Whoever wins, the other side will appeal it, so watch this space.

What to do if you represent someone in a s5 case? Always instruct an expert, dive deep in the law, leave no stone unturned and do it at leisure: there is no reduction to the minimum term for credit for plea. That was, perhaps, an intended consequence and it only highlights the potentially arbitrary and disproportionate consequences of the law.

(The views expressed are those of the author. Legislative and case references can be supplied on request).

Patrick Mason

 

 

“When will I be released, Miss?”

It might just be me, but every time a client asks me how much of their sentence they will serve I find myself scrabbling around for the pithily named The Criminal Justice Act 2003 (Requisite and Minimum Custodial Periods) Order 2024 which introduced the release at 40% provisions towards the end of last year, in a bid to deal with chronic prison overcrowding.

This is the most recent piece of legislation in the area and provides that the general rule is that a defendant is eligible for release at 40% of their custodial term if the total sentence is less than five years. This is irrespective as to whether it is made up of single, consecutive or concurrent terms.

If only it was as simple as that…

If an offender receives four years or more for any of the following offences (specified offences per part 1 of Schedule 15 of the Criminal Justice Act 2003), this rule will not apply.

• Manslaughter.
• Kidnapping
• False imprisonment
• Threats to kill
• Offences against the person: s.18 GBH, s.20 GBH, and ABH
• Child cruelty
• Possession of firearm with intent
• Robbery
• Aggravated burglary
• Arson
• Riot/violent disorder/affray
• Death by dangerous driving
• S.4/4A harassment
• Racially or religiously aggravated assaults, or public order act offences.
• Strangulation or suffocation

There are other offences listed in Schedule 15, but the above are the ones we find ourselves most commonly dealing with.

In addition to the “it won’t apply if you get four years or more” offences. There are 54 paragraphs in the schedule of excluded offences to the 2024 legislation. The most common offences for most practitioner’s purposes are as follows:

• Possession of indecent images of children, or extreme pornography
• Most offences contrary to the Sexual Offences Acts 1956, 1967, and 2003
• Domestic abuse offences: Breaches of protective orders, stalking, suffocation/strangulation, controlling and coercive behaviour
• Racially/religiously aggravated assaults and harassment
• Offences relating to national security

The changes were made against a background of further somewhat tricksy legislation.

The general rule was, of course, eligibility for release at the half-way point of a sentence.

Prior to the insertion of s.244ZA into the Criminal Justice Act 2003 (in June 2022), offenders would be released at two-thirds of their sentence, rather than the half-way point if they received a determinate sentence of 7 years or more, it was a specified offence within parts 1 or 2 of Schedule 15, and the offence had a maximum of life imprisonment.

From June 2022, the position has been that if a sentence of 4 years or more is passed for an offence falling in part 2 of schedule 15 which attracts a maximum sentence of life imprisonment there will be no release before two-thirds of the custodial term. This also applies to offences of manslaughter, soliciting murder, s.18 GBH from part 1 of schedule 15.

Importantly, the 2024 legislation does not alter the position in respect of s.244ZA.

So, the best summary of the current position seems to be that provided it’s not a sexual or domestic abuse offence, if the sentence if below 4 years, offenders are likely to be released at 40% of their term.

However, we seem to be working within constantly shifting parameters.

Former Justice Secretary David Gauke was commissioned to conduct an Independent Sentencing Review (published in May 2025).

Recommendation 4.1 is to introduce an “earned progression” model for standard determinate sentences (page 55 of report). It is said that the aim is to provide a “simpler more transparent SDS model”. Happy days.

The review proposes that sentences are split into three stages:

The custody stage:

This stage will be implemented with an “earned progression” model. If prisoners have engaged constructively with the prison regime, then they will be released at one-third of the way through. If not, it will be by the half-way point. Engagement is defined as including, but not limited to, compliance with prison rules, and the expectation that the offender will engage with purposeful activity and will attend any required work, education, treatment, where available.

Of course, practitioners and prisoners will know that it can be nigh-on impossible to “engage with purposeful activity” in prison at the moment with 23-hour lock ups commonplace. The review provides for this saying that “as prison capacity eases and fuller regimes become possible, compliance requirements should become more demanding”.

What is not clear, is who will be responsible for deciding whether offenders have been constructive enough, and against what metric. There does not seem to be a proposal to increase the ambit of Parole Boards, so one can only assume it will be either be added to the probation services’ burden or there will be specific people identified within the prison to make the assessment. The review says: “The criteria for compliance should be as objective and easy to administer as possible by using current processes and minimising additional layers of decision-making/bureaucracy as far as possible.” I guess David Gauke can be praised for his optimism…

The post-custody stage:

Once released, offenders would be in post-custody intensive supervision phase (with increased funding to probation) until two-thirds of their sentence.

The at-risk stage:

For the final third, offenders would not be subject to active supervision and only recalled if they commit a new offence.

Those serving determinate sentences for serious sexual and violent offences of longer than 4 years, who would currently be eligible for release at two-thirds, would under the new regime follow the same three-stage model, but with slight amendments. Constructive engagement would see them eligible for release at the halfway point, if not, it will be release by two-thirds at the latest (page 59). The post-custody phase would be operational until 80% of the sentence and they then move to the at-risk phase.

For those serving an extended sentence, the parole board would still play an active role, with “earned progression” getting them release between the halfway and two-third points. Otherwise, they would be eligible for consideration of release at two-thirds. Notably, despite most recommendations of the review set to become law in this summer’s anticipated Sentencing Bill, this particular recommendation has been rejected by the government, and the earliest release point will still be two-thirds for those on extended determinate sentences.

So, it’s likely that soon when a client asks you “when will I be released?” you’ll be saying “who knows…”

Emily Heggadon

 

 

Legal Update: Serious Consequences for Careless Drivers 

It is a criminal offence for a person to drive a mechanically propelled vehicle on a road/public place without due care and attention, or without reasonable consideration for other persons using that road/place (Section 3 of the Road Traffic Act 1988). A person is considered to be driving without due care and attention if  they drive in a way which falls below what would be expected of a competent and careful driver (section 3ZA(2) of the Road Traffic Act 1988). Examples of careless driving include:

• Undertaking (overtaking on the left-hand side)
• Driving too close to another vehicle
• Going through a red light, albeit by mistake
• Cutting up another vehicle (driving into the path of an established vehicle)
• Being avoidably distracted (changing a song on the sound system)

As of 1 July 2025,  the Sentencing Council’s new guideline for ‘Careless Driving (drive without due care and attention)’ (the “New Guideline”) took effect. Whilst there has been no change to the maximum sentence available for the offence of Careless Driving (unlimited fine and penalty points or discretionary disqualification), the New Guideline has significantly increased the starting point for sentence in respect of certain categorises of offending.

The New Guideline is structured in the conventional way, by reference to the degree of:

• Culpability:
  • A: Standard of driving was just below the threshold for dangerous driving and/or includes extreme example of a culpability B factor;
  • B: Engaging in a brief but avoidable distraction, driving at a speed that is inappropriate for the prevailing road/weather conditions, driving impaired by consumption of alcohol and/or drugs etc;
  • C: Standard of driving was just over threshold for careless driving or momentary lapse of concentration.
• Harm:
  • 1: Offending results in injury to others and/or damage caused to vehicles/property;
  • 2: All other cases.

One of the most significant changes between the New Guideline and the old Guideline which applied between April 2017 and 30 June 2025 (the “Old Guideline”) is the new position in respect of discretionary disqualification. For example, an offender who drove whilst unwell such that their driving was careless but caused no injury or damage may, under the Old Guideline, have seen their offending placed in Category 2, which would result in a Band B fine (starting point of a 100% of a relevant weekly income with a range of 75 – 125% of relevant weekly income) and 5 or 6 penalty points.

Another consequence of concern to those convicted of the offence will be the significant increase in financial penalty for those whose offending is in the highest category of offending. Consider an offender who was driving at excessive speed such that the driving was deemed careless, and consequently damage was caused to another vehicle on the road. Under the Old Guideline their offending would be Category 1, attracting a Band C fine (starting point of 150% of relevant weekly income, with a range of 125 – 175% of relevant weekly income). That same driving would be categorised as A1 under the New Guideline, with a starting point of a Band D fine (starting point 250% of relevant weekly income, range of 200–300%). In monetary terms, if the offender in this scenario earned £200 per week, then under the Old Guideline that person would be required to pay a fine of £300, whereas under the New Guideline they would have to pay £500 (Note: calculations on the basis of the Court adopting the starting point of 150% for a Band C fine and 250% for Band D).

Those representing drivers should also beware of the additional aggravating factors that have been incorporated into the New Guideline:

• Offence committed in the vicinity of vulnerable road users (including pedestrians, cyclists, horse riders, motorcyclists);
• Driving for commercial purposes;
• Driving a goods vehicle, public service vehicle or similar;
• Other driving offences committed at the same time as the careless driving;
• Blame wrongly placed on others;
• Failed to stop and/or obstructed or hindered attempts to assist at the scene;
• Passengers in the offender’s vehicle (including children); and
• Vehicle poorly maintained.

One aspect of the New Guideline that will assist those facing sentence for careless driving is that the Court must take into account the additional mitigating features which are incorporated. These include:

• Good driving record;
• Actions of the victim or a third party contributed significantly to collision;
• Offence due to inexperience rather than irresponsibility (where the offender is qualified to drive);
• Genuine emergency; and
• Efforts made to assist or seek assistance for victim(s).

Clearly, the most immediate concern for drivers is the increased risk of punishment by both disqualification and financial penalty. A moment of distraction could now quite feasibly result in both a short period of disqualification and a hefty fine.

Emilene Davis

Disclaimer

Any comments made or views expressed on the law within any articles in this newsletter are the views of the writer and are not necessarily the views of any other member of chambers and should not be relied upon as legal advice.