Underage sale of knives: no April fools as new sentencing guidelines threaten sharp increase in sanctions

Last week finally saw the publication of new Sentencing Guidelines relating to the sale of knives and related items to persons under 18. Coming into effect on 1 April 2023, the Magistrates Courts now have a clear framework to follow when sentencing both individuals and retailers for this offence.

The Offence

The law in this area is well established and prohibits a person (including a company) from selling a knife, knife blade, razor blade, axe, or other article which has a blade or which is sharply pointed and which is made or adapted for use for causing injury, to a person under 18. Those who fall foul of this law face an unlimited fine or up to 6 months imprisonment.

Whilst that is so, a company has a statutory defence if it can prove that it took all reasonable precautions and exercised all due diligence to avoid committing an offence. In practice, a company would need to demonstrate that it has not only introduced appropriate policies and procedures but has also taken reasonable steps to ensure their effective implementation.

The law was strengthened last year in relation to remote sales so that a company is no longer able to rely on the “due diligence” defence unless it can demonstrate the following;

• an age verification system is in place which is likely to prevent purchases by persons under 18. This would include a Think 21 or Think 25 policy to ensure that anyone who appears to be below these ages are required to provide acceptable identification
• all packages containing knives must be clearly marked to indicate that it contains a bladed article and can only be delivered to a person aged 18 or over
• the company has taken all reasonable precautions and exercised all due diligence to ensure that when the package is handed over to a person over 18 or over.
• packages are not delivered to a locker

The Sentencing Guidelines

Whilst there has always been some uncertainty as to level of fine which a company could expect if convicted, the introduction of the new Guidelines will remove any such ambiguity and ensure a more consistent approach to how these offences are dealt with across the Country.

As a start point, the Courts must determine a level of culpability between high and low. These are defined as follows;

High culpability

• The offender failed to put in place appropriate measures to prevent underage sales -

• • For in-store sales, measures should include some or all of the following: identifying restricted products, clear signage, age verification checks, Challenge 21 or Challenge 25 policy, staff training, a means of monitoring refusals and till prompts
  • For online sales, measures should follow government guidance on the sale and delivery of knives including: identifying restricted products, age verification on delivery or collect in-store policy with age verification on collection
• The offender failed to act on concerns raised by employees or others
• Falsification of documents
• The offender failed to make appropriate changes following advice and/or prior incident(s)

Medium culpability

• Systems were in place but these were not sufficiently adhered to or implemented
• Other cases where the offender’s culpability falls between the fact described in ‘High’ and ‘Lesser’

Lesser culpability

• The offender made significant efforts to prevent underage sales where not amounting to a defence

The Courts must then assess turnover in order to decide whether an offending company should be regarded as a micro, small, medium, large, or very large organisation.

Once culpability and turnover have been determined, the Guidelines provide both a “start point” and “category range” for a fine (the start point may vary within the range depending on whether there are any additional aggravating or mitigating factors). Whilst the start point for micro companies and small companies ranges between £1500 - £50,000, there are considerable increases for large organisations who have a turnover of £50 million and above where the start point jumps between £50,000 - £400,000.

For very large organisations, whose turnover vastly exceeds the threshold for large organisations, the Courts will have scope to move outside the category range in order to impose even higher penalties. That being so, fines in excess of £1 million are very much on the table.

The approach to sentencing individuals follows an almost identical pattern albeit the penalties can also include community penalties or up to 6 months imprisonment.

What can retailers expect going forward?

Whilst the new Guidelines have not changed the sanctions that are available for this offence, they will prompt a sea-change in how the Courts now calculate fines.

As it currently stands, retailers who have been convicted of selling knives to those under 18 have, on the whole, faced modest penalties. Between 2017 and 2021, the average fine was only £2600.

However, given that the Courts must now have regard to a company’s turnover from 1^st April 2023, retailers should expect this figure to increase considerably. Whilst all companies who sell knives are liable to be affected, both large and very large retailers should expect six figure fines to become the norm.

At the same time, it would not be unreasonable to expect the introduction of these new Guidelines to incentivise Trading Standards to carry out more test purchase operations.

That being so, and knowing the high stakes involved, retailers should act now and immediately review their policies and procedures in order to comply with the law and minimise the possibility of any underage sales within their organisation. Where appropriate, this should include refresher training to staff so that they are under no illusions as to the seriousness of this matter, what is expected of them individually, and the consequences of failing to adhere to internal procedures where the sale of knives are concerned. As no system is completely fail proof, retailers should also ensure that appropriate records are kept so that, if asked, they are able to raise the defence of “due diligence” should a knife be inadvertently sold to a person under 18.

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Contact our Compliance & Regulatory team today should you require any further advice in relation to any of the issues raised above or if you require legal representation in relation to an ongoing investigation by Trading Standards.