Decoupling the Statutory Minimum in Firearms Cases: R v Barrett [2025] EWCA Crim 1275 and the Duty to Discount Guideline Starting Points Where Exceptional Circumstances Apply

1. Introduction

The decision of the Court of Appeal (Criminal Division) in R v Barrett [2025] EWCA Crim 1275 is a significant addition to the jurisprudence on sentencing for prohibited firearms offences subject to statutory minimum terms. The case clarifies, as a matter of principle, how courts should adjust sentencing guideline starting points once “exceptional circumstances” have been found which disapply the five-year minimum custodial term under the Sentencing Act 2020.

The appeal arose from a sentence imposed on a young woman of previous good character, who had agreed to store a loaded handgun for a co-defendant involved in Class A drug dealing. The Recorder at first instance accepted that exceptional circumstances existed (primarily based on serious mental health conditions) so that the five-year minimum sentence did not apply, but nonetheless sentenced by reference to the standard guideline starting point for cases where the minimum does apply.

On appeal, while the Court of Appeal upheld the Recorder’s categorisation of culpability and harm, and her decision not to use the “non-minimum” guideline table, it held that once exceptional circumstances are found, there must be a distinct downward adjustment to reflect the disapplication of the statutory minimum, separate from ordinary mitigation. The court also corrected the treatment of time spent on curfew and confirmed the proper statutory framework for crediting curfew time.

2. Background and Procedural History

2.1 The parties and the offences

The appellant, Ms Barrett, was:

• 23 years old at the time of the offence in August 2023;
• of previous good character with no prior convictions or cautions;
• living with her parents and other family members, including young children, at the address where the firearm was found;
• in employment and assessed as a low risk of reoffending.

Her co-defendant, Mr Kenny Aliki, was involved in supplying Class A drugs (cocaine) and in possession of multiple firearms and ammunition.

2.2 The factual matrix

On 29 August 2023, the police recovered a Remington 1911 handgun from the family home shared by the appellant and her relatives, including a young niece and nephew:

• The firearm was a “type one” handgun, capable of lethal force.
• It was loaded with a single unfired bullet.
• It was concealed in a make-up box on the top of a wardrobe, inside a black plastic bag.
• The appellant’s fingerprints were found on the inside of the black plastic bag, indicating that she had personally handled and concealed the weapon.

On arrest and interview:

• The appellant accepted she had been in possession of the Remington handgun for around two weeks.
• She said she had received the firearm from Aliki.
• In a prepared statement she claimed she had been coerced into holding the gun, asserting duress.

Analysis of mobile phones showed that:

• Aliki possessed a second firearm – a Grand Power 9 handgun – with a magazine and three live cartridges.
• Aliki was actively involved in supplying Class A drugs, namely cocaine.

The Recorder later found that:

• Aliki possessed both firearms (the Remington and the Grand Power 9) in connection with his drug dealing activities.
• He had given the Remington to the appellant to store for him about two weeks before the police search.
• The appellant was not coerced, but she had taken the firearm “out of impulse and with a level of fear of reprisals”, whether or not that fear was objectively justified.
• There was nothing to suggest that the appellant knew that Aliki possessed the firearm in connection with his drug dealing.

2.3 Charges, trial and sentence at first instance

The procedural history was as follows:

• 23 September 2024: At Harrow Crown Court, the appellant changed her plea to guilty on:
  • Possession of a prohibited firearm, contrary to s 5(1)(a)(b)(a) Firearms Act 1968 (a “type 1” handgun attracting a statutory minimum term); and
  • Possession of ammunition without a firearms certificate, contrary to s 1(1)(b) Firearms Act 1968.
• 9 April 2025: After trial, and on the judge’s direction, the appellant was acquitted of a more serious count: possession of a firearm with intent to endanger life.
• 13 June 2025: The appellant was sentenced to a total of 46 months’ imprisonment.

Her co-defendant, Aliki, had:

• pleaded guilty to multiple drug and firearms offences;
• been acquitted by the jury of possession of a firearm with intent to endanger life; and
• received a total sentence of nine years and three months’ imprisonment.

2.4 Personal mitigation and psychiatric evidence

The sentencing court had detailed material about the appellant:

• A pre-sentence report assessing her as a low risk of reoffending.
• Evidence that she was in steady employment and had worked throughout her time on bail.
• A psychologist’s report (from Dr Horsfall) with an addendum, diagnosing:
  • emotionally unstable personality disorder;
  • co-morbid post-traumatic stress disorder (PTSD);
  • bipolar disorder;
  • all arising from two severe traumatic events – the death of her brother and a rape while at school.
• Evidence that she posed a high risk of self-harm in custody.
• Character references from parents and others, and a personal letter of remorse to the judge.

2.5 The Recorder’s approach to the guideline and the minimum term

The offence of possessing a prohibited firearm in this case was subject to a statutory minimum term under:

• Section 311 of Schedule 20 of the Sentencing Act 2020, which requires a minimum sentence of at least five years’ custody for certain firearms offences, irrespective of plea, unless there are exceptional circumstances relating to the offence or the offender.

The relevant Sentencing Council Firearms guideline requires the court to:

1. Determine culpability and harm to identify the category of offence (here, Category B2).
2. Apply the starting point and category range from the relevant Table (Table 1 for offences subject to the minimum term).
3. At step 3, consider whether there are exceptional circumstances such that the statutory minimum term should not apply.

The Recorder:

• Found culpability B:
  • because the Remington handgun was a “type 1” prohibited weapon,
  • and it was loaded.
• Found harm Category 2:
  • because the weapon was stored in a family home;
  • it could have been accessible to others, including children;
  • and there was an intention to return it to Aliki for use in connection with his criminal drug enterprise.
• Therefore identified the guideline starting point as six years’ imprisonment under Table 1 (Category B2).

On the question of exceptional circumstances, the Recorder:

• Rightly recognised that the minimum term regime applied.
• Rejected as “exceptional”:
  • the circumstances in which the appellant came into possession of the gun;
  • her good character;
  • her youth and inexperience;
  • her prospects of rehabilitation and employment.
• But, taking an holistic approach, accepted that:
  • the appellant’s mental health diagnoses, taken together with the other mitigating factors, amounted to exceptional circumstances within the meaning of the guideline.
• Described that decision as “marginal”.

Despite finding exceptional circumstances, she:

• Chose not to move to Table 2 (the “non-minimum” table) of the guideline.
• Stayed with Table 1 and:
  • Reduced the six-year starting point to a notional sentence after trial of 4½ years (54 months), taking account of mitigation (including exceptional circumstances).
  • Applied a 15% discount for the late guilty plea, given that the appellant pleaded guilty on the first day of a re‑listed trial after initially indicating not guilty pleas.
  • Arrived at a final sentence of 46 months’ imprisonment.
• Directed that:
  • 647 days of time spent on a qualifying (tagged) curfew should be credited, half of which (324 days) would count towards the sentence.
  • An additional 75 days spent on a doorstep (non-tagged) curfew would also be “taken into consideration as per section 240A”.

3. Summary of the Court of Appeal’s Decision

The appeal was brought against sentence with leave of the single judge. The main grounds challenged the categorisation of harm, the parity between co-defendants, the failure to use Table 2, the sufficiency of the reduction of the starting point once exceptional circumstances were found, and the treatment of curfew time.

The Court of Appeal held:

• Harm categorisation: The Recorder was entitled to categorise harm as Category 2 rather than Category 3. The storage of a loaded handgun in a family home with children present, and the associated risk, fully justified a Category 2 assessment (paras 17–18).
• Individualisation of sentence: The Recorder did sufficiently distinguish between the appellant and her co-defendant, sentencing each on their own circumstances. No error of principle arose from alleged parity issues (para 19).
• Use of Table 2: The Recorder was not obliged to move to Table 2 after finding exceptional circumstances. The guideline provisions allowing reference to Table 2 are permissive, not mandatory, as reaffirmed in Luke Smith. The Recorder gave cogent reasons for continuing to use Table 1 (paras 18–19).
• Core principle – effect of exceptional circumstances on the starting point:
  • Drawing on Rehman, Otero and Luke Smith, the Court held that exceptional circumstances “disconnect” or decouple the deterrent uplift inherent in the statutory minimum term (paras 20–23).
  • This requires a distinct downward adjustment of the Table 1 starting point, in addition to any reduction for ordinary mitigation (para 23).
  • In this case the Recorder had not expressly made that separate reduction, apparently because key authorities and the “Rehman/Otero point” had not been put before her (para 23).
• Re-sentencing:
  • The Court determined that the correct notional sentence after trial, taking proper account of exceptional circumstances before ordinary mitigation, should have been 3½ years (42 months) (para 26).
  • Applying the 15% plea discount (rounded up) reduced this to 35 months.
  • To reflect time spent on the non-qualifying doorstep curfew (which could not lawfully be credited under the statutory scheme) a further one month was deducted, producing a final term of 34 months’ imprisonment (paras 25–26).
  • The original 46‑month term was quashed and replaced with 34 months (para 26).
• Curfew credit and statutory framework:
  • The Recorder had purported to credit curfew time under section 240A of the Criminal Justice Act 2003, but that section had been repealed and replaced by section 325 of the Sentencing Act 2020 (para 27).
  • The appellant’s 647 days on a qualifying tagged curfew correctly attract automatic statutory credit of 324 days (half, rounded up) under s 325 SA 2020 (para 27).
  • Time on a non-qualifying doorstep curfew does not fall within the statutory scheme and could not lawfully be credited in the same way; instead, it had to be recognised, if at all, by an adjustment to the custodial term, which the Court did by reducing the sentence by a month (para 25).

4. Legal and Sentencing Framework

4.1 Firearms offences and the statutory minimum term

The appellant’s principal offence – possession of a prohibited firearm – fell within the statutory regime requiring a minimum term:

• The relevant firearm was a “type 1” prohibited weapon under s 5(1) Firearms Act 1968 (a category that includes most handguns).
• Under section 311 of Schedule 20 to the Sentencing Act 2020, a defendant aged 18 or over convicted of such an offence must generally receive a minimum of five years’ imprisonment.
• This minimum applies irrespective of:
  • the particular circumstances of the offence; or
  • the personal circumstances of the offender;
  unless the court concludes there are exceptional circumstances relating to the offence or offender which justify not imposing the minimum term.

This statutory minimum embodies a strong deterrent policy: Parliament has judged that simple possession of certain lethal firearms is, by default, so grave that a very substantial custodial response is required, even where no actual harm is caused.

4.2 The Sentencing Council Firearms guideline

The Firearms guideline (for Crown Court sentencing) provides a structured approach in three main steps:

1. Step 1 – Determining culpability and harm:
   • Culpability reflects factors like:
     • the type of weapon (e.g. “type 1” prohibited firearms);
     • whether it was loaded;
     • the offender’s role and level of awareness.
   • Harm is assessed by reference to:

     Harm is assessed by reference to the risk of harm or disorder occurring and/or actual alarm/distress caused. When considering the risk of harm, relevant considerations may include the location of the offence, the number and vulnerability of people exposed, especially children, and the accessibility and visibility of the weapon.

2. Step 2 – Starting point and range:
   • For offences subject to the statutory minimum, the guideline uses Table 1.
   • For offences not subject to the statutory minimum, it uses Table 2.
   • Each table provides a starting point sentence for each combination of culpability and harm, and a category range within which the sentence will usually fall.
   • In this case, culpability B and harm Category 2 led to Category B2 in Table 1, with a starting point of six years’ custody.
3. Step 3 – Exceptional circumstances and the statutory minimum:
   • If the offence falls under the statutory minimum regime, the court must decide whether there are “exceptional circumstances” such that the five-year minimum should not apply.
   • If exceptional circumstances are found, the guideline states that the court:
     • may find it useful to refer to the ranges in Table 2; but
     • is not required to do so – the language is permissive.

4.3 Exceptional circumstances

The expression “exceptional circumstances” is not exhaustively defined. The authorities treat it as a high threshold, but one that can be met by:

• unusual features of the offence (e.g. very limited knowledge of the nature of the item possessed, highly transient possession, or extraordinary circumstances of coercion or duress);
• or unusual features of the offender (e.g. serious mental illness, particularly acute vulnerability in custody, or truly compelling personal mitigation).

Crucially, as emphasised in Rehman, “exceptional” is not a mere label for ordinary mitigation, youth, or good character. It refers to circumstances which, if the statutory minimum were applied, would render the sentence arbitrary or disproportionate.

4.4 Credit for time on curfew – statutory provisions

Two types of curfew were relevant in this case:

• Qualifying curfew: an electronically monitored (tagged) curfew satisfying statutory criteria. Time spent under such a curfew accrues automatic credit against a custodial sentence under section 325 Sentencing Act 2020, broadly at a rate of half a day’s credit for each day on curfew.
• Non-qualifying (doorstep) curfew: a curfew imposed (often as a bail condition) but without electronic monitoring or not meeting all statutory conditions. Time under such a curfew does not attract automatic statutory credit. The court may still reflect it in sentence by exercising a discretionary reduction in the custodial term.

Section 240A of the Criminal Justice Act 2003 once governed curfew credit but has now been repealed and replaced by section 325 SA 2020. In Barrett, the Recorder had inadvertently referred to the repealed provision; the Court of Appeal corrected this and applied section 325.

5. Precedents Considered and Their Influence

5.1 Rehman [2005] EWCA Crim 2056

In Rehman, Lord Woolf CJ explained the rationale behind statutory minimum sentences for firearms offences:

• Such offences under s 5 Firearms Act 1968 are largely absolute offences, meaning an offender can commit them without realising it – for example, by possessing a prohibited firearm without fully appreciating its legal status or nature.
• Because the minimum term is triggered by the bare fact of possession, irrespective of intent, the scheme risks operating in an arbitrary or disproportionate way if applied mechanically to all offenders.
• To counteract that risk, Parliament built in the “exceptional circumstances” safety valve. Where such circumstances exist, the minimum should not be applied.

Lord Woolf noted at paragraph 12:

Parliament has therefore said that usually the consequence of merely being in possession of a firearm will in itself be a sufficiently serious offence to require the imposition of a term of imprisonment of five years, irrespective of the circumstances of the offence or the offender, unless they pass the exceptional threshold... This makes the provision one which could be capable of being arbitrary... [F]irearms offences under section 5 are absolute offences. The consequence is that an offender may commit the offence without even realising that he has done so. That is a matter of great significance when considering the possible effect of section 51A creating a minimum sentence.

Barrett uses this reasoning to support the idea that once exceptional circumstances are found, the deterrent “uplift” baked into the minimum term – and thus into the guideline starting points calibrated around that minimum – should be stripped away or reduced.

5.2 Otero [2023] EWCA Crim 981

Otero is central to the Court of Appeal’s reasoning in Barrett. Ellenbogen J, giving the judgment of the court, held that:

• Once the judge finds exceptional circumstances and thus concludes that imposition of the minimum term would be arbitrary or disproportionate, the judge is obliged under the guideline to impose either:
  • a shorter custodial sentence; or
  • an alternative sentence.
• If the judge chooses not to rely on Table 2, but still sentences by reference to Table 1 (which is designed for minimum-term cases), they must:
  1. First, recognise that the starting point in Table 1 is artificially inflated by reference to the minimum term and therefore is higher than appropriate once exceptional circumstances are found.
  2. Second, make a very substantial downward adjustment to reflect the exceptional circumstances and mitigating factors, in line with Parliament’s rationale as explained in Rehman.

In Barrett, the Court explicitly adopts this reasoning. At paragraph 20, the court summarises the error identified in Otero: a failure to make a sufficient downward adjustment from the Table 1 starting point after disapplying the minimum term, and a failure to distinguish that adjustment from ordinary mitigation.

5.3 Luke Smith [2024] EWCA Crim 424

Luke Smith is important in two respects:

1. Table 2 is permissive, not mandatory:
   • The guideline provides that where exceptional circumstances are found, the court may find it useful to refer to the range in Table 2 (offences not subject to the statutory minimum).
   • In Luke Smith, the court confirmed that the word “may” signals a discretion, not a duty (paras 13–14 quoted in Barrett at para 18).
   • It follows that a judge is entitled to remain within Table 1, provided they appropriately adjust the sentence for exceptional circumstances.
2. Starting points remain relevant even when the minimum term is disapplied:
   • In Luke Smith, the Recorder reduced a six-year starting point to three years after trial (then to two years after a one-third plea discount), despite finding exceptional circumstances.
   • The Court of Appeal approved that approach, emphasising that:

     Possession of a lethal firearm is a grave offence irrespective of the existence of a minimum term.

   • This supports the proposition that Table 1 starting points continue to provide a useful anchor for sentence, even when the statutory minimum itself no longer applies.

Barrett reconciles Otero and Luke Smith: the Table 1 starting points are a legitimate reference even after exceptional circumstances are found, but their deterrent uplift must be consciously reduced to reflect disapplication of the minimum term.

6. Detailed Analysis of the Court’s Reasoning

6.1 Ground 1 – Harm categorisation (Category 2 vs Category 3)

The appellant argued that the Recorder should have placed harm in Category 3, not Category 2, because:

• There was no evidence that the appellant’s possession of the gun had caused any of the specified harms in the guideline.
• The risk in the appellant’s hands was different from the risk in Aliki’s hands (following a passage in Luke Smith), because she was not a drug dealer and had no intent to use the firearm.
• The mere fact that the firearm was in a family home with children did not, it was said, justify treating it as a higher-harm case, particularly since there was no suggestion that the children could easily access it.

The Court of Appeal rejected this ground:

• The guideline explicitly directs the judge to assess harm by reference to risk of harm or disorder, not only actual harm. The judge must consider:
  • location of the offence;
  • number and vulnerability of people exposed, “especially children” (emphasis in original); and
  • accessibility and visibility of the weapon.
• Here, the weapon was:
  • a loaded handgun,
  • stored in a family home,
  • where young children were present.
• Even if the children did not know of its presence or could not easily reach it, the combination of lethality, location, and vulnerability justifiably placed the case in Category 2, which reflects higher risk.

The court gave weight to the Recorder’s advantage in having heard all the evidence at trial and being “best placed to determine the proper categorisation of harm” (para 17). No error of principle, and no manifestly excessive assessment, was found.

6.2 Ground 2 – Distinguishing between the appellant and co-defendant Aliki

The appellant submitted that the Recorder had inadequately distinguished between:

• Aliki, who:
  • possessed the gun for longer,
  • held it for a clear criminal purpose connected with drug dealing,
  • and supplied drugs and possessed multiple firearms; and
• the appellant, who:
  • only held the weapon for about two weeks,
  • did not use it or intend to use it,
  • and did not know of its connection to Aliki’s drug enterprise.

The Court of Appeal found no force in this complaint. The Recorder:

• Clearly distinguished between the two in her sentencing remarks;
• Recognised that Aliki’s role and broader criminality warranted a far longer sentence (nine years and three months);
• Approached the appellant’s case separately, focusing on her limited role, personal circumstances and mental health.

Thus, there was no failure to individualise sentence or to observe the principle of sentence parity (like cases being treated alike, different cases being treated differently).

6.3 Ground 3 – Failure to use Table 2 after finding exceptional circumstances

The appellant argued that once the Recorder found exceptional circumstances, she should have:

• Moved across to Table 2 (which gives ranges for offences not subject to the statutory minimum); or
• At least given clear reasons for refusing to do so, as suggested in Otero.

The Court of Appeal pointed out that:

• Paragraph 14 of the guideline (quoted in Luke Smith, and in Barrett at para 18) states:

  The court may find it useful to refer to the range of sentences under culpability A of Table 2 (Offences not subject to the statutory minimum sentence) in step 2 above. The court should impose a sentence that is appropriate to the individual case.

• The use of the word “may” makes clear that reference to Table 2 is permissive, not mandatory.
• In this case, the Recorder:
  • Plainly had the guideline well in mind;
  • Explained that she would not depart from Table 1’s levels, giving reasons (see reference at para 19 to her explanation at transcript page Y17 D–F);
  • Was therefore entitled to retain Table 1 as her starting point.

The court thus rejected the suggestion that it was an error not to use Table 2. The key question is not which table is used, but whether, after the finding of exceptional circumstances, the judge properly adjusts the sentence to strip out the minimum-term uplift.

6.4 The central point of principle – the effect of exceptional circumstances on the starting point

The most important part of the judgment concerns the interaction between exceptional circumstances and guideline starting points in minimum-term firearms cases.

At paragraphs 20–23, the Court of Appeal synthesises Rehman, Otero, and Luke Smith and draws out a general principle:

• Exceptional circumstances “disconnect” the inflationary element in the sentence that is attributable to Parliament’s deterrent objective (the five-year minimum).
  • The Table 1 starting points are set on the basis that a minimum of five years will ordinarily apply.
  • This means they are, in essence, calibrated upwards to reflect that deterrent policy.
  • When exceptional circumstances are found, the court has, by definition, decided that it would be arbitrary or disproportionate to apply that minimum to the particular offender.
• Therefore, as a matter of principle, a court must reduce the starting point to remove or reduce that deterrent uplift, even if it continues to sentence by reference to Table 1.
• This “decoupling” from the minimum-term rationale is conceptually distinct from:
  • ordinary personal mitigation (e.g. good character, youth, remorse, mental health affecting culpability);
  • and ordinary aggravation (e.g. connection with drug dealing, storage in a home with children).
• In Otero, this was described as an obligation, after finding exceptional circumstances, to:
  • “suitably reflect the fact that the starting point had been fixed by reference to the minimum term”; and
  • then make a “very substantial downward adjustment” to reflect those exceptional circumstances and mitigation, consistently with Parliament’s rationale.

In Barrett, the Court observed that:

• The prosecution and defence had not put Rehman, Otero, or Luke Smith to the Recorder (para 23).
• Had they done so, the Recorder – described as conscientious and thorough – would undoubtedly have addressed the Rehman/Otero point.
• Because she apparently did not undertake a discrete reduction to account for exceptional circumstances as such (distinct from general mitigation), her approach was incomplete.

The Court then states (para 23):

These cases appear to us to demonstrate that as a matter of principle the existence of exceptional circumstances can, depending on the precise nature of those circumstances, act to disconnect the inflationary element attributable to deterrence which is the rationale for imposing a five-year minimum term. That decoupling would of itself call for a consideration of some reduction from the Table 1 starting point, independently of any reduction for mitigation.

That passage is the key new clarification: any judge who finds exceptional circumstances in a firearms minimum case must actively consider – and usually apply – a downward adjustment to the guideline starting point to remove the deterrent inflation, before or in addition to adjusting for mitigation.

6.5 Application of the principle in this case

The Court accepted that:

• The Recorder’s decision that exceptional circumstances existed was “marginal” (para 24).
• The seriousness of the offence – possession of a lethal, loaded handgun in a family home with children – remained very high (para 24, quoting again the gravity of such offences irrespective of the minimum term).

Nonetheless, even “marginal” exceptional circumstances warranted a distinct reduction from the six-year starting point, beyond that already given for mitigation. The Court assessed:

• The Recorder’s approach: six-year starting point → reduced to 4½ years after trial → then 15% plea discount → 46 months.
• The correct approach, applying the Rehman/Otero principle:
  • Six-year starting point (Category B2, Table 1);
  • Recognition that exceptional circumstances disapplied the minimum, requiring a material reduction of that starting point;
  • Resulting in a lower notional sentence after trial than 4½ years.

The Court concluded that the correct notional sentence after trial should have been:

• 3½ years (42 months), rather than 4½ years (54 months) (para 26).

This represents a substantial decoupling from the Table 1 starting point (a 2½-year reduction from the six-year starting point – though part of that reflects overall mitigation as well as the exceptional circumstances).

6.6 Plea discount

The Court upheld the Recorder’s assessment of the plea discount:

• The appellant pleaded guilty on the first day of a trial that had already been adjourned.
• She had entered not guilty pleas at the Plea and Trial Preparation Hearing.
• In those circumstances, the Recorder’s 15% discount for the guilty plea was within the orthodox range and unimpeachable.

The Court of Appeal applied the same 15% discount to its own notional after-trial sentence of 42 months, yielding:

• 42 months × 0.85 = 35.7 months, rounded up to 35 months (para 26).

6.7 Curfew time – qualifying and non-qualifying

The final aspect of the sentencing exercise concerned the credit for time spent on curfew.

6.7.1 Qualifying curfew (tagged)

The appellant had spent 647 days on an electronically monitored (qualifying) curfew. Under:

• section 325 Sentencing Act 2020, she was entitled to credit equal to half that period, rounded up.

The Court confirmed:

• Half of 647 days is 323.5 days, rounded up to 324 days (para 27).
• This credit was correctly intended by the Recorder, albeit wrongly expressed as being under the repealed s 240A CJA 2003 rather than s 325 SA 2020.

6.7.2 Non-qualifying (doorstep) curfew

The appellant had also been subject to a doorstep curfew for 75 days, presumably without electronic monitoring. The Recorder had sought to treat this as additional curfew credit under s 240A, but:

• Time spent on such a non-qualifying curfew does not fall under the statutory curfew credit scheme.
• It cannot lawfully be credited automatically in the same way as electronically monitored curfews.

The Court held that:

• This aspect of the sentence was technically unlawful (para 25).
• However, the Recorder was entitled, as a matter of discretion, to recognise the impact of the doorstep curfew by reducing the custodial term.
• The Court therefore gave effect to her intention by reducing the final sentence by a further month (paras 25–26).

Thus:

• Starting from 42 months (notional after trial);
• − 15% for plea = 35 months;
• − 1 month to reflect the doorstep curfew = 34 months (final sentence).

7. Simplifying Key Legal Concepts

• Minimum term:
  A statutory rule requiring the court to impose at least a specified length of custodial sentence (here, five years) for certain offences unless exceptional circumstances exist. It is intended to have a strong deterrent effect.
• Exceptional circumstances:
  Unusual or compelling features of the offence or offender which mean that applying the usual minimum term would be arbitrary or disproportionate. They must go beyond standard mitigation (e.g. remorse, ordinary youth, or employment prospects). Serious mental illness plus marked vulnerability in custody can amount to exceptional circumstances.
• Culpability:
  A measure of the offender’s blameworthiness – for example, whether they played a leading role; the type of weapon; whether it was loaded; and their intention or awareness.
• Harm:
  In this context, not limited to actual physical injury. It includes the risk of harm or disorder, and actual alarm or distress caused. The location of the weapon, and exposure of vulnerable people (especially children), are key factors.
• Starting point:
  The sentence identified in the guideline for a given combination of culpability and harm. It applies to a case with no aggravating or mitigating factors. The judge then moves up or down from the starting point.
• Category range:
  The band of sentences around the starting point within which the sentence will usually fall, depending on the presence of aggravating or mitigating factors.
• Notional sentence after trial:
  The sentence the court determines would have been imposed if the defendant had been convicted following a trial. It is calculated before any reduction for a guilty plea. The discount for plea is applied to this figure.
• Plea discount:
  A reduction in sentence granted to encourage early guilty pleas, which:
  • saves court time and public expense;
  • avoids the need for victims and witnesses to give evidence.
  A plea at the first opportunity can attract up to one-third off. Later pleas attract smaller discounts (e.g. 10–25%), depending on how late they are and case complexity.
• Qualifying curfew:
  A bail curfew that meets statutory criteria (typically electronically monitored) so that time spent under it must be credited against a custodial sentence under s 325 SA 2020, usually at half rate.
• Doorstep (non-qualifying) curfew:
  A curfew without electronic monitoring or otherwise not meeting the statutory criteria. It does not attract automatic credit, but a judge may reduce the custodial term to recognise its impact.
• Absolute offence:
  An offence that does not require proof of intent or even knowledge of the precise legal status of the item possessed. Many s 5 firearms offences are effectively absolute: possession alone, if the weapon has certain characteristics, is enough.
• Deterrent element:
  The part of a sentence that is elevated beyond what strict individual proportionality might require, in order to deter others (and sometimes the offender themself) from committing similar offences. The statutory minimum term is a clear expression of a strong deterrent policy.

8. Impact and Future Significance

8.1 Clarifying the duty to discount the starting point

The central significance of Barrett lies in its clear statement that once exceptional circumstances are found in a firearms minimum-term case, the sentencing court must consider a distinct reduction of the guideline starting point to remove or reduce the deterrent uplift inherent in the minimum term.

In practical terms, this means that:

• A sentencing judge cannot simply start at six years (for Category B2) and move down modestly for mitigation, reaching a sentence only slightly below five years, then apply a plea discount, without explicitly accounting for the disapplication of the minimum term.
• Instead, the judge must:
  1. Identify the starting point (e.g. six years).
  2. Recognise that this starting point embeds the minimum term’s deterrent rationale.
  3. Apply a distinct downward adjustment to reflect the fact that the statutory minimum is disapplied in this individual case (the “Rehman/Otero point”).
  4. Then consider the usual aggravating and mitigating factors, and the plea discount.

8.2 Continued relevance of Table 1

Barrett also confirms that:

• Even when exceptional circumstances exist, Table 1 remains a relevant anchor for sentence – possession of prohibited firearms is intrinsically grave.
• There is no obligation to switch to Table 2, but judges must reflect the fact that the minimum term’s policy rationale is no longer fully engaged in the same way.

This dual message helps prevent:

• On the one hand, mechanical adherence to minimum-term starting points even where doing so would be disproportionate; and
• On the other, an overreaction whereby the finding of exceptional circumstances is wrongly treated as opening the door to very low or non-custodial sentences in serious firearms cases.

8.3 Mental health as a potential exceptional circumstance

The Recorder – and implicitly the Court of Appeal – recognised that serious, documented mental health conditions, including emotionally unstable personality disorder, PTSD and bipolar disorder, especially when linked to past trauma and a high risk of self-harm in custody, can amount to exceptional circumstances when viewed holistically with other mitigating features.

This does not mean that mental health issues will routinely disapply the minimum term. The Court emphasised the decision was “marginal”. However, it underscores:

• the importance of obtaining high-quality psychiatric evidence in appropriate cases; and
• the court’s willingness to treat serious mental disorder as more than “ordinary” mitigation where its impact on culpability and custody is profound.

8.4 Guidance for practitioners

For defence practitioners:

• Where exceptional circumstances are arguable, it is vital to:
  • cite Rehman, Otero, Luke Smith and now Barrett;
  • invite the judge explicitly to recognise and reduce the “minimum-term inflation” in the starting point;
  • and provide detailed evidence on mental health, vulnerability, and any other exceptional features.

For prosecutors:

• It will be important to:
  • rigorously test whether circumstances truly meet the high threshold of “exceptional”;
  • but, if they do, accept that a significant downward adjustment from Table 1 is required in principle, even while maintaining that possession of a lethal firearm still demands substantial custody.

8.5 Curfew credit and statutory clarity

The judgment also serves as a timely reminder that:

• The operative statutory provision for curfew credit is now section 325 Sentencing Act 2020, not the repealed s 240A CJA 2003.
• Time on qualifying tagged curfew must attract automatic credit (here, 324 days).
• Time on non-qualifying curfew must be recognised, if at all, via discretionary reduction of the custodial term, not via a formal statutory credit direction.

Sentencers and advocates should ensure that references in sentencing remarks and skeleton arguments are aligned with the current legislative framework to avoid technical unlawfulness.

9. Conclusion

R v Barrett [2025] EWCA Crim 1275 is a carefully reasoned decision that consolidates and clarifies the approach to sentencing for prohibited firearms offences where the statutory minimum term is in play.

Its key contributions can be summarised as follows:

• Harm categorisation: Storing a loaded handgun in a family home where children reside justifies a Category 2 harm assessment, given the risk factors identified by the guideline.
• Use of the guideline tables: Even after finding exceptional circumstances, a judge may lawfully continue to use Table 1 rather than Table 2, provided that the sentence properly reflects the disapplication of the minimum term.
• Central principle on exceptional circumstances: Where exceptional circumstances exist so that the statutory minimum term is disapplied:
  • the guideline starting point (which incorporates the deterrent uplift) must be actively reviewed and reduced to disconnect that uplift; and
  • this reduction is conceptually distinct from, and in addition to, ordinary mitigation.
• Mental health and vulnerability: Serious, diagnostically supported mental disorders, especially where linked to significant trauma and heightened risk of self-harm in custody, can contribute to a finding of exceptional circumstances, though such findings may be “marginal” and must be carefully justified.
• Curfew credit: The judgment clarifies that:
  • curfew credit is governed by s 325 SA 2020, not s 240A CJA 2003;
  • qualifying tagged curfew attracts statutory credit;
  • non-qualifying curfew must be reflected, if appropriate, via discretionary sentence reduction.

By reducing the appellant’s sentence from 46 months to 34 months, the Court of Appeal both corrected technical errors and, more importantly, articulated a guiding principle for future cases: when Parliament’s minimum-term framework is disapplied because it would be arbitrary or disproportionate in light of exceptional circumstances, sentencing judges must consciously and transparently recalibrate their use of guideline starting points to remove the minimum term’s deterrent inflation, while still reflecting the intrinsic gravity of possessing a lethal firearm.