The number of crimes involving
the use of acid in the United Kingdom has increased exponentially. Specifically, assaults involving corrosive substances have doubled since 2012. The police
state there have been 504 reports of such offences in 2016-17. London has
seen the most dramatic rise and is the setting for
the vast majority of acid related offences. The injuries resulting from these assaults are typically catastrophic, disfiguring and life-changing. As such,
public demand for preventative and punitive measures in order to tackle the
rise of acid attacks has increased accordingly.
The Government has responded, entertaining
the possibility of new laws, more robust sentences, voluntary restrictions of
sale and a consultation. Most recently, acid has been specifically categorised
by the sentencing council as a ‘highly dangerous weapon’ in the sentencing
guidelines relating to bladed articles and offensive weapons. The
‘two strikes’ rule, whereby offenders convicted twice of possessing an
offensive weapon (or threatening to use it twice) receive a six-month
prison sentence has now been specifically applied to corrosive substances such as
acid.
This post aims to discuss the
current legislation, the existing sentencing guidelines relative to those
offences including the recent update, and will consider whether proposals for reform,
including the calls for tougher sentences, are appropriate.
The current catalogue of offences
The primary legislation encompassing
offences of this kind is covered by s.18 of the Offences Against the Person Act
(OAPA) 1861, and s.29 of the same act. S.18 covers intentionally causing
grievous (serious) bodily harm, and s.29 deals with throwing a corrosive
fluid on a person with the intention of causing serious bodily harm. The
maximum sentence for both of these offences is life imprisonment. If, as a
result of the assault with the use of acid, the person dies, which, due to the
utterly devastating effect acid can have on a human being, is a real
possibility, a charge of murder is available, carrying a mandatory life
sentence.
Whilst there are multiple
offences specifically relating to acid contained in the OAPA, such as ‘administering
a destructive or noxious thing with intent to injure, aggrieve or annoy’ under
s.23 of the Act, the maximum sentence being 5 years, it is likely prosecutions
would favour s.18 (or s.20 where intention is absent) due to its familiarity
with the Crown Prosecution Service and practitioners. S.24 is similarly worded,
save for use of the noxious thing must endanger life or inflict grievous bodily
harm. The maximum sentences for s.24 and s.23 are 5 years and 10 years
respectively, though again, it is unlikely these offences would be preferred
over the more well known and established s.18 and s.20.
Other than using acid as a weapon,
there are two other situations where regulation is applied to acid:
possession and sale. The possession of corrosive substances, is
covered under the offence of Possession an Offensive Weapon under s.1
Prevention of Crime Act 1953. Whilst the possession of acid was presumably
captured under this offence previously, the sentencing guidelines now makes
express reference to acid as a highly dangerous weapon. Additionally, if this
conviction is for a second relevant offence, the court must impose a sentence
of 6 months imprisonment, unless there are particular circumstances relating to
the offender, offence or previous offence that make it ‘unjust to do so in all
the circumstances’. The mandatory minimum of 6 months applies to both
possession and threats to use offensive weapons. The maximum sentence for such
an offence is 4 years imprisonment.
The recent change to the
sentencing guidelines can be found here:
For the sale of corrosive substances,
relevant legislation is contained within the Poisons Act 1972. It should be
noted however, that whilst the sale of certain corrosive and poisonous
substances is regulated to a certain extent by the Act, the sale and purchase
of the types of acids typically used in these types of offences is not in
itself illegal. The Poisons Act distinguishes between regulated harmful
substances and less harmful substances, which are 'reportable'. Substances listed
as less harmful on the reportable list include hydrochloric acid, ammonia and
various compounds of arsenic, but other arsenic compounds are also listed in
the regulated section.
The Poisons Act requires a person
to report the sale of one of the ‘reportable substances’ if they have
reasonable grounds for believing the transaction is suspicious. The purchase is
suspicious if the vendor has reasonable grounds for believing it is ‘intended
for illicit use’, which can be evidenced by factors such as the customers
inability to explain its use plausibly, an
unwillingness to provide proof of identity or an insistence on using cash. [1]
The indicators for illicit use are not exhaustive. As a summary only offence, the maximum sentence is 3 months and/or a fine.
A voluntary ban on the sale of corrosive
substances to under-18s has been adopted by major retailers such as Wickes,
B&Q and many others after a government recommendation, though this is
optional and at the time of writing, remains voluntarily enforced.
The case for reform
The case for new law and/or
tougher sentences in relation to acid attacks themselves may be unnecessary, as s.18 already carries the maximum sentence of life imprisonment. The only
possible avenue of increasing severity for such offences would be to impose
mandatory life sentences for those that commit acid attacks. However, the only
crime that currently carries a mandatory life sentence is murder. If the same
were to be applied to acid attacks, this would unavoidably dilute the severity
of a punishment reserved for the most serious of all crimes.
Second, the imposition of
mandatory sentences disregards the utility of the judge’s discretion. Whilst
almost all attacks involving the use of acid will result in truly dreadful
injuries, it is possible to obtain a conviction under s.18 if serious harm has
occurred, but there may be various degrees of just how serious one’s injuries
may be. A person may throw acid on to another causing absolutely horrendous
burns and disfiguring scars to the legs of their victim. A proportionally
serious sentence would be entirely justified in the aforementioned scenario.
Equally though, one may see reason in applying a more severe sentence in the
case of Berlinah Wallace, who doused her ex-lover’s face and body in sulphuric
acid whilst he slept semi-naked, resulting in burns to 90% of his body,
blinding him, paralysing him from the neck down, resulting in the amputation of
a leg and ridding him of his ability to speak. She received a life sentence.
Third, the differentiating
deterrent effect between knowing one will certainly receive a life sentence if
convicted, and there being a mere likelihood of receiving a life sentence is
arguably minimal. Whilst the incapacitive and retributive functions of
introducing a mandatory life sentence for those who commit such crimes is
arguably not without value, it is relatively unlikely to be a measure which
would realistically reduce the rate of offences. It is submitted in light of
the points above, the current sentencing powers available to judges in relation
to acid attacks are sufficient as the only more severe alternative is unjustified.
Whilst specifying that acid attackers
are to receive the same 6-month mandatory sentencing for two offences of
possessing a corrosive substance as those who carry knives in public do, it is
uncertain as to whether this will have either a deterring effect in
acid-related crimes. On face value, it certainly seems that as acid can be just as dangerous as knives, if not more so, it is logical to apply the same provisions of sentencing to
this type of possession offence. Measures which are in essence preventative
should be praised, and it is a welcomed improvement to the current guidelines
that corrosive substances, such as acid, are clarified as highly dangerous
weapons. Criminalising possession of such substances in public is perhaps a wise
measure, in what will hopefully be a wider and comprehensive set of tools in
combating such crimes.
One of the more obvious areas for
reform would be the Poisons Act 1972. The offence of not reporting the
suspicious transaction of a reportable substance appears to lack teeth and
presents clear issues of enforceability. One of the primary issues is that many,
if not most, who purchase acid intending to use it as a weapon purchase
it online. An online purchase has no shopkeeper to assess suspiciousness, and
the Act shows its age in s.3C(4) when listing the indicators of suspiciousness,
presuming all transactions will be undertaken in a physical shop.
It may be appropriate for the Act
to be updated to implement further regulation that makes provision for digital
sales of acid, as well as whether licensing or a form of robust checking is
appropriate for the availability of acid. A consideration of whether an updated
list of substances, compiled from the data of previous acid attacks and
possession offences is appropriate may also be sensible, and a proper
evaluation on whether the strict limitation of the sale of these substances is
likely to reduce the rate of offences.
In the Government's consultation
on new legislation for offensive and dangerous weapons, respondents to the
consultation were highly supportive of introducing restrictions for the sale of
corrosive substances. The responses supported bringing in legislation to mirror
the restrictions of sales with respect to knives, applicable to online sales as
well, with similar defences available to retailers who take reasonable
precautions and exercise due diligence. Legislation to specifically define
corrosive substances was supported, though with caution added in so far that
such changes should be infrequent to ensure certainty and based on scientific evidence. Respondents
also emphasised the importance of education and awareness for young people
around corrosive substances in order to reduce their usage. It is submitted the
latter point may be the most difficult, perhaps even the most expensive, but
almost certainly of critical importance in reducing the crime figure.
A summary of the responses to the
Government’s consultation on new legislation relating to the sale and
possession of acid can be found here:
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/717673/SUMMARY_OF_CONSULTATION_RESPONSES.pdf
Comparative study
Comparative study
Bangladesh experienced a
similarly grim rise in the number of acid attacks in early to mid 90s. It
passed two measures in response, one criminalising the offence of attacking
others with acid,[2] and the second, criminalising the sale, use, importation and unlicensed
production of acid.[3] The number of acid attacks in Bangladesh has decreased by an average of 15%-17%
each year, from a high of 494 in 2002, to a number of 39 incidents in 2017.[4]
Though these statistics could have inaccuracies as they are based mostly on
media reports rather than official figures, it is generally accepted that
Bangladesh has experienced a notable reduction in acid crimes, and that the
laws enacted in 2002 were a contributing factor, despite significant difficulties
in implementation.[5]
Josh Normanton and Elaine Freer,
barristers of 5 Paper Buildings, argue that it is the robust penalties for
those that possess, sell or produce acid, as set out in the Acid Control Act, that have the
greatest potential for replication in the England and Wales, and could make an
impact in reducing acid attacks. Increasing the penalties for retailers who do
not adhere to the strict controls related to acid is argued for as well, as it
is likely to increase diligence and thus further restrict the availability of
acid. They also point out that whilst Bangladesh has experienced significant
implementation problems, due to various factors such as corruption, England and
Wales generally fairs better with implementing new law. As such, similar
measures may even result in an improvement over the reduction percentage
experienced in Bangladesh.
Josh Normanton and Elaine Freer’s
post can be found here:
Controlling the availability of
acid is perhaps more likely to make the most significant dent in the incident
rate of acid attacks above increasing sentences on the logic it would deter
other potential acid attackers. As a relatively recent
phenomenon, it is unknown if the motivations of acid attackers remain just a
potent on their release from prison than at the time of their initial offence.
If a high reoffending rate could be shown for acid attackers, reconsidering
higher sentences may be warranted, though it would still appear that the
availability of a life sentence to a judge is more than adequate for their assessment of dangerousness.
Issues of enforcement
Enforcing new measures for
controlling of acid, should such restrictions be introduced, would present a
significant difficulty. With police forces suffering significant shortages and
limited resources, as well as catastrophic cuts to the CPS and court staff,
accommodating and properly investigating crimes related to the sale of acid
would inevitably add to the strain. Accordingly, should new measures come in to
force, it would be imperative that funding for police and courts to adequately
accommodate enforcement is allocated alongside.
It is possible, though unproven,
that the sharp increase in gang-related violence and acid attacks is related to the lower number of police constables on the street, as a result of
the increasingly stretched and underfunded police force. Considerations for
increased funding for police, especially in London, might be of an even
higher priority, relative to crime reduction, than introducing new legislation,
if acid attack figures are to be combated with any effectiveness.
Conclusion
The current catalogue of
legislation criminalising those who use acid to devastating effect is both
comprehensive and adequately available to prosecutors and judges who face
dealing with such horrendous crimes. Both offences under S.18 and s.29 have a
maximum sentence of life imprisonment available, which has previously been
used. To increase that maximum to a mandatory life sentence, mirroring that
applied to murder, would remove the judge’s discretion, producing unfairness,
inconsistent results and would dilute the severity of the offence of murder.
Whilst
reform is perhaps unwarranted for tougher maximum sentences in terms of s.18 or
s.29, tighter controls and increased penalties for retailers for the sale and
unlicensed production of acid have the potential to be effective. These might
include requiring identification and reporting sales to the police. Such
measures would hope to replicate the reduction of such crimes seen in
Bangladesh with similar controls. Amendments to the Poisons Act 1972 or new legislation
could facilitate this, though any significant reduction to the number of acid
attacks would be unlikely without a holistic package of reforms. Education and
awareness regarding consequences for young people would invariably play a crucial role. Most importantly however is the adequate allocation of funding to police forces. Without this funding, accommodating the significant enforcement challenges these measures would inevitably encounter would almost certainly fall short.
[1]
S.3C(4) Poisons Act 1972
[2] Acid Offence Prevention Act 2002 (Bangladesh)
[3] Acid Control Act 2002 (Bangladesh)
[4] http://www.acidsurvivors.org/Statistics
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