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Knives and Offensive Weapons

Date produced: January 2012
Title: Knives And Offensive Weapons
Offence: Having an Offensive Weapon in a Public Place. Having an article with a Blade or point in a Public Place. Having an article with a Blade or point or offensive weapon on school premises.
Legislation: Section 1 of the Prevention of Crime Act 1953. Section 139 of the Criminal Justice Act 1988. Section 139A of the Criminal Justice Act 1988
Mode of Trial: Either Way
Statutory Limitations & Maximum Penalty: Summary Maximum 6 months and/or £5,000 fine, on Indictment 4 years, or fine or both. 2+3: Summary Maximum 6 months and/or £5,000 fine, on Indictment 4 years, or fine or both. If committed before 12th February 2007, 2 years maximum on Indictment

AGGRAVATING FACTORS

Factors indicating higher culpability: offender's intention

  • Particularly dangerous weapon.
  • Specifically Planned use of weapon to commit or threaten violence or to intimidate others.
  • Offence motivated by hostility towards minority individual or group, based on race, religion or gender.
  • Offender having weapon whilst under the influence of drink or on drugs.
  • Offender operating in a group or gang

Factors indicating greater degree of harm: Circumstances or location of offence

  • School, hospital, or any other place where vulnerable people may be present.
  • If committed at a large public gathering especially where there is a risk of disorder.
  • If committed on Public transport, on licensed premises, or business premises where public services are performed, as in a doctor's surgery, or where public servants perform their duties.
  • If committed whilst on bail.

Nature of weapon

  • Is not the primary determinant of seriousness - a billiard cue, or knuckle-duster can be used to cause fear and may be at least as serious as a more obviously dangerous weapon, such as a knife or an acid spray, dependent on circumstances in which offender has weapon e.g. if carried in self defence, with no attempt to use it. 
  • Weapons offensive per se, or designed or adapted to cause serious injury such as flick knives, butterfly knives, or sword sticks provide evidence of intention.

MITIGATING FACTORS.

Factors indicating lower culpability

  • Weapon carried on a temporary basis.
  • Original Possession legitimate e.g. in the course of trade or business of an individual or group

PRINCIPLES

  • The aggravating and mitigating factors set out above are relevant to the sentencing exercise in both the Crown and Magistrates' Court.
  • Concurrent sentences will be appropriate if the weapons offence is ancillary to a more serious offence, consecutive sentences being appropriate if the offences are distinct and independent.
  • Offence seriousness is evaluated by considering, the offender's intention, the circumstances of the offence and the nature of the weapon involved - see the aggravating factors above. 

Relevant sentencing Guidelines (If any)

No Crown Court Sentencing Guideline exists for cases committed for trial or sentence on Indictment, so the sentencing exercise must follow the guidance given by the Lord Chief Justice in  the guideline case of  Povey & Ors, R. v [2008] EWCA Crim 1261 applying but distinguishing  Poulton and Celaire [2002] EWCA Crim 2487

The effect of Povey is that a court's primary sentencing principles for this offence are protection of the public, and reduction of these offences by courts passing deterrent sentences.   In clear terms this guideline case establishes an obligation on courts to pass severe sentences, for public policy reasons,  on those who carry offensive weapons, especially knives, because of the increased prevalence of such offences:-

  • "Offences of this kind, carrying an offensive weapon or knife, have recently escalated. They are reaching epidemic proportions. Every knife or weapon carried in the street represents a public danger and therefore in the public interest this crime must be confronted and stopped. The courts will do what they can to help reduce, and, so far as practicable, eradicate it. In our view, it is important for public 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. Any conviction should be recorded and then the offender sentenced. 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 it deserves."
  • Conditions now are much graver than they were five and a half years ago and the guidance given in Poulton and Celaire [2002] EWCA Crim 2487, 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.
  • 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.

Relevant Sentencing Case Law : the Appeals in Povey

R.v. Povey (2008): D pleaded G to having a bladed article - kitchen knife with 6" blade, and having an offensive weapon - flick-knife both found in his pocket at 12:45 am. Age 50 yrs with 97 convictions one of which was manslaughter by stabbing victim, and offences of violence. 16 months on each to run concurrently not excessive.

R.v. McGeary: D1 pleaded G to having an offensive weapon - kitchen knife in sock which he carried to confrontation in the middle of the night with two other defendants. D2 had a knife and D3 a metal pole. Police arrived and intervened before any violence between men All 3 sentenced to 4 months. D1, 36 years, and had 2 old convictions. 4 months was not excessive. Longer sentences were justified and appropriate. D1 fortunate.

R.v. Pownall: D pleaded guilty to possession of drugs and having a bladed article, a sharpened letter opener, when stopped at ticket barrier at New Street Station, Birmingham. Aged 36, previous convictions for dwelling burglary and bladed knives found in his possession previously. D, given 9 months consecutive for bladed article to two other custodial sentences. Neither excessive, nor wrong in principle on totality.

R.v. Bleazard: D in breach of ASBO for possession of a bladed article, pleaded guilty to 2 counts of having a bladed article. Pushed his way through crowd waiting to see the Queen in Huddersfield. Found to have a felling axe in a carrier bag. Bailed. Stopped 3 weeks later at 1:30 am in possession of a Stanley knife. Aged 34, no previous custodial sentences. Given 3 years consecutive to ASBO breach for felling axe, and 18 months consecutive for Stanley knife. Entirely appropriate not excessive.

Relevant Sentencing Case Law : since  R.v. Povey

R. v Gaskin [2008] EWCA Crim 2116
D pleaded guilty to having a bladed article.
D causes damage to taxi and driven to police station. When searched found to have a knife with a Stanley knife blade, in the pocket of his jeans. The blade is held within what might be described as a metal sheath, which folds back into the handle of the knife. Typical of a knife that might be used by a workman in appropriate circumstances, but also a vicious weapon if used as a weapon. 22 years of age with previous for having both offensive weapons and bladed articles. 6 months was not excessive.

R. v Watson [2009] EWCA Crim 4
D a youth of previous good character in drink produces a machete in living room and threatens mother then rearms himself with machete and issues threats to an Asian male (affray). Committed for sentence, and receives 4 and a half months for having a bladed article consecutive to sentence of 4 and a half months for affray. Not wrong to impose consecutive sentence for bladed article: sentence reduced on facts to 3 months as bladed article not racially aggravated.

R. v Sherry [2009] EWCA Crim 229
D, at about midnight, returned to a public house and threw a brick through the window. He was arrested not far away. As police officers approached he threw a knife with a 12 inch blade over a railway bridge. He said that he had gone home to arm himself with the knife after he had left the public house. 25 years of age with previous for violence. 8 months consecutive sentence for the offence of having an offensive weapon was entirely right in principle, not only because the offence was committed when the appellant was subject to a community order but also to reflect the need identified by this court in R v Povey & Ors [2008] EWCA Crim 1261 to treat this offence with the seriousness it deserves.

R. v Gibson [2009] EWCA Crim 673
D went into a shop in with a group of young people. A shop assistant became suspicious and followed him out of the store. He was stopped by a police officer who discovered that he had stolen a bottle of wine. D was obviously drunk and may also have been under the influence of drugs. In D's right hand there was an open lock-knife which had a blade of about two-and-a-half inches in length. One of the officers asked the applicant what he proposed to do with it. He replied that he was going to "stick" the officer with it. A second lock-knife was found in his shirt pocket. D, 20 years old, with previous but none for carrying weapons. Consecutive sentence of 12 months YOI for offensive weapon, with 12 months concurrent for bladed article severe but not excessive 

R. v Killeen [2009] EWCA Crim 711
D arms himself with a claw hammer whilst under influence of drink and drugs, and uses it in an attempt to break car windscreen whilst demonstrating hostility to minority group: G plea - 18 months not excessive for having offensive weapon.

R. v Abayomi [2009] EWCA Crim 799
D had razor blade in wallet at Mount Pleasant Post Office. 19 years of age. 6 months consecutive to sentence for passport offences reduced to 3 months consecutive. Not a knife, in dangerous circumstances.

R. v Powell [2009] EWCA Crim 1018
D lost her job at Asda as a result of a dispute with the victim. D went back to the store, selected a large kitchen knife from a display and approached the victim who was working at one of the check-out tills, and pulled her hair back, causing some reddening of the scalp. The D then put the point of the knife she was carrying to the victim's throat. The V called out for help; and then sensed the knife being moved across her throat to the side of her neck. Two members of staff came over at this point, pulled the D away and disarmed her, suffering minor cuts to her hands as they did so. D of good character, early G plea. Sentence of 2 years reduced on appeal to 18 months for possession of an offensive weapon.

R. v Green [2009] EWCA Crim 1259
D convicted after trial of affray and having a bladed article a small paring knife. D drunk at time used knife to slash victim across throat.  34 years of age with horrendous record including 2 convictions for offensive weapons. On these facts 3 years not excessive for having a bladed article in a public place.  

R. v Macpherson [2009] EWCA Crim 1285
D convicted of daylight knifepoint Robbery on victims in 60's. 30 years of age with previous convictions.  6 months consecutive to 3 years for bladed article offence, e not excessive but faithful to the principles set out in the case of Povey.

R. v Wall [2009] EWCA Crim 826
D had, when travelling on a train, made unprovoked threats to a fellow passenger. He had been abusive and had threatened to stab the other passenger. He reiterated those threats after his arrest. At the time of the incident, W had had in his possession a Stanley knife blade. He did not, however, use it, and its existence was not discovered until later, when he volunteered to police officers that he had it. 3 years for having a bladed article was not excessive. Whilst severe,  the sentence reflected the principles in Povey - carrying a knife in a public place was a serious offence and was to be treated with the seriousness it deserved

Attorney General Reference No 6 of 2009 [2009] EWCA Crim 1132 
Wounding with intent and having an offensive weapon (multi-tool pen knife with a three to four inch blade.)  D aged 17 years and good character: 18 month community order replaced by 24 months detention and training order on both counts.

Moloney, R. v [2009] EWCA Crim 2244 
D picks up a bottle or glass, smashes it and lunges at doorman in restaurant: 3 years for possession of an offensive weapon not challenged as excessive on appeal.

R. v Hill (David) [2009] EWCA Crim 2357 
At 8.20 pm officers attended an address. D had just left, ordered to stop but he ran away.  D chased, but before D and a diver's knife with an 11 cm blade in a holster fell from his jacket. D was caught, but struggled and consequently was handcuffed. He said to the officers: "Don't fk with me, I've got a knife" and as he was put to the ground added: "Fk off; I'm going to do you all. I have more knives on me." D was in possession of two long-handled Samurai swords, one with a blade 30 cm, and the other 40 cm. At no stage during the struggle did he attempt to use any of these weapons. Convicted after a trial of 3 counts of having a bladed article, and sentenced to 12 months on each to run concurrently. Applying Povey sentence not excessive.

R. v L [2009] EWCA Crim 1818
D gatecrashes party and is removed. Returns with friend who has replica gun. D has a penknife and waves it around causing fear amongst guests: D drunk. 12 months YOI not excessive. R.v. Povey approved and applied.

R. v Coyne [2009] EWCA Crim 2818
D a class A drug addict stole a bottle of whisky from Asda in Walsall. He was seen to do so by a security guard who stopped him outside the store. As the security guard tried to take hold of him, D produced a knife which he "moved up and down rapidly". The security guard, permitted the D to escape, concerned not only for his own safety, but for that of members of the public who were close by.

3 days later the appellant was arrested by the police in the town centre. When searched, he was found to be in possession of another knife. For 2 offences of having a bladed article in a public place, received 18 months plus 6 months consecutive. 24 months imprisonment in total was severe but not excessive, as within the Povey guideline.

R. v Parkin [2010] EWCA Crim 2280
11:30 pm D in possession of a knife whilst breaking windows on a car. Disturbed by victim who confronts D and his accomplice. D threatens to stab victim, and tries to slash victim with knife. Convicted after trial of possession of an offensive weapon.

12:30 am disturbed interfering with another car by another victim and produces two screwdrivers.  D was holding a screwdriver. D threatened to stab the victim with it. D lunged at victim but he managed to wrestle the screwdriver from D.  D then produced a second screwdriver from his pocket and started waving that around too. Again, the victim managed to wrestle it from his control. Pleaded guilty to having an offensive weapon. D 26 yrs with previous. Sentenced to 3 years for knife with 2 years consecutive for screwdriver. 5 years in total not excessive.   

R. v Bhebe (Tazviona) [2010] EWCA Crim 1045
At about 6.15pm the D went upstairs on a bus. There were some passengers sitting at the back of the bus, and the 17 year-old female victim, was sat alone in one of the front seats. The D went to sit in the middle of the upper deck. The D moved from the seat at which he had been sitting to the front of the bus near to the victim. The D asked her to move her bags which were on the seat next to her, and she did so. The victim then tried to leave, and she alleged that he blocked her path. She said he could sit down as she was getting off, and at this point he reached down to his ankle and produced a large kitchen knife with a blade 7.5 inches long, which he brandished at her. She pushed past him and went downstairs. She recognised someone she knew and eventually that person escorted her off the bus. The V was visibly distressed.  Aged 38 with previous conviction for bladed article: 30 months not excessive: Povey applied 

R. v Spriddell (Sean) [2010] EWCA Crim 583
The D was working as a security guard on a building site in London. He used to sleep overnight in his van. Police officer searched the van. In the driver's door he found a large bayonet type Army knife with a 7.5 inch blade. The knife was sheathed, covered up and out of sight. Convicted after at trial of having a bladed article.  40 years, previous convictions, on licence and on bail. 12 months imprisonment not excessive. Tough sentence, but Povey is intended to produce tough sentences.  

Qayum, R. v [2010] EWCA Crim 2237 (16 September 2010):
Theft, possession of heroin and having a bladed article in a public place - kitchen scissors produced with threat to stab security guard.  D aged 28, previous for these offences and in breach of a suspended sentence. 9 months consecutive for bladed article. Correct to pass consecutive sentence. After a trial had it been a knife 2 years would have been appropriate starting point, but because scissors 18 month starting point. Sentence increased from 9 to 12 months consecutive for bladed article: R.v. Povey approved and applied.

R. v Ellis (Lee) [2010] EWCA Crim 2444: 
A householder heard noises coming from outside his garage and went to investigate. He found the D nearby. He challenged the D who produced a knife and prodded with it at the damage to the garage. When the D was arrested he was also found to have a crowbar with him. 15 months consecutive for the knife with 6 months concurrent for the crowbar not excessive.

R. v Tourle [2011] EWCA Crim 1689
Having been arrested for that theft, D was taken to the police station. As his rucksack was being searched, he said: "Mind out, there's a razor blade in the front pocket". Found in the front pocket of the bag was a blade typically used in a Stanley knife. He said that he had used the blade in the past to cut drugs, and he never used it or intended to use it as a weapon.22 years of age. A very substantial record of 29 convictions- five previous convictions for possessing a bladed article and two for possessing an offensive weapon in a public place.

Explaining Povey the "serious offence" referred to in that case is the mere possession of a knife or other bladed article in a public place, without more - without it being used, and without any intention it should be used although, of course, any use or intent would be an aggravating feature. 8 months, consecutive even on a plea, whilst severe, not excessive.

The Povey judgement has been crucial in enabling courts to correctly assess the seriousness of these offences at sentence, especially where a knife is involved. It has been cited with approval  to sustain the application of the correct minimum tariff in murder cases : R.v. M [2010] 2 Cr. App. R. (S.) 19, and successful references by the AG against Unduly Lenient Sentences where the injury was caused by the D using a knife: Attorney General's Reference (No.30 of 2010), [2010] EWCA Crim 1722 

Relevant Sentencing Council Guideline

  • Only a Magistrates' Court Sentencing Guideline exists. It is effective from the 4th August 2008, and applies only to cases heard in the Magistrates' and to the Crown Court hearing appeals or sentencing for summary only offences. 
  • The aggravating and mitigating factors set out above appear in the Guideline
  • Povey was decided after the Magistrates' Court sentencing guideline was published. The Sentencing Council responded to the concerns of the Court of Appeal comments in Povey over knife crime by issuing,  with examples,  a note,  revising how the Magistrates Court guideline was now to be applied,  acknowledging, that more cases would have to be sentenced in the Crown Court: see http://sentencingcouncil.judiciary.gov.uk/docs/sentencing_guidelines_knife_crime.pdf
  • The Starting points and Range of sentences in the Magistrates Court appear in the table below. NB this table is not produced by the Sentencing Council, but incorporates the guidance in the revising note.
  • Note: the changes in the range of sentences are not fully developed in the note. A circumstance is "dangerous" if there is a real possibility that the weapon or knife could be used.

Offence seriousness (culpability and harm) Starting points and ranges based on first time adult offender pleading not guilty

LEVEL 1

  • Examples of nature of activity: Having an offensive weapon or bladed article, other than a knife, not in dangerous circumstances, and not used to threaten or cause fear.
    Starting point: High level community order 
    Range: B and C fine to 12 weeks custody
  • Examples of nature of activity: Having an offensive weapon or bladed article, which is a knife, not in dangerous circumstances, and not used to threaten or cause fear.
    Starting point: Close to 12 weeks custody 
    Range: B and C fine to 12 weeks custody

LEVEL 2

  • Examples of nature of activity: Weapon, other than a knife, not used to threaten or cause fear but offence committed in dangerous circumstances.
    Starting point: 6 weeks custody
    Range: High Level community order to Crown Court
  • Examples of nature of activity: Knife not used to threaten or cause fear but offence committed in dangerous circumstances
    Starting point: Custodial sentence in excess of 6 months
    Range: Committal for trial to the Crown Court

LEVEL 3

  • Examples of nature of activity: Weapon used to threaten or cause fear and offence committed in dangerous circumstances 
    Starting point: In excess of 6 months custody  
    Range: In excess of 6 months custody so venue is the  Crown Court

Ancillary Orders

  • A forfeiture order for the weapon or bladed article will almost always be relevant.
  • Compensation for any victim.
  • ASBO applications may be appropriate.
  • Exclusion orders: where the offence was committed on licensed premises and there was actual or threatened violence the offender may be excluded from any licensed premises from 3 months to 2 years.
  • Restraining orders may now be considered for any offence and may need to be considered to exclude the offender from visiting particular places, or if offence was committed in circumstances of domestic violence, or in any other circumstances.
  • Football banning orders may be relevant if the weapon or bladed article was found in circumstances where the offence qualifies as being football related.
  • Drink banning orders may be may now be considered for any offence and relevant if the offender committed the weapon or bladed article offence whilst in drink. 

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