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01 Mar 2018

New measures in the prevention of acid attacks

The Metropolitan Police has released statistics which show there has been a significant increase in the number of reported acid attacks, with 431 acid attacks committed in London in 2016, up from 261 attacks in 2015, and 166 in 2014.

In November 2017, the BBC reported on further statistics adduced by the Metropolitan Police, seeking to break down some of the stereotypical views held about acid attacks. It explained that the commonly held view that acid attacks are normally ‘honour’ related, committed by a male against a female, who are often both of South Asian ethnicity, is a myth. They are not, it argued, a peculiar category of attacks reserved only for a certain sub-set of society. In 2016, four out of five victims of reported acid attacks were men. It is believed that the increase in male victims is due to a rise in the use of corrosive substances as weapons by gangs. In addition, just 6% of all suspects in London over the last 15 years were Asian. However, the identification of acid attackers becoming more difficult to understand, due to the increase in acid throwing whilst the offender rides a moped and wears a helmet or balaclava.

There have been many cases of recent acid attacks reported in the media and these have usually been prosecuted as GBH offences; there is however also the option of prosecution under Section 29 of the Offences Against the Person Act 1861, which criminalises the throwing of corrosive fluid on a person with intent to do GBH. There has also been public outcry for further legislative change, to prevent acid attacks occurring in the first place through both deterrence and, where this fails, seizure of the corrosive substance.

On 1 March 2018, Sentencing Guidelines were published which, from 1 June 2018, will see the specific inclusion of corrosive substances brought within the offences of possession of an offensive weapon and threatening with an offensive weapon. The sentencing guidelines specify that corrosive substances do qualify as offensive weapons. The guidelines explain:

 “An offensive weapon is defined in legislation as ‘any article made or adapted for use for causing injury, or is intended by the person having it with him for such use’. A highly dangerous weapon is, therefore, a weapon, including a corrosive substance (such as acid), whose dangerous nature must be substantially above and beyond this. The court must determine whether the weapon is highly dangerous on the facts and circumstances of the case.”

This definition captures three categories of article: i) articles made for causing injury to the person; ii) articles adapted for use for causing injury to the person; and iii) articles that are not specifically made or adapted for the purpose of causing injury, but which may be considered offensive if a court or jury decides that the defendant intended them to be used for the purpose of causing injury to the person. It is the third category into which corrosive substances such as acid fall.

The updated sentencing guidelines confirm that the government is treating acid attacks as seriously as knife crime. Bringing the law on corrosive substances into line with that on knives, resulting in a mandatory minimum sentence of six months’ custody for adult offenders who are caught with acid more than once (the “two-strikes rule”), and for those who use it to threaten, will be welcomed.

Where the offender is under 18 and a corrosive substance is his weapon of choice, the high culpability and harm which results from this weapon is also a factor which may result in the custodial threshold being crossed (where applicable). One aggravating factor will be the deliberate humiliation of the victim. This includes, for example, filming the offence, deliberately committing the offence in front of a group of peers to cause additional distress, or circulating details/photos/videos of the offence on social media or within peer groups. Sentencing Courts will be encouraged to look in greater detail at the age, maturity, background and circumstances of young offenders when deciding on their sentence and, indeed, factors such as the offence being committed as a result of bullying, coercion or manipulation of the offender, will be treated as a mitigating factor.

The updated sentencing guidelines do not in fact materially change the landscape with regards to the prosecution of possession of and/or threatening with corrosive substances; the law has merely been clarified to confirm that corrosive substances can be prosecuted and sentenced as offensive weapons and do fall under the existing legislation, and gives guidance as to how they should be treated at sentencing.

Possession of a corrosive substance can be defended with the same “reasonable excuse” defence as applies to other offensive weapons, however the varied potential use of such substances will mean that corrosive substances are more difficult to convict upon. Corrosive substances are contained within so many day to day household products; toilet bleach, hair dye, drain and oven cleaner, that it will be necessary to consider intent with closer scrutiny than would be necessary where the weapon is a knife for example.

The government published a briefing paper in December 2017 which confirmed that it was considering new criminal offences relating to the possession of acid, sentencing and restrictions on the sale of acid to members of the public.  In addition to the updated sentencing guidelines, additional steps have been taken by the government, such as a voluntary ban on the sale of corrosive substances to under 18s which has been adopted by the likes of Wickes, B&Q and Tesco. It is unlikely that the reforms will end there, with the potential for more change with regard to the regulation of the sale of corrosive substances to adults expected.

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