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Underage sale of knives: new sentencing guidelines published

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By Megan Berry

6 Mar 2023 | 3 minute read

The Sentencing Council has published new sentencing guidelines for retailers (including large organisations and individual shop owners) convicted of selling knives and related items to those under the age of 18 in England and Wales. Set to come into effect on 1 April 2023, the Magistrates Court will now have a clearer framework to follow when sentencing both individuals and retailers for this offence.

The offence

The law 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 fail to ensure that adequate safeguards are in place to prevent the sale of knives to under 18s either in-store or online face an unlimited fine or up to 6 months imprisonment at the discretion of the Court.

Whilst there is a statutory defence available to a company if it can prove it took all reasonable appropriate policies and procedures but has also taken reasonable steps to ensure their effective implementation.

The Sentencing Guidelines

The introduction of the new Guidelines should ensure a more consistent approach to how these offences are dealt with across the Country.

As a starting point, a Court must determine the level of culpability.

This will be used where the offending company failed to put in place appropriate measures to prevent underage sales, failed to act on concerns raised by employee or others, falsified documents or failed to make appropriate changes following advice and/or a prior incident.

This will be used where the systems were in place, but they were not sufficiently adhered or implemented or where the fact of the case do not lend itself to either high or lesser culpability.

The offender made significant efforts to prevent underage sales, but this did not amount to a defence.

This will be used where the offending company failed to put in place appropriate measures to prevent underage sales, failed to act on concerns raised by employee or others, falsified documents or failed to make appropriate changes following advice and/or a prior incident.

This will be used where the systems were in place, but they were not sufficiently adhered or implemented or where the fact of the case do not lend itself to either high or lesser culpability.

The offender made significant efforts to prevent underage sales, but this did not amount to a defence.

You may have anticipated that the next step would be to assess the harm. However, given that the harm caused by this offence relates to both the person aged under 18  and others as well as the wider community, there is just one level of harm.

The Court will then proceed to assess the turnover of the offending company, as happens when sentencing for other offences:

OrganisationAnnual turnover or equivalent
MicroNot more than £2 million
SmallBetween £2 million and £10 million
MediumBetween £10 million and £50 million
Large£50 million or over
Very largeWhere an offending organisation’s turnover or equivalent very greatly exceeds the threshold for large organisations, it may be necessary to move outside the suggested range to achieve a proportionate sentence.

Once culpability and turnover have been determined, the Guidelines provide both a “starting point” and “category range” for a fine (the starting point may vary within the range depending on whether there are any additional aggravating or mitigating factors).

Whilst the starting point for 'micro companies' and 'small companies' ranges between £1,500 – £50,000, there are considerable increases for large organisations with a turnover of £50 million and above where the starting 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, in excess of £1 million.

The approach to sentencing individuals follows an almost identical pattern albeit the penalties can also include non-custodial sentences such as community penalties, fines or discharge or up to 6 months imprisonment.

What can retailers expect?

The Sentencing Council does not expect sentences to change overall for most offenders, but for large organisation sentences may be higher under the new guidelines.

Therefore, this should be taken as a timely reminder to ensure your "due diligence" policies and procedures are up to date, comply with the law and minimise the possibility of any underage sales taking place within your organisation. You may also take this as an opportunity to provide refresher training to staff so they are aware of the seriousness of this offence, what is expected on them and the consequences of failing to adhere to internal procedures. We also recommend that you regularly carry out routine checks to ensure that underage sales policies and procedures are being followed.

We would expect Trading Standards departments, which prosecute alleged breaches of this offence,  to be particularly vigilant in the months ahead given this development, with a likely increase in the number of test purchases being carried out, which of course represents an escalation of risk for retailers.

This is often area which can sometimes result in conflict with customers, especially if there is a refusal of sale due to a lack of ID.  In our experience, retailers will want to ensure you are supporting colleagues in how to approach these conversations and de-escalate any tensions. This is more important than ever in light of the increased harassment we are seeing in harassment. Click here if you would like more support and assistances in how you can prevent or deal with harassment in retail.

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