This article was co-authored by Anisa Roles, Trainee Solicitor, Manchester.
Retailers look set to be hit with bigger fines for selling knives to children in England and Wales under a new draft of sentencing guidelines recently published for consultation.
Presently, the Criminal Justice Act 1988 creates a specific offence in relation to the underage sale of knives; it carries a maximum of six months’ imprisonment (or, in the case of an organisation, an unlimited fine). There are currently no sentencing guidelines for this offence which is prosecuted by the Trading Standards departments of local authorities. Prosecutions usually result from test purchases where a child, under the supervision of Trading Standards officers, attempts and is able to purchase an age restricted item.
Earlier this year, the Sentencing Council published two draft sentencing guidelines for consultation, for the offence of selling knives to underage customers: one for individuals and one for organisations. The draft guidelines appear following recent campaigns for consistent rules to be applied in sentencing those who sell knives to children and have the potential to significantly increase penalties particularly for retailers involved in the inadvertent sales of knives to underage customers.
The Sentencing Council magistrate member, Jo King, said:
The draft guidelines apply to retailers who fail to ensure adequate safeguards are in place to prevent the sale of knives to children either in store or online.
The new guidelines include a stepped approach to sentencing and fine levels are set with reference to existing guidelines for organisations (for example, health and safety, food safety or environmental). As with the existing guidelines which apply to organisations of widely varying sizes, the approach taken to sentence levels is to have four sentence tables for micro, small, medium and large organisations.
At step one, a table sets out features of culpability ranging from low to high. This step also refers to the level of harm caused by the offence but unlike the guideline for health and safety offences, the Council concluded that there should be just one level of harm, as the same level of harm is risked by any such sale to a person under 18-years-old.
Step two refers to the level of sentence. In proposing sentence levels for organisations, the Council has had regard to data on sentences taken from the Court Proceedings Database. Of nearly 90 organisations sentenced between 2016 and 2020, 99% were fined, with the range of fines from £150 to £200,000. Statistics gathered for the purpose of a submission to the Council demonstrated how large companies were receiving similar fines compared to smaller businesses.
Drawing further comparison to the definitive guideline for health and safety offences, one of the Council’s intentions in developing guidelines for the offence of selling knives to children is to ensure that fines are proportionate, particularly in the case of larger companies. Step two therefore involves an assessment of factors to consider before arriving at an appropriate sentence, including, having regard to the defendant’s turnover. Under the proposed guidelines, a micro-organisation could face a maximum fine of £25,000 resulting in individuals operating small shops receiving fines of up to 700% of their weekly income. On the other hand, a larger organisation with a turnover of £50 million could be fined £1 million. In considering adjustments, the court will have regard to aggravating and mitigating factors.
Step three also considers an adjustment of fine whereby the court will review any financial element of the sentence and consider the overall effect of its orders. Steps four to eight are largely standard steps in Sentencing Council guidelines and include information and guidance on compensation and confiscation and ancillary orders.
How should retailers be preparing?
Whilst Trading Standards are alive to the fact many retailers “work incredibly hard to train staff and introduce robust procedures to stem the flow of knives to children”, their tests demonstrate that it is too easy for a child to buy a knife in store or online. Retailers are therefore urged to do more to stop the sale of knives to under 18s and should follow the advice and guidance of Trading Standards on the appropriate safeguards to prevent underage sales.
- Consider if they need to sell knives at all.
- If they do, store them securely in locked cabinets behind a specific counter.
- Ensure all staff are made aware that knives are age-restricted products and receive regular training and refreshers on an ongoing basis.
- Operate age restricted policies: no ID, no sale.
- Sign up to and adhere to the voluntary Code to restrict sales of knives to children.
- Carry out mystery shopping to ensure procedures are being followed.
The consultation closed in August 2022, and we now await a definitive guideline for this offence. However, it is clear that the guideline will seek to make it harder for underage persons to buy knives as part of ongoing efforts to reduce violence and ensure the Sentencing Council adopt a consistent approach when sentencing the offence. Trading Standards “strongly support this move by the Sentencing Council to achieve this important outcome”.
Related item: Crime and Regulatory roundup – December 2022