Attorney General's Reference No. 5 OF 2005

A low assessed risk of reoffending does not, without more, constitute exceptional circumstances capable of displacing the statutory five-year minimum sentence for possessing a prohibited disguised firearm under the Firearms Act 1968.

Carrying a loaded, lethal and disguised firearm in a residential street with intent to endanger life is gravely aggravated by protective body armour, gloves, the evening setting and offending while on bail. On an Attorney-General reference, the Court may replace an unduly lenient sentence, while allowing for the double-jeopardy effect of resentencing.

The offender pleaded guilty to dangerous driving and related driving offences. He later pleaded guilty to possessing a firearm with intent to endanger life, possessing a disguised firearm, and possessing ammunition without a certificate.

Police found him carrying a disguised, adapted and loaded firearm while wearing concealed ballistic body armour and gloves. The firearm had not been discharged. The Crown Court imposed concurrent sentences of four years’ detention on the two principal firearms counts, having found exceptional circumstances in relation to the disguised-firearm count.

The Attorney General obtained leave under section 36 of the Criminal Justice Act 1988 to refer the sentences as unduly lenient. The issue was whether the statutory minimum and the aggravating features required a substantially higher sentence.

1. The Attorney-General’s reference succeeded. The Court substituted concurrent sentences of six years’ detention on the counts of possessing a firearm with intent to endanger life and possessing a disguised firearm. Those sentences replaced the concurrent four-year terms imposed below.

2. The offender’s low assessed risk of reoffending was incapable, as a matter of law, of amounting to exceptional circumstances. There was therefore no basis for departing from the five-year statutory minimum applicable to the disguised prohibited weapon under section 5(1) of the Firearms Act 1968.

3. The offence of possessing the firearm with intent to endanger life was exceptionally serious. The weapon was disguised, loaded with two live rounds and lethal at point-blank range. It was carried in a residential street in the evening. The offender admitted the intent to endanger life, was not alone, and had concealed ballistic body armour beneath his clothing while wearing gloves. These features showed that the weapon was carried in circumstances of substantial danger, rather than merely possessed.

4. The Court took account of the guilty pleas, the offender’s youth, the absence of relevant serious convictions, and the fact that the firearm had not been discharged. Even allowing for the late guilty pleas, the Court considered that sentences of at least seven years would ordinarily have been expected on the principal counts. It reduced the substituted terms to six years to reflect the double-jeopardy consequence of increasing sentence on a reference.

• Court of Appeal (Criminal Division): In [2005] EWCA Crim 880, the Court granted leave under section 36 of the Criminal Justice Act 1988, found the principal firearms sentences unduly lenient, and substituted concurrent six-year terms.
• Minshull Street Crown Court: On 13 December 2004, the sentencing judge imposed concurrent four-year detention terms for possessing a firearm with intent to endanger life and possessing a disguised firearm, finding exceptional circumstances on the latter count.