Attorney General Reference No 114 of 2004

Where the prosecution seeks the five-year minimum sentence for possession of a prohibited weapon under Criminal Justice Act 2003, it should charge an offence under section 5 of the Firearms Act 1968. In the absence of that count, the minimum sentence does not apply merely because the facts might establish possession of a prohibited weapon.

A sentence is unduly lenient only if it falls outside the range which a sentencing judge, taking account of all relevant factors, could reasonably regard as appropriate. The appellate court must not increase a sentence simply because it would itself have imposed a longer term.

The Solicitor-General referred, under section 36 of the Criminal Justice Act 1988, a sentence imposed at Bristol Crown Court as allegedly unduly lenient. The offender had pleaded guilty to possessing a firearm with intent to cause fear of violence and to possessing two bladed articles. He had fired a converted handgun outside a nightclub after returning armed following a dispute.

The Crown Court imposed a total of three years and six months’ imprisonment. Although the weapon was capable of being a prohibited weapon, no offence under section 5 of the Firearms Act 1968 had been charged. The central issues were whether the statutory five-year minimum could nevertheless apply and whether the sentence was unduly lenient.

1. Application refused. The total sentence of three years and six months’ imprisonment was within the proper ambit of the sentencing judge’s discretion and was not unduly lenient.

2. The five-year minimum introduced by section 287 of the Criminal Justice Act 2003 could not be invoked on the existing indictment. If the prosecution seeks that minimum for possession of a prohibited weapon, it should add a count under section 5 of the Firearms Act 1968. That course gives the defendant clear notice of the exposure to the minimum term and avoids the confusion displayed in the Crown Court. The court rejected the Crown’s submission that a section 5 count was unnecessary.

3. Benfield & Ors [2004] 1 Cr App R(S) 307 concerned the distinct automatic-life-sentence regime in section 109 of the Powers of Criminal Courts (Sentencing) Act 2000. Its observations about an additional firearms count were expressly obiter and did not govern this statutory minimum.

4. The offender’s early guilty plea, previous good character and the circumstances of the firearm were material. The sentencing judge was entitled to impose a consecutive sentence for the knives. Applying the test restated from Attorney-General’s Reference No 4 of 1989 11 Cr App R(S) 517, the court held that a sentence is unduly lenient only when it lies outside the reasonable sentencing range. Leniency alone is not an error requiring intervention.

• Court of Appeal (Criminal Division): On an Attorney-General reference under section 36 of the Criminal Justice Act 1988, the court refused to increase the sentence: [2004] EWCA Crim 2954.
• Bristol Crown Court: On 2 September 2004, His Honour Judge Lambert imposed a total sentence of three years and six months’ imprisonment following guilty pleas. Citation not stated in the judgment.