This article was written by Louise Cowen, Lecturer in Law, at Lancashire Law School
On 17th July 2015 new minimum sentences for those aged 16 and over convicted of a second or subsequent offence of possession of a knife or offensive weapon, contrary to section 1 of the Prevention of Crime Act 1953 or sections 139 and 139A of the Criminal Justice Act 1988. Section 28 and Schedule 5 were brought into force.
From this date, courts are required to impose a sentence of at least six months’ imprisonment on an offender aged 18 or over when they are convicted of a second or subsequent knife crime offence, and at least a four month detention and training order for those aged 16 and 17 convicted of such an offence. Courts must impose the minimum sentence unless there are particular circumstances making it unjust to do so.
The use of mandatory minimum sentences for those convicted of second or subsequent offence of possession of a knife was proposed in 2014, and backed by the London Metropolitan Police Commissioner, Bernard Hogan-Howe, who said “Where we get gang members or young people carrying knives, there is no excuse … that is a serious matter for me, and I am afraid knives generally do one thing – that is wound people and sometimes kill them. It is vital we send a clear message to young people”.
At the time, the Liberal Democrats opposed the plans, Nick Clegg stating that “This is just about carrying a knife, not committing an offence with it. There may well be cases where a judge should imprison someone for carrying a knife. What I am saying is that I don’t think everyone should be chucked into prison regardless of the circumstances, with no discretion, no exceptions and no extenuating circumstances”. Despite such opposition, the law was passed after Labour and Conservative MPs formed an informal coalition last year.
We might first ask why these measures are thought necessary. Existing guidance on sentencing makes clear that those convicted of possessing knives are to receive serious sentences. In the case of Povey & Ors  EWCA Crim 1261, the then Lord Chief Justice gave the following guidance regarding how sentencing courts should sentence those convicted of possessing knives:
“Carrying a knife or an offensive weapon without reasonable excuse is a crime which is being committed far too often by far too many people. Every weapon carried about the streets, even if concealed from sight, even if not likely to be or intended to be used, and even if not used represents a threat to public safety and public order. That is because even if concealed, even if carried only for bravado, or from some misguided sense that its use in possible self-defence might arise, it takes but a moment of irritation, drunkenness, anger, perceived insult or something utterly trivial, like a look, for the weapon to be produced. Then we have mayhem and offences of the greatest possible seriousness follow, including murder, manslaughter, grievous bodily harm, wounding and assault. All those offences have victims.
Offences of this kind, carrying an offensive weapon or knife, have recently escalated. They are reaching epidemic proportions. Every knife or weapon carried in the street represents a public danger and therefore in the public interest this crime must be confronted and stopped. The courts will do what they can to help reduce, and, so far as practicable, eradicate it. In our view, it is important for public confidence in the criminal justice system that the man or woman caught in possession of a knife or offensive weapon without reasonable excuse should normally be brought before the courts and prosecuted. Any conviction should be recorded and then the offender sentenced. For the time being, whatever other considerations may arise in the individual case, sentencing courts must have in the forefront of their thinking that the sentences for this type of offence should focus on the reduction of crime, including its reduction by deterrence, and the protection of the public. Even if the offender does no more than carry the weapon, even when the weapon is not used to threaten or cause fear, when considering the seriousness of the offence courts should bear in mind the harm which the weapon might foreseeably have caused. So the message is stark. This is a serious offence and it should be treated with the seriousness it deserves.”
Despite such guidance, large numbers of those sentenced for such offences do not receive an immediate custodial sentence. Ministry of Justice statistics show that during the first quarter of 2015 although adult offenders were more likely to receive an immediate custodial sentence for knife possession offences (34% of adult offenders receiving such a sentence), the use of suspended sentences continued to increase with more than more than one in five (23%) of adult offenders receiving such a sentence.
In terms of those offenders who would be affected by the changes introduced in July 2015 (i.e. those with previous convictions for knife possession offences), offenders with no previous knife possession offences were more likely to receive a community sentence (30%) in the 12 months ending March 2015, whereas offenders with at least one previous possession offence on their record were more likely to receive an immediate custodial sentence (45%).
The measures therefore aim to increase the number of immediate custodial sentences handed out by the courts. As well as punishment of the individuals concerned, mandatory minimum sentences are often justified on the basis that they send a strong deterrent message to others, thereby preventing future knife crime offences.
However, although the language of deterrent sentencing has a certain intuitive appeal, what we know about the deterrent effect of sentencing suggests that deterrent sentences may not play a determinative role in people’s actions. A 1999 report from the Institute of Criminology at Cambridge University concluded that the studies reviewed did not provide a basis to infer that the deterrent effect of sentences was increased by increasing their severity. Of significant importance to deterrence were perceptions of the likelihood of detection and punishment. This suggests that people’s decisions are influenced by a variety of factors, not simply the sentence mandated for a particular offence.
These new sentences may therefore not have the hoped for deterrent effect. There are also questions to be raised about whether short custodial sentences are an effective means of reducing crime, given the limited time they afford to make any kind of meaningful intervention in the life of the offender. There is also the question whether fettering the discretion of judges to impose the most appropriate sentence risks injustice, in that the individual circumstances of the offender and their offence may be neglected.
We can all agree that knife crime is something that needs to be tackled. Whether the use of mandatory sentences is the best means to achieve this is much less straightforward.
 Andrew von Hirsch, Anthony Bottoms, Elizabeth Burney, and P-O. Wikstrom, “Criminal Deterrence and Sentence Severity: An Analysis of Recent Research,” Oxford: Hart Publishing, 1999.