Offensive Weapons, Knives, Bladed and Pointed Articles
- Guidance - Selecting the Charge
Prosecutors should recognise that carrying an offensive weapon, or a knife, or a bladed/pointed article is a serious offence. The unlawful provision and possession of all weapons encourages violence and can cause serious injury and death in addition to facilitating other criminal offences.
There is a strong public interest in deterring the carrying and use of knives and other offensive weapons, (see the National Police Chiefs' Council Guidelines on the Investigation, Cautioning and Charging of Knife Crime Offences (2015)). Accordingly, where there is sufficient evidence to provide a realistic prospect of conviction, the public interest will normally require a prosecution.
Where the evidence discloses that the defendant has used a knife to cause injury/threaten violence/cause fear, or has carried a knife in a way which contravenes a possession offence, there will be a number of compelling public interest factors in favour of prosecution which should be accorded proper weight. These include the following:
- a conviction is likely to result in a significant sentence;
- a weapon was used or violence threatened during the commission of another offence;
- the offence is widespread in the area where it was committed;
- the offender was a ringleader;
- evidence that the offence was premeditated;
- there are grounds for believing the offence is likely to be repeated;
- prosecution would have a significant positive impact on maintaining community confidence; or
- a culture of carrying weapons encourages violence and may lead to more serious criminal behaviour.
Depending on the facts, there may also be other important public interest factors supporting prosecution, for example, that the offence was committed in a hospital or public house, or that the defendant was motivated by hostility to another individual or group.
The Code for Crown Prosecutors makes clear [paragraph 4.8] that a prosecution will usually take place unless there are public interest factors tending against prosecution which outweigh those tending in favour.
It has been agreed between ACPO and the CPS that a more serious response is required for youths aged 16 and 17. The starting point is for the police to charge youths aged 16 and 17 unless there are exceptional circumstances. Diversion in accordance with sections 66ZA and 66ZB of the Crime and Disorder Act 1998 the Ministry of Justice/Youth Justice Board Guidance on Youth Cautions (April 2013), the Ministry of Justice/YJB Youth Out-of-Court-Disposal Guide for Police and Youth Offending Services (April 2013) and ACPO Youth Offender Case Disposal Gravity Factor System (March 2013) may be appropriate in some cases.
However, it is recommended that police and prosecutors apply the following approach when dealing with knife crime offences allegedly committed by youths.
First arrest of a youth of any age for possession of an offensive weapon or sharply pointed blade, with aggravating factors, (circumstances of possession, fear caused, degree of danger) will result in the first instance with a charge.
First arrest of a youth of aged 16 years or over, for simple possession of an offensive weapon or sharply pointed blade, with no aggravating factors will normally result in a charge.
First arrest of a youth aged under 16 years for simple possession of an offensive Weapon or sharply pointed blade, with no aggravating factors, will result, in the first instance with a Youth Conditional Caution. This must be supported by an appropriate YOT intervention, preferably with elements focussed on anti-knife crime education.
The second arrest of a youth under 16 for simple possession of an offensive weapon or sharply pointed blade will result in a charge (unless, in exceptional circumstances, two years have passed and it is considered appropriate to give another youth conditional caution), whether or not there are aggravating features.
The new offence of threatening a person in public or on school premises will result in a youth aged 16 or over going straight to charge, as this offence carries a minimum sentence of a four months Detention and Training Order and therefore should not be dealt with using an out of court disposal.
Paragraph 6.1 of the Code for Crown Prosecutors states that charges should be selected which:
- reflect the seriousness of the offending and extent of the offending supported by the evidence;
- give the court adequate powers to sentence and impose appropriate post-conviction orders; and
- enable the case to be presented in a clear and simple way.
This means that Crown Prosecutors may not always continue with the most serious charge where there is a choice nor continue with more charges than are necessary.
However, where there is sufficient evidence to prove an offence of carrying an offensive weapon or bladed or pointed article in a public place or school in addition to another offence it is good practice to charge both offences, even where the knife or weapon has been used during the commission of the other offence.
This will ensure that the prosecution case and the basis of any pleas are clear. It will also allow an offender to be brought to justice for an offence of possession, and allow the court to order the forfeiture and destruction of the weapon if the defendant is acquitted of the other offence.
When a defendant is in possession of an offensive weapon / knife / bladed article while committing a public order offence, the level of charging should be determined with reference to Public Order Offences incorporating the Charging Standard, elsewhere in the Legal Guidance.
The most appropriate charges are likely to be drawn from the following:
- Section 1 Prevention of Crime Act 1953 (Offensive Weapons) (Archbold 24-106 to 24-124)
- Section 139 Criminal Justice Act 1988 ( Bladed and Pointed Articles) (Archbold 24-125 to 24-128)
- Section 139A Criminal Justice Act 1988 (Offensive Weapons, Bladed and Pointed Articles on school premises) (Archbold 24-129 to 24-131a)
- Section 28 Violent Crime Reduction Act 2006 (Using another person to mind a dangerous weapon) (Archbold 24-143 to 24-146)
- Section 1 Knives Act 1997 (Unlawful marketing of knives etc.) (Archbold 24-133 to 24-142) (Stones 8-22728 to 8-22738)
- Section 1 Restriction of Offensive Weapons Act 1959 (manufacture, sale etc. of flick knives and gravity knives) (Stones 8-22649)
- Section 1 Crossbows Act 1987 ( sale/let crossbows to a person under 18) (Stones 8-22660)
- Section 2 Crossbows Act 1987(purchase/hire of crossbow by a person under 18) (Stones 8-2261)
- Section 3 Crossbows Act 1987 Unsupervised possession of a crossbow by a person under 18) (Stones 8-22662)
- Section 141 Criminal Justice Act 1988 (manufacture, sale etc. of offensive weapons) ( Stones 8-22684)
- Section 141A Criminal Justice Act 1988 (sale of knives, axes, swords etc. to a person under 18) (Stones 8-22685)
Section 1 of the Prevention of Crime Act 1953 prohibits the possession in any public place of an offensive weapon without lawful authority or excuse. (Archbold 24-106a.)
The term 'offensive weapon' is defined as: "any article made or adapted for use to causing injury to the person, or intended by the person having it with him for such use".
The courts have been reluctant to find many weapons as falling within the first limb of the definition and reliance should usually be placed upon the second. On that basis, it must be shown that the defendant intended to use the article for causing injury (Archbold 24-115).
Lord Lane, CJ. in R v Simpson (C) (78 Cr. App. R. 115), identified three categories of offensive weapons:
- those made for causing injury to the person i.e. offensive per se. For examples of weapons that are offensive per se, see Criminal Justice Act 1988 (Offensive Weapons) Order 1988, (Stones 8-22745) and case law decisions. (Archbold 24-116). The Criminal Justice Act (1988) (Offensive Weapons) (Amendment) Order 2008 came into force on 6th April 2008 with the effect that a sword with a curved blade of 50cm or more (samurai sword), has been added to the schedule to the Criminal Justice Act 1988 (Offensive Weapons) Order 1988;
- those adapted for such a purpose;
- those not so made or adapted, but carried with the intention of causing injury to the person.
In the first two categories, the prosecution does not have to prove that the defendant had the weapon with him for the purpose of inflicting injury: if the jury are sure that the weapon is offensive per se, the defendant will only be acquitted if he establishes lawful authority or reasonable excuse.
Section 1A of the Prevention of Crime Act 1953 makes it an offence to unlawfully and intentionally threaten another person with an offensve weapon in a public place, in such a way that there is an immediate risk of serious physical harm to that other person.
For the purpose of this section, serious physical harm is defined as grevous bodily harm. Both 'public place' and 'offensive weapon' have the same meaning as in section1 above.
Unlike an offence contrary to section1, where a person is convicted of an offence contrary to section 1A the court must (in the case of an adult) impose a custodial sentence of at least 6 months, unless it would be unjust to do so. The power to make a community order is not exercisable in circumstances where the mandatory minimum sentence condition is met.
In the case of a youth aged 16 or 17 when convicted, the court must impose a detention and training order of at least 4 months. The power to make a youth rehabilitation order is not exercisable in circumstances where the mandatory minimum sentence condition is met.
In addition, if a person is found not guilty (whether on indictment or not) of an offence contrary to section 1A, but it is proved that they committed an offence of simple possession of an offensive weapon they can be convicted of the basic offence of posession in the alternative.
The defendant is entitled to be acquitted if he shows on the balance of probabilities that he had "lawful authority or reasonable excuse" for having the weapon (Archbold 24-121-122). Where details of a defence are given in interview or in a defence statement, the CPS should consider whether evidence is available to rebut the defence and should liaise with the police if additional enquiries or evidence are necessary.
Section 139 of the Criminal Justice Act 1988 prohibits having with you, in a public place of any article which has a blade or is sharply pointed, (including a folding pocket knife if the cutting edge of its blade exceeds 7.62cm/3 inches) (Archbold 24-125).
Section 139A of the 1988 Act extends the geographical scope of both of the above offences to school premises.
For the purposes of sections 139 and 139A of the Act:
- a butterknife, with no cutting edge and no point is a bladed article; (Booker v DPP 169).P.368, DC);
- a screwdriver is not a bladed article; R v Davis  Crim L.R. 564 CA);
- a "lock knife" doe not come into the category of "folding pocket knife2 because it is not immediately foldable at all times; (R v Deegan  2 Cr. App. R. 121 CA).
Section 139AA of the Criminal Justice Act 1988 makes it an offence to unlawfully and intentionally threaten another person with an offensive weapon or bladed article in a public place or on school premises, in such a way that there is an immediate risk of serious physical harm to that other person.
For the purpose of this section, serious physical harm is defined as grevous bodily harm. The term 'public place' has the same meaning as in section 139 above and 'school premises' has the same meaning as in section 139A above.
Unlike an offence contrary to section 139, it matters not whether a person was initially in lawful possession.
Where a person is convicted of an offence contrary to section 139AA the court must (in the case of an adult) impose a custodial sentence of at least 6 months, unless it would be unjust to do so. the power to impose a community order is not exercisable where the mandatory minimum sentence condition is met.
In the case of a youth aged 16 or 17 when convicted, the court must impose a detention and training order of at least 4 months. The power to impose a youth rehabilitation order is not exercisable where the mandatory minimum sentence condition is met.
in addition, if a person is found not guilty (whether on indictment or not) of an offence contrary to section 139AA, but it is proved that they committeed an offence contrary to section 139 or 139A they can be convicted of the basic offence in the alternative.
Powers to search for blades/points
The police power to search school premises for bladed and pointed article and offensive weapons was amended by section 48 Violent Crime Reduction Act 2006 with effect from 31 May 2007 and allows the police to exercise this power if there are reasonable grounds for suspecting that an offence under section 139A (having a bladed or pointed article or offensive weapon on school premises) is being committed.
Section 550AA Education Act 1996 gives members of staff power to search school pupils for bladed and pointed articles and offensive weapons.
Section 85B Further and Higher Education Act 1992 gives members of staff power to search students at an institute for further education for bladed and pointed articles and offensive weapons. Section 47 Violent Crime Reduction Act 2007 extends this power to search to staff at attendance centres with effect from 1 October 2007.
The defendant is entitled to be acquitted if he shows on the balance of probabilities that:
- he had "good reason or lawful authority" for having the bladed or pointed article; or
- he had the article for use at work; or
- he had the article for religious reasons; or
- he had the article as part of a national costume; (Archbold 24-125).
The defendant does not discharge the burden of showing "good reason" just by providing an explanation that is not contradicted by the prosecution evidence: (Archbold 24-128). Where details of a defence are given in interview or in a defence statement, the CPS should consider whether evidence is available to rebut the defence and should liaise with police if additional enquiries or evidence are necessary. Any defence should be tested by robust cross examination.
Section 52 of the Courts Act 2003 provides court security officers acting in the execution of their duty with the power to search
- any person who is in, or seeking to enter, a court building, and
- any article in the possession of such a person
Section 54 of the Courts Act 2003 provides court security officers with the power to request the surrender or seize an article that may:
- jeopardise the maintenance of order in the court building (or a part of it)
- put the safety of any person in the court building at risk, or
- be evidence of, or in relation to, an offence
Section 146 of the Coroners and Justice Act 2009 amends the Courts Act 2003 by inserting section 55A thereby allowing court security officers to retain a knife seized for so long as necessary to enable them to draw it to the attention of a constable.
Mode of Trial
There are no mode of trial guidelines for the either way offences involving knives and weapons, but trial on indictment should be recommended where the magistrates sentencing powers are inadequate because of the presence of one or more aggravating features including:
- the defendant was in possession of more than one weapon;
- the weapon was used or produced whilst committing another offence;
- serious injury was intended or caused;
- the offence was a "hate crime";
- the location of the offence;
- the weapon was recovered in connection with drug dealing, gang association or any other organised criminal activity.
Prosecutors are reminded that where a weapon is used in dangerous circumstance to threaten, or cause fear, the Sentencing Guidelines Council recommends that the starting point for a first time adult offender would be a custodial sentence of 6 months if he pleads not guilty, but was subsequently found guilty by the courts. (Please see the guidance below.)
Prosecutors should assist the court by drawing the Sentencing Council's guidance to its attention and reminding the court of the power to commit for sentence where the seriousness of the offence requires a custodial sentence in excess of 6 months.
The Sentencing Guidelines Council issued guidance to magistrates' courts sentencing offenders on or after 4 August 2008, following the Court of Appeal's judgment in R v Povey and others  EWCA Crim 1261 Note: The recommendation in R v Povey  EWCA Crim 1262 and others that the guidance should normally be applied at the most severe end of the appropriate range of sentences. (See below in this guidance.)
The guideline provides three categories of seriousness:
Level One applies where a person has a weapon or bladed article, is not in a "dangerous circumstance" and the weapon or bladed article is not used to threaten or cause fear.
Level Two applies where a weapon is in the possession of the offender in "dangerous circumstances" but is not used to threaten or cause fear.
Level Three applies where a weapon is used in "dangerous circumstances" to threaten or cause fear.
"Dangerous circumstance" has not been judicially defined but was used in the previous Court of Appeal guideline judgment in Celaire and Poulton. In relation to a knife, a circumstance is likely to be dangerous if there is a real possibility that it could be used.
In making its decision on sentence, the magistrates' court is required to consider offence seriousness, (culpability and harm) and aggravating features and then go on to consider offender mitigating features.
Identify the appropriate starting point.
Starting points based on first time offender pleading not guilty.
Example of nature of activity: Weapon no used to threaten or cause fear
Starting Point: High level community order where the offensive weapon is not a knife. Close to 12 weeks custody where the weapon is a knife
Range: Band C fine to 12 weeks custody
Example of nature of activity: Weapon not used to threaten or cause fear but offence committed in dangerous circumstances
Starting Point: 6 weeks custody where the weapon is not a knife. A custodial sentence in excess of 6 months where the weapon is a knife
Range: High level community order to Crown Court
Example of nature of activity: Weapon used to threaten or cause fear; and offence committed in dangerous circumstances
Starting Point: A custodial sentence in excess of 6 months (Crown Court)
Range: Crown Court
Consider the effect of aggravating and mitigating factors (other than those within examples above).
Common aggravating and mitigating factors - the following may be particularly relevant but these lists are not exhaustive.
Factors indicating higher culpability:
- Particularly dangerous weapon
- Specifically planned use of weapon to commit violence, threaten violence or intimidate
- Offence motivated by hostility towards minority individual or group
- Offender under influence of drink or drugs
- Offender operating in group or gang.
Factors indicating greater degree of harm:
- Offence committed at school, hospital or other place where vulnerable persons may be present
- Offence committed on premises where people carrying our public services
- Offence committed on or outside licensed premises
- Offence committed on public transport
- Offence committed at large public gathering, especially where there may be risk of disorder.
Factors indicating lower culpability:
- Weapon carried only on temporary basis
- Original possession legitimate e.g. in the course of trade or business.
In making its decision on sentence, the magistrates' court is required to consider offence seriousness, (culpability and harm) and aggravating features and then go on to consider offender mitigating features.
It may be helpful for the court to consider the questions posed by the Court of Appeal in the case of R v Avis  1 Cr. App. R. 420 CA:
- What sort of weapon is involved? Genuine firearms are more dangerous than imitation firearms. Loaded firearms are more dangerous than firearms for which no ammunition is available. Possession of a firearm which has no lawful use (such as a sawn off shotgun) will be viewed more seriously than possession of a firearm which is capable of lawful use.
- What (if any) use has been made of the firearm? It is necessary for the court, as with any other offence, to take account of all circumstances surrounding any use made of the firearm - the more prolonged and premeditated and violent the use, the more serious the offence is likely to be.
- With what intention (if any) did the defendant possess or use the firearm? Generally speaking, the most serious offences under the Act are those which require proof of a specific criminal intent (to endanger life, to cause fear of violence, to resist arrest, to commit an indictable offence). The more serious the act intended, the more serious the offence.
- What is the defendant's record? The seriousness of any firearms offence is inevitably increased if the offender has an established record of committing firearms offences or crimes of violence.
The Court of Appeal issued the following sentencing guidance for offences of having an offensive weapon in R v Poulton; R v Celaire  1 Cr. App. R. (S)
Where the offence is committed in conjunction with another offence, the usual considerations in relation to totality apply, that is:
- a concurrent sentence will usually be appropriate if the weapons offence is ancillary to another more serious offence;
- a consecutive sentence will usually be required where the weapons offence is distinct and independent of another offence.
A balance must be struck between the offence not in itself involving injury and the public's legitimate concern that a culture of carrying weapons encourages violence and may lead to more serious criminal behaviour.
In assessing the seriousness of the offence, it is necessary to consider:
- the offender's intention;
- the circumstances of the offence; and
- the nature of the weapon(s) involved.
In R v Povey, R v McGeary, R v Pownall and R v Bleazard  EWCA Crim 1261, Sir Igor Judge, delivering the decision of the Court of Appeal in 4 appeals against sentence for offences of offensive weapon and bladed article, made the following general observations:
"Every weapon carried about the streets, even if concealed from sight, even if not likely to be or intended to be used, and even if not used represents a threat to public safety and public order." (paragraph 3.)
"In our view, it is important for confidence in the criminal justice system that the man or woman caught in possession of a knife or offensive weapon without reasonable excuse should normally be brought before the courts and prosecuted.
"For the time being, whatever other considerations may arise in the individual case, sentencing courts must have in the forefront of their thinking that the sentences for this type of offence should focus on the reduction of crime, including its reduction by deterrence, and the protection of the public.
"Even if the offender does no more than carry the weapon, even when the weapon is not used to threaten or cause fear, when considering the seriousness of the offence courts should bear in mind the harm which the weapon might foreseeably have caused. So the message is stark. This is a serious offence and it should be treated with the seriousness that it deserves." (paragraph 4.)
Sir Igor Judge then reflected on the previous decisions of the Court of Appeal including R V Poulton and Celaire  1 Cr. App. R (S) and made two further observations specific to sentencing.
"First the guideline decision of this court in Poulton and Celaire was decided in October 2002, following advice from the Sentencing Advisory Panel given in 2000. All the subsequent decisions have followed that guidance. Conditions now are much more grave than they were five and a half years ago and the guidance given in Poulton and Celaire should be applied with the current grave situation as we have endeavoured to explain it, and the sentencing considerations we have just identified clearly in mind. This is what we have done in these cases.
"Second, we recommend that any relevant guidance from the Sentencing Guidelines Council to magistrates should normally be applied at the most severe end of the appropriate range of sentences." (paragraph 5.)
It will almost always be appropriate, in the case of young offenders, to obtain a pre-sentence report before proceeding to sentence (Archbold 24-109).
There are no sentencing guidelines but some of the observations for offensive weapons (below) may be helpful.
In R v Williams  1 Cr.App.R. (S) 207 CA, a custodial sentence imposed on a 19 year old for carrying a bladed article was quashed. The Court of Appeal held that although the carrying of knives by young men is a serious problem and that there would be occasions where such offences cross the custody threshold, that was not this case, which had no aggravating factors (such as possession of a weapon with no legitimate purpose) and much mitigation. (Archbold 24-127.)
In relation to an adult offender of previous good character, the custody threshold will almost invariably be passed where he is convicted of having an offensive weapon and there is a combination of dangerous circumstances and actual use of the weapon to threaten or cause fear. (Archbold 24-109.)
A sentence at or near the statutory maximum of 4 years is appropriate where the offender:
- has previous convictions for violence or carrying weapons;
- is convicted of carrying a particularly dangerous weapon;
- has a clear intention to cause fear or injury; and
- in circumstances involving any of the aggravating factors set out below. (Archbold 24-109.)
Aggravating factors are:
- specifically planned use of the weapon to commit violence or threaten violence or intimidate others;
- hostility towards a minority group or individual or group, which may give rise to an aggravating feature, such as racial motivation within the Crime and Disorder Act 1998, sec 28; and
- acting under the influence of alcohol or drugs.
A community sentence toward the top end of the range may be appropriate where there are no aggravating features, no threat has been made and the weapon is not particularly dangerous.
Prosecutors should seek forfeiture of any knives and weapons. A Criminal Behaviour Order should be applied for where the offender's behaviour has caused or was likely to cause harassment, alarm or distress to any person and the Order is necessary to protect relevant persons from further anti-social acts by him. Reference should be made to the Ancillary Orders Toolkit elsewhere in the Legal Guidance.