Offensive Weapons, Knife Crime Practical Guidance
- Elements of the offences
- Possible defences
- Adverse inferences
- Bad character
- The decision to charge
- Applications to remand in custody
- Case management
- Safeguarding witnesses
- Evidence of impact
- Mandatory minimum sentences
- Knife Crime Prevention Orders (KCPO) LONDON ONLY
- Sale of Knives
- Power of Entry
- Responsible Retailer Agreements / HO voluntary agreement
- Underage test purchasing of knives
This Practical Guidance document sets out the approach of the Police and the Crown Prosecution Service (CPS) to knife crime offending. The document will be updated periodically to reflect changes in legislation as well as changes in any guidance or policy introduced by the Police or CPS.
This document is based on the principle that multi-agency working is essential in order to prevent and tackle serious crime and safeguard those exploited through knife crime.
Note: the document contains references to offences and Knife Crime Prevention Orders which will be introduced in the Offensive Weapons Act 2019; at the time of publication this Act is not yet fully in force.
Knife Crime Prevention Orders (KCPOs) will be introduced on a trial basis in London. Separate guidance and training has been developed for those dealing with KCPOS. After evaluation of the trial, it is anticipated KCPOs will be rolled out nationally.
This document is intended to aid the understanding of issues that may arise in connection with suspected knife crime offending. It is to be read alongside the relevant police and CPS guidance, including the CPS Legal Guidanceon Offensive Weapons, Knives, Bladed and Pointed Articles, and supports HM Government’s Serious ViolenceStrategy (April 2018).
Knife crime is a challenge that affects all of society, and to tackle it both the Police and CPS must come together with all agencies in a co-ordinated, wide-reaching and long-term effort, working with young people and the communities affected by serious violence.
- Having an offensive weapon in a public place – Section 1
- Threatening with an offensive weapon in public – Section 1A
- Having a bladed or sharply pointed article in a public place – Section 139
- Having a bladed or sharply pointed article on school or further education premises – Section 139A
- Threatening with a bladed articles in a public place or on school or further education premises - Section 139AA
- Manufacture, sale or hire, or offer for sale or hire, expose or have in their possession for the purpose of sale or hire, or lending or giving an offensive weapon to any other person – Section 141.
- Possession of prohibited offensive weapons in private: Section 141(1A) as inserted by section 46 OWA
- [Threatening with an offensive weapon etc in a private place – Section 52]
- [Delivery of bladed products to residential premises - Section 38]
- [Delivery of bladed products to persons under 18 – Section 39]
- Manufacture or sale etc. of flick knives or gravity knives – section 1 Restriction of Offensive Weapons Act 1959
- Possession of certain dangerous knives - Section 1A Restriction of Offensive Weapons Act 1959- as inserted by section 44 of OWA
- Unauthorised possession of knives and other offensive weapons in prisons – section 40CA Prison Act 1952 as added by section 78 Serious Crime Act 2015
Where a weapons offence is accompanied by another offence e.g. assault or robbery, the weapons offence should normally be charged as well as the other offence.
Prosecutors should apply sections 9.1 to 9.7 of The Code for Crown Prosecutorsas well as the Attorney General'sGuidelines on Accepting Pleas when considering acceptability of pleas.Prosecutors should only accept the defendant’s plea if: (a) the court is able to pass a sentence that matches the seriousness of the offending, particularly where there are aggravating features; (b) it provides the court with adequate powers to impose other ancillary orders, bearing in mind that these can be made with some offences but not with others.
The article does not have to be sharp: a butter knife, with no cutting edge and no point, is a bladed article. The only exception to the bladed or sharply pointed provision is a folding pocketknife, and only if the blade does not exceed 3 inches. Typically this would catch Swiss army-style knives. “Folding pocketknife” means immediately foldable, simply by pressing it into place. If any further action is required, such as pressing a button or releasing a catch (as is the case with a lock knife), the knife is not a folding pocketknife. All other bladed articles which are plainly not foldable pocketknives, for instance kitchen knives or a foldable cut- throat razor, are caught by this legislation irrespective of length. A folding pocket knife less than 3 inches will be an offensive weapon if carried with the requisite intent. Similarly, a screwdriver is not a bladed article but could be an offensive weapon.
There are three categories of weapons:
- A weapon made for causing injury to a person – “offensive per se”. Examples of these knives include a swordstick, flick-knives (see note below), shurikens (or “death stars”), butterfly knives, a handclaw, a belt buckle knife, a push dagger, a “kyoketsu shoge”, being a length of rope, cord, wire or chain fastened at one end to a hooked knife. Weapons which are manufactured for an innocent purpose, such as a razor, a penknife and some types of sheath knives, are not offensive per se.
- A weapon not made for that purpose but adapted for it e.g. objects with a razor blade inserted or mounted into them or a deliberately broken bottle.
- A weapon neither made nor adapted to injure but one which is intended by the person to be used to injure, such as where a defendant has with him a lock knife, a Stanley knife, or a dagger with intent to injure. The fact that a person is carrying an object which they go on to use to injure another is not necessarily evidence of intent; a person may lawfully carry a penknife and then use it to injure another but at the time they were carrying it, it was not an offensive weapon. This will be inferred from the defendant’s actions and the circumstances surrounding the possession. For example, following a statement to the police that the weapon was carried for self-defence, an inference could be drawn that for the purposes of defending himself a defendant would, if necessary, use the knife to cause injury. However, an intention to frighten is not enough to satisfy this, unless it is so intimidating as to be enough to produce an injury through the operation of shock.
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 is sure that the weapon is offensive per se, the defendant will only be acquitted if s/he establishes lawful authority or reasonable excuse (see below).
Flick Knives and Gravity Knives
Section 1A Restriction of Offensive Weapons Act 1959 (as amended by section 44 of the Offensive Weapons Act 2019). See section 43 of the 2019 legislation for the amended definitions of flick knives.
Has with them
Where a person uses an article offensively in a public place, the offensive use of the article is not conclusive of the question of whether he had it with him as an offensive weapon within section 1(1) PCA 1953. A person must knowingly have the item with them, with relevant considerations including the proximity between the person and the weapon, whether the weapon is immediately available to the person and the accessibility of the weapon. Having an article innocently will be converted into having the article guiltily if intent to use the article offensively is formed before the actual occasion to use violence has arisen. Once a person knowingly has an item with them, they continue to have it until they rid themselves of it. A person forgetting about an article does not negate them having it with them.
This includesany highway and any other premises or place to which at the material time the public have or are permitted to have access, whether on payment or otherwise. This means an otherwise private place is public if and so long as the public have access to it at the invitation of the landowner. Examples of places held to be public places from case law: a field where point-to-point races are held; a football stadium; hospital grounds where visitors to the hospital and their friends were permitted to enter; a public house car park during licensing hours; a caravan park; a multi-storey car park; a ferry lane and the upper landing of a block of flats in respect of which there were no notices, doors or barriers to restrain the public walking in off the street.
School and further education premises
School premises is defined as land used for the purposes of a school, excluding any land occupied solely as a dwelling by a person employed at the school; and “school” has the meaning given by section 4 of the Education Act 1996.
Further education premises is defined as land used solely for the purposes of (i)an institution within the further education sector (within the meaning of section 91 of the Further and Higher Education Act 1992), or a 16 to 19 Academy (within the meaning of section 1B of the Academies Act 2010), excluding any land occupied solely as a dwelling by a person employed at the institution or the 16 to 19 Academy.
A place other than (a) a public place, (b) a place which is part of school premises, or (c) a place which is part of further education premises.
Section 141(1A) of the 1988 legislation as inserted by section 46 of the 2019 legislation prohibits the possession in private or public of certain offensive weapons – the schedule of weapons can be found here. Note cyclone knives are now included.
Physical harm is serious if it amounts to grievous bodily harm for the purposes of the Offences against the Person Act 1861.
Depending on the offence, specific defences may be available to a person primarily being whether they can show that they had a good reason, reasonable excuse or lawful authority for having a knife with them. Other specific defences are included for some offences including but not limited to: for use at work, for religious reasons, for educational purposes or as part of a national costume. These defences are for the defendant to prove on the balance of probabilities, which means that merely providing an uncontradicted explanation is not necessarily sufficient.
There are additional statutory defences where flick or gravity knives are possessed for the purpose of museum or gallery collections. Yet further additional defences are available for a s141(1)(A) offence of possession of an offensive weapon, including but not limited to functions carried out on behalf of the Crown or visiting forces, possessing weapons of historical importance, In relation to possession of offensive weapons under s141 of the CJA 1988, or theatre, film or TV productions.
Section 47 of the 2019 legislation also introduced defences for a person charged with an offence under section 141(1) or (1A) of the Criminal Justice Act 1988 in respect of any conduct of the person relating to a curved sword, namely:
- The person’s conduct was for the purpose only of making the sword available for presentation by a Sikh to another person at a religious ceremony or other ceremonial event.
- Where the allegation is giving a curved sword to another person, to show that the person’s conduct consisted of the presentation of the sword by a Sikh to another person at a religious ceremony or other ceremonial event.
- For a person charged with an offence under section 141(1A) of the Criminal Justice Act 1988 of possession of a curved sword in private to show that a)the person was a Sikh at the time the offence is alleged to have been committed and possessed the sword for the purpose only of presenting it to another person at a religious ceremony or other ceremonial event, or (b)the sword was presented to the person by a Sikh at a religious ceremony or other ceremonial event.
- “Sikh” means a follower of the Sikh religion.
Specific statutory defences apply to knife offences in prisons and the sale of knives.
The meaning of a ‘good reason’ is for the jury to determine on the facts and circumstances of the case. It does not have a legal definition. There is no significant difference between ‘reasonable excuse’ under the PCA and ‘good reason’ under the CJA. It is for the jury to decide whether an article was for use for work, religious reasons and national costume as the statute uses words found in ordinary English language. Self-defence can amount to good reason, but only if the attack is imminent and the weapon is only carried for personal defence. Once there is no longer any threat, it is no longer reasonable to remain in possession of the knife. Carrying a knife as a precautionary measure is not a good reason. Forgetfulness alone is not a good reason, but could be in a combination with the circumstances of the acquisition, for example, aparentwhobuysaknifeand puts it in the glove compartment of their car to keep it out of the reach of a child then forgetting about it.
Where details of a defence are given in interview, a defence statement or in any other way, the investigating officer and the prosecutor should consider what reasonable lines of inquiry arise from this to establish whether or not the defence is likely to be established.
If a defendant is silent when questioned and then raises a defence at trial, the prosecutor should seek to have the court draw an adverse inference from this silence. Legislation sets out the effects of the following: the defendant’s failure to mention factswhen questioned or charged; the defendant’s silence at trial; the defendant’s refusal or failure to account for objects, substances or marks; and the defendant’s refusal or failure to account for his or his presence at a particular place. Prosecutors should ensure each condition is satisfied before seeking these inferences. However, in appropriate cases they should be sought.
Evidence of previous criminality may be relevant to a matter in issue between the parties, particularly if it casts an innocent explanation (advanced as “good reason”) in a different light or rebutting it entirely. Evidence showing that a defendant is a member of a gang involved in drug and gun crime is admissible to rebut a defence that guns and drugs found in, for example, the defendant’s home, were left there by others. This should be considered particularly in cases where a defendant raises a defence of “good reason” or claims that he did not in fact have the knives in his possession. See the legal guidance on Decision Making in Gang Related Offences for more information.
Consideration can also be given to using ‘open source’ material- for example drill music videos or participation in social media sites/activities where it can be used to rebut a defence of ‘good reason’.
More information can be found in the legal guidance on Bad Character Evidence.
All decisions to charge must be taken in accordance with the Code for Crown Prosecutors and the Director’s Guidance on Charging 6th Edition. This has 2 stages:
Evidential stage: Is there sufficient evidence for a realistic prospect of conviction? The evidence must be able to be used in court, reliable and credible, and there is no other material that might affect the sufficiency of evidence. If there is sufficient evidence, go on to consider:
Public Interest stage: Is a prosecution required in the public interest? A prosecution will usually follow unless there are public interest factors tending against a prosecution which outweigh those in favour. There is a compelling public interest in the prosecution of adults for offences involving weapons.
Offences under both the 1953 legislation and the 1988 legislation come within “ Specified Either way Offences” for the purposes of issuing a simple caution – see "Simple cautions: guidance for police and prosecutors"
The current NPCCandCPSpolicyis to charge suspects aged 16 or over for first-time offences involving knives, and also to charge suspects under 16 years of age where aggravating factors are present, but otherwise to divert them from prosecution. This policy is being jointly reviewed by the NPCC and CPS.
Work is currently being undertaken by the NPCC to develop guidance for schools about knife crime. Further details of this will be included in future updates of this document.
Please refer to the main guidance in respect of Youth Cautions.
Investigators and Prosecutors should also be aware that the issues raised in ‘County Lines’ offending can apply to some knife crime- see the County Lines Typology
The issue of bail or remand should be considered pre-charge. If a remand in custody is sought, a completed MG7 should be submitted with the file for authority to charge. This should include all the grounds for making the application. Consideration should be given as to whether it would be appropriate to appeal a decision to grant bail by the Magistrates’ Court, and the reasons for this. Prosecutors should seek authorisation from their Legal Manager, where possible, prior to appealing any decision. The Police should also suggest suitable bail conditions such as curfews; restriction on entering certain areas; association with certain individuals.
The prosecutor should examine the Prosecutor’s Print for offending on bail, failing to surrender to court and breaches of court orders. The prosecutor can address the court about the seriousness of knife crime in general and the facts of the case, but will rely on the Police to ensure that all information relevant to the individual is included in the application – for example the defendant’s home circumstances, their associates, incidents in the community to which they propose to return. The prosecutor must be in a position to communicate to the court any reason why there are substantial grounds to believe that if released on bail the defendant would commit further offences, as well as any other objections to bail.
Prosecutors should consider which witnesses are necessary to present a case, especially where the defence indicates that all the evidence is agreed. Normally photographic exhibits of knives are suitable for magistrates’ court hearings but where the weapon is more unusual or it is considered the photograph does not reflect its true nature, or in the Crown Court, arrangements should be made to have the exhibit brought to court. Prosecutors should be robust in establishing the defence issues in a case prior to the trial, however if evidence or accounts are presented by the defence on the day of trial, the prosecutor should seek time to consider them and if necessary for them to be investigated.
The Youth Justice and Criminal Evidence Act 1999 (YJCEA) introduced a range of special measures that can be used to facilitate the gathering and giving of evidence by vulnerable and intimidated witnesses. Special measures are designed to help vulnerable and intimidated witnesses to give their best evidence in court and help to relieve some
of the stress associated with giving evidence. Child witnesses under the age of 18 will automatically be eligible for
Special measures by virtue of section 16 of the YJCEA. Special measures include: screens, live link, evidence given in private, removal of wigs and gowns by barristers and judge in the Crown Court, video recorded evidence, use of an intermediary and aids to communication.
Witnesses (including police officers) to offences under the 1953 legislation and s139, s139A and s139AA of the 1988 legislation are eligible for special measures by virtue of section 17(5) and Schedule 1A YJCEA. There is no need to prove the witness is vulnerable or intimidated nor is there a need to demonstrate that the measure is required so that the witness gives their best evidence.
Police officers should ensure that any requirement for special measures is noted on the reverse of the witness’s MG11 and any specific grounds are explained in the body of the statement. A completed MG2 should be included with the file to the CPS, setting out which special measures are sought by a victim or witness and the grounds.
In truly exceptional circumstances an application can be made for a Witness Anonymity Order. The police should discuss such an application with the prosecutor at the earliest stage. Any application must comply with the Director’s Guidance on Witness Anonymity Orders.
The most likely gateway for admitting hearsay evidence in cases involving knives is if the witness will not give evidence due to fear. It does not matter whether the fear was brought about by or on behalf of the defendant and fear is given a wide definition which includes fear of the death or injury of another person or of financial loss. This includes fear as a consequence of the offence the subject of the trial.
Leave of the court will be required for a witness to not give oral evidence through fear. The court will conduct appropriate enquires to determine whether there are objective grounds for the fear and whether these grounds are supported by evidence; allowing the admission of a witness statement in lieu of live evidence at trial must be a measure of last resort so the court will need to be satisfied that all available alternatives such as special measures would be inappropriate or impracticable. The judge must be satisfied beyond reasonable doubt that there is a causative link between the fear and the failure to give evidence. For this reason, it is important not to give indications or assurances that a witness that they will not have to give oral evidence. More in depth guidance on hearsay can be found on the CPS website.
Guidance on Victim Personal Statements can be found here. Guidance on Community Impact Statements can be found here. Every police force will seek to produce a Knife Crime Impact Statement to assist the court in understanding the effects of knife crime in their force area.
As set out in the main guidance, prosecutors should be aware of the mandatory minimum sentences apply on conviction of certain knife related offences in defined circumstances. It is the prosecutor’s duty to ensure the court is aware if these provisions apply in relation to the offences under consideration as part of the sentencing process.
Prosecutors should seek forfeiture of any knives. For offences contrary to s1 of the 1953 legislation, section 1(2) enables forfeiture and disposal of the weapon concerned. There is no similar power in relation to offences contrary to the 1988 legislation. Provisions relating to Deprivation Orders are now contained in Chapter 4 of Part 7 of the Sentencing Act 2020 (sections 152-161). These allow the court to make an order depriving the offender of property used for purposes of crime or intended to be used for that purpose.
Guidance on other orders can be found here .
The police can apply for a KCPO on a stand-alone basis or the CPS can apply following conviction.
The orders may be made in relation to any person aged 12 or over (although information from the Youth Offending Team will be required for any person under 18 years old, except in urgent ‘without notice’ cases where an interim order is sought).
For the stand alone application by the Police the court has to be satisfied on the balance of probabilities that the defendant had with them on at least two occasions in the relevant period, a bladed article without good reason or lawful authority, either in public or on school or further educational premises, and the court deems it necessary to make the order to protect the public from the risk of harm involving a bladed article, to protect any particular members of the public in England and Wales (including the defendant) from such risk, or to prevent the defendant from committing an offence involving a bladed article. The relevant period is 2 years before the date the order is made, but can only include events which took place after the section came into force (partial implementation took place on 5 July 2021)
For an order upon conviction, the defendant must have been convicted of a relevant offence committed after the coming into force of the section (partial implementation took place on 5 July 2021), and the court must think that it is necessary to make the order to protect the public in England and Wales from the risk of harm involving a bladed article or to protect any particular members of the public in England and Wales (including the defendant) from such risk, or to prevent the defendant from committing an offence involving a bladed article
The conditions of an order may include both requirements and prohibitions.
A KCPO can last for a minimum duration of 6 months and maximum of 24 months.
Breach of a KCPO is an either way offence under section 29 OWA and carries a maximum term of 2 years imprisonment. Courts may not conditionally discharge a defendant convicted of a breach of KCPO (section 29(4) OWA)
NOTE: KCPOs will initially only be available in London during the pilot which commenced on 5 July 2021.
During any knife crime investigation, police should capture intelligence from the offender on where the knife was obtained. This can be done during the interview and should include whether it was purchased, stolen or obtained by other means. This may highlight other investigative lines regarding the supply of knives.
Intelligence around the knives should also be captured during an investigation: its type, material, brand or any identifying marks. Although this may not form part of the active investigation, the intelligence is invaluable and will allow the police to target enforcement and prevention work more effectively.
Knives can be purchased from a wide range of retailers, either from traditional ‘bricks and mortar’ stores or online. These range from small independent retailers, national chains and bespoke specialist stores.
- Selling Knives and Articles to under 18s – section 141A Criminal Justice Act 1988
- Unlawful Marketing of Knives – section 1 Knives Act1997
- [Delivery of bladed products to residential premises -Section 38 Offensive Weapons Act 2019 ]
- [Delivery of bladed products to persons under 18 – Section 39 Offensive Weapons Act 2019 ]
- Publications Relating to Knives – section 2(1) Knives Act 1997. This offence is aimed at the publishers of advertisements rather than those who are involved in the sale and marketing of knives.
- Selling, hiring or importation of prohibited weapons – section 141 Criminal Justice Act 1988 and Criminal Justice Act 1988 (Offensive Weapons Order) 1988
- Manufacture, sale, hire or importation of certain dangerous weapons, such as flick or gravity knives -
- Exempt trades – Knives Act 1997
- Other defences – Knives Act 1997
- Section 141 defences – the 1988 legislation as [amended by section 35 Offensive Weapons Act 2019 ]
- [Section 38 & 39- the 2019 legislation ]
Many Local Authorities operate their own Responsible Retailer Agreements which can cover the sale of knives. In addition, the Home Office has produced a Voluntary Agreement on the sale of knives which some national retailers have signed up to. A new voluntary agreement on the storage of knives is also under consideration.
Whether a retailer has signed up to either a local or national responsible retailer agreement, and any subsequent action taken as a result e.g. ongoing training, may be useful evidence in proving the presence or absence of due diligence.
In order to test compliance with s141 of the 1988 legislation, ‘under age’ volunteers are often used in controlled conditions to attempt to buy knives or bladed articles from retail outlets. Test purchasing is conducted, either by local authority Trading Standards services, by police, or both. Trading standards have the experience and expertise with other age restricted items (such as alcohol, fireworks and tobacco) to prepare and plan a test purchase exercise and where necessary to investigate any sales made, up to and including any potential prosecutions. Any relevant intelligence relating to a particular store should be shared by both parties according to local information sharing protocols.
When planning a joint operation, consideration must be given to the provisions of the Regulation of Investigatory
Powers Act 2000 particularly with respect to covert surveillance. Trading Standards also need to ensure compliance with the Better Regulation Delivery Office (‘BRDO’) Code of Practice for Age Restricted Products and Services. Any joint operation should identify from the outset which agency will undertake any action arising from a sale of a knife to a young person.
Trading Standards works to its own local Enforcement Policy. Prosecutions are taken by the local authority itself, as a private prosecutor and the case will be heard in the Magistrates’ Court.
Trading Standards teams should have an enforcement policy, which is publicly available such as this. Disposals include: warnings, invitations to business training, simple cautions and prosecutions. Options do not include Fixed Penalty Notices. It should be noted that not all test purchase investigations will lead to a prosecution. The opportunity for ongoing partnership work with the retailer concerned should not be overlooked.
Training is also available to help prevent the underage sale of knives. The Assess-Challenge-Check process should be used, along with Challenge 25. **link to our videos when live**