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Offensive Weapons, Knife Crime Practical Guidance

|Legal Guidance

Introduction

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 had not yet commenced and therefore all references to it are placed in brackets. There will be a further update once the commencement date is known. Knife Crime Prevention Orders (KCPOs) will be introduced on a trial basis in selected boroughs 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.

Purpose

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 Guidance on Offensive Weapons, Knives, Bladed and Pointed Articles, and supports HM Government’s Serious Violence Strategy (April 2018).

Context

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

Legislation

Prevention of Crime Act 1953 (“the 1953 legislation”)

  • Having an offensive weapon in a public place – section 1
  • Threatening with an offensive weapon in public – section 1A

Criminal Justice Act 1988 (“the 1988 legislation”)

  • 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

[Offensive Weapons Act 2019 (“the 2019 legislation”)

  • Threatening with an offensive weapon etc in a private place – Section 52
  • Prohibition on the possession of flick and gravity knives – section 44
  • Delivery of bladed products to residential premises – section 38
  • Delivery of bladed products to persons under 18 – section 39
  • Prohibition on possession of offensive weapons in private – section 46]

Other offences

  • Unauthorised possession of knives and other offensive weapons in prisons – section 78 Serious Crime Act 2015, providing for section 40CA Prisons Act 1952
  • Manufacture or sale etc. of flick knives or gravity knives – section 1 Restriction of Offensive Weapons Act 1959

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 Prosecutors as well as the Attorney General's Guidelines 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.

Elements of the offences

An article which is bladed or sharply pointed

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 pocketknife1. 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.

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 swordstick2, flick-knives3, shurikens4 (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 razor5, a penknife6 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 broken bottle7.
  • 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 knife8, 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 weapon9. 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 injury10. 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 shock11.

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).

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 them12, and relevant considerations to this are 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 it13. A person forgetting about an article does not negate them having it with them.

Public place

This includes any 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 landowner14. Examples of places held to be public places from case law: a field where point-to-point races are held15; a football stadium16; hospital grounds where visitors to the hospital and their friends were permitted to enter17; a public house car park during licensing hours18; a caravan park19; a multi-storey car park20; a ferry lane21 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 street22.

School premises

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

Land used solely for the purposes of — 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.

Private Place

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.

Serious physical harm

Harm that amounts to grievous bodily harm for the purposes of the Offences against the Person Act 1861.

Possible defences

It is a defence for a person to show that they had a good reason or lawful authority for having a knife with them, including but not limited to: for use at work, for religious reasons 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 sufficient23. 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. 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 measure24 is not a good reason. Forgetfulness alone is not a good reason25, but could be in a combination with the circumstances of the acquisition, for example, a parent who buys a knife and 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 enquiry arise from this to establish whether or not the defence is likely to be established.

Adverse inferences

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 facts when 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.

Bad character

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.

Consideration should 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’.

The decision to charge

This is governed by the Code for Crown Prosecutors. 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.

Cautions

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".

Youths

The following is current NPCC and CPS policy is 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.

The current guidance on Youth Cautions can be found here. The Gravity Matrix can be found here.

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.

Applications to remand in custody

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.

Case management

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.

Safeguarding witnesses

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 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.

Hearsay

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 defendant26 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 trial27.

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.

Evidence of impact

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.

Mandatory minimum sentences

Murder Cases

Where the offender took a knife or other weapon to the scene intending to (a) commit any offence, or (b) have it available to use as a weapon, and used that knife or other weapon in committing the murder, the normal starting point is 25 years for the minimum term.

Minimum sentences for Habitual Knife Carriers (HKCs)/ 'second strike' or threatening offences

A minimum custodial sentence of at least six months' imprisonment for an offender aged 18 or over when convicted, and at least a four month detention and training order for 16 and 17 year olds, applies where an offender is convicted of a relevant offence under the 1953 or 1988 legislation, and then is subsequently convicted of a second relevant offence, or where the offender is convicted of an offence contrary to section 1A or 139AA of the 1953 or 1988 legislation.

It is part of the Prosecutor’s duty at sentencing to ensure the court is aware of any statutory provisions relevant to the offender and the offences under consideration.

Forfeiture

Prosecutors should seek forfeiture of any knives. For offences contrary to 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. Section 143(1) Powers of Criminal Courts (Sentencing) Act 2000 allows 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.

Knife Crime Prevention Orders (KCPO)

Part 2 Offensive Weapons Act 2019

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 excuse either in public or on 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.

For an order upon conviction, the defendant must have been convicted of a relevant offence, 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. Full guidance can be found (link to follow when Home Office guidance goes live).

Note: KCPOs will initially only be available in the pilot areas.

Intelligence

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.

Sale of Knives

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.

Offences

Defences

Power of Entry

See section 142 Criminal Justice Act 1988.

Responsible Retailer Agreements / HO voluntary agreement

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.

Underage test purchasing of knives

In order to test compliance with section 141 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. 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**

  1. Sharma v DPP [2018] EWHC 3330 
  2. Davis v Alexander (1970) 54 Cr App R 398 
  3. R v Simpson (Calvin) [1983] 1 WLR 1494 
  4. McGlennan v Clark [1993] SLT 1069 (Scottish case) 
  5. R v Petrie (Dudley Leighton) [1961] 1 WLR 358 
  6. R v Humphreys [1977] Crim LR 225 CA 
  7. Bryan v Mott (1976) 62 Cr App R 71 
  8. Patterson v Block (1984) 81 LS Gaz 2458 DC 
  9. R v Weatherby [2016] EWCA Crim 2074 
  10. Patterson v Block [1984] 1 WLUK 489 
  11. R v Edmonds [1963] 2 QB 142, 47 Cr App R 144, CCA 
  12. R v Cugullere (Sidney) [1961] 1 WLR 858
  13. R v McCalla (Clevous Errol) (1988) 87 Cr App R 372 
  14. Sandy v Martin [1974] Crim LR 258 
  15. R v Collinson (Alfred Charles) (1932) 23 Cr App R 49 
  16. Cawley v Frost [1976] 1 WLR 1207 
  17. R v Powell [1963] Crim LR 511; 113 LJ 643 
  18. Elkins v Cartlidge [1947] 1 All ER 829 
  19. DPP v Vivier [1991] RTR 205 
  20. Bowman v DPP [1990] Crim LR 600 
  21. DPP v Coulman [1993] RTR 230
  22. Knox v Anderton (1983) 76 Cr App R 156 
  23. Godwin v DPP (1993) 96 Cr App R 244 
  24. Evans v Hughes [1972] 1 WLR 1452
  25. DPP v Gregson [1992] 7 WLUK 286
  26. R v Fairfax (Kenneth) (No.1) [1995] Crim LR 949
  27. R v Acton Justice Ex p McMullen (1991) 92 Cr App R 98
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