Offensive Weapons, Knives, Bladed and Pointed Articles

: revised and acid and other corrosive substance attacks text added|Legal Guidance, Violent crime

Introduction

Carrying an offensive weapon, or a knife, or a bladed / pointed article is a serious offence. The unlawful provision and possession of weapons encourages violence and can cause serious injury and death in addition to facilitating other criminal offences.

Acid or other corrosive substance attacks

There is a strong public interest in prosecuting offences of acid or corrosive substance attacks.

Acid and other corrosive substances (for example, bleach or ammonia) may be used as weapons to attack victims. The substances may be used in connection with hate crime, so-called honour based violence, domestic abuse, and by gangs in retribution.

Acid and corrosive substance attacks have a devastating effect on victims, and when thrown on to the victim's body – usually their face – cause the skin and flesh to melt, sometimes exposing and dissolving the bones below. The long-term consequences of acid or corrosive substance attacks may include blindness, permanent scarring of the face and body, and social and psychological difficulties.

Acid and other corrosive substances are becoming a preferred weapon of offenders carrying out criminal activity, due to it being easy to obtain, cheap and difficult to trace back to the perpetrator. (See also the Offences against the Person Charging Standard).

None of the legislation is this guidance refers to the actual word 'acid', so reference in this guidance to 'acid' includes any corrosive substance.

Acid and other corrosive substance attacks: public interest factors

Where the evidence discloses that the defendant has used acid or a corrosive substance to cause injury to a person, there will be a number of compelling public interest factors in favour of prosecution. These include, but are not limited to:

  • the physical and psychiatric effects of the attack on the victim;
  • a conviction is likely to result in a significant sentence;
  • the offence is widespread in the area where it was committed;
  • evidence that the offence was premeditated;
  • prosecution would have a significant positive impact on maintaining community confidence;
  • a culture of carrying weapons encourages violence which may lead to more serious criminal behaviour.

Depending on the facts, there may also be other important public interest factors supporting prosecution, for example the offence was committed in a school, or the defendant was motivated by hostility towards another individual or group. (See also the Offences against the Person Charging Standard).

The Code for Crown Prosecutors makes clear that a prosecution will usually take place unless there are public interest factors tending against prosecution which outweigh those tending in favour (paragraph 4.8).

Knives and other offensive weapons

Knife and offensive weapon offending has a devastating effect on individuals, families and communities. Not all knife and offensive weapon offending is gang related or committed by young people.

Knives may be treated as offensive weapons or dealt with under provisions specific to the carrying of knives.

Knives and other offensive weapons: public interest factors

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)).

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;
  • 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, the offence was committed in a school, prison, hospital or public house, or the defendant was motivated by hostility towards another individual or group.

The Code for Crown Prosecutors makes clear that a prosecution will usually take place unless there are public interest factors tending against prosecution which outweigh those tending in favour (paragraph 4.8).

Youths

It has been agreed between NPCC 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:

  • The 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 a charge.
  • The first arrest of a youth 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.
  • The 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 a Youth Caution or a Youth Conditional Caution. This must be supported by an appropriate YOT intervention, preferably with elements focussed on anti-knife crime education. For a youth under 16 years, an out of court disposal which is not a youth caution or a youth conditional caution should not be used.
  • 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 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 month Detention and Training Order and therefore should not be dealt with using an out of court disposal.
  • Section 28 of and Schedule 5 to the Criminal Justice and Courts Act 2015 create a minimum custodial sentence for those aged 16 and over convicted of a second or subsequent offence of possession of a knife or offensive weapon, contrary to section 1 of the Prevention of Crime Act 1953 or sections 139 and 139A of the Criminal Justice Act 1988. The minimum custodial sentence for 16 and 17 year olds is at least a four month detention and training order.

See Sentencing - 'second strike'.

Selecting the Charge

Paragraph 6.1 of the Code for Crown Prosecutors states that charges should be selected which:

  • reflect the seriousness 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.

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 the guidance about Public Order Offences incorporating the Charging Standard.

Acid and other corrosive substance attacks: selecting the charge

The most appropriate charges in connection with acid and other corrosive substance attacks are likely to be drawn from the following:

Either way offences:

  • Possession of an offensive weapon (section 1 Prevention of Crime Act 1953); – 4 years maximum imprisonment;
  • Possession of an offensive weapon on school premises (section 139A(2) Criminal Justice Act 1988); - 4 years maximum imprisonment;
  • Threatening with an offensive weapon in a public place (section 1A Prevention of Crime Act 1953); – 4 years maximum imprisonment;
  • Threatening with an offensive weapon on school premises or in a public place (section 139AA Criminal Justice Act 1988); – 4 years maximum imprisonment

Indictable only offences:

  • Throwing (or applying) corrosive fluid on a person with intent to burn, maim, disfigure or disable or to do some grievous bodily harm (section 29 Offences against the Person Act 1861); – maximum sentence: life; and
  • Causing grievous bodily harm with intent (section 18 Offences against the Person Act 1861); – maximum sentence: life.

Prosecutors are also referred to the Offences against the Person Charging Standard for information about sections 18 and 29 of the Offences against the Person Act 1861.

Knife and offensive weapon offending: selecting the charge

The most appropriate charges in connection with knife and offensive weapon offending are likely to be drawn from the following:

Summary Offences:

  • Section 1 Restriction of Offensive Weapons Act 1959 (manufacture, sale etc. of flick knives and gravity knives)
  • Section 1 Crossbows Act 1987 (sale/let crossbows to a person under 18)
  • Section 2 Crossbows Act 1987 (purchase/hire of crossbow by a person under 18)
  • Section 3 Crossbows Act 1987 (unsupervised possession of a crossbow by a person under 18)
  • Section 141 Criminal Justice Act 1988 (manufacture, sale etc. of offensive weapons)
  • Section 141A Criminal Justice Act 1988 (sale of knives, axes, swords etc. to a person under 18)

Either Way Offences:

  • Section 1 Prevention of Crime Act 1953 (Offensive Weapons)
  • Section 1A Prevention of Crime Act 1953 (Threatening with an offensive weapon in public)
  • Section 139 Criminal Justice Act 1988 (Bladed and Pointed Articles)
  • Section 139A Criminal Justice Act 1988 (Offensive Weapons, Bladed and Pointed Articles on school premises)
  • Section 139AA Criminal Justice Act 1988 (Threatening with an article with a blade or point or offensive weapon)
  • Section 28 Violent Crime Reduction Act 2006 (Using another person to mind a dangerous weapon)
  • Section 1 Knives Act 1997 (Unlawful marketing of knives etc.)

Selecting the charge - good practice

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. Additionally, if convicted of both offences, the court may impose consecutive sentences.

Sale of knives and offensive weapons to persons under 18 (section 141A Criminal Justice Act 1988)

Section 141A of the Criminal Justice Act 1988 makes it an offence to sell or let or hire to a person under 18 years:

  • any knife, knife blade or razor blade
  • any axe
  • any sword
  • any other article which has a blade or which is sharply pointed and which is made or adapted for use for causing injury to the person

This section does not apply to:

  • any weapon to which section 141 of the Criminal Justice Act 1988 applies (any weapon subject to the Firearms Act 1968 and crossbows).
  • any article described in section 1 of the Restriction of Offensive Weapons Act 1959 ("flick knives" and "gravity knives").
  • a folding pocket-knife if the cutting edge of its blade does not exceed 7.62 cm (3 inches).
  • razor blades permanently enclosed in a cartridge or housing where less than 2 mm of any blade is exposed beyond the plane which intersects the highest point of the surfaces preceding and following such blades.

It is a defence to show that the accused believed the purchaser or hirer to be over 18 years old and he either took reasonable steps to establish the purchaser or hirer's age or no reasonable person could have suspected from the purchaser or hirer's appearance that he was under 18 years of age.

The maximum penalty for this offence is six months imprisonment, or a fine, or both.

Possession of an Offensive Weapon (section 1 Prevention of Crime Act 1953)

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. The term "offensive weapon" is defined as: "any article made or adapted for use to cause 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.

It is important to be aware of the principle set out in R v Jura [1954] 1 QB 503, 38 Cr. App. R. 53, CCA: where a person uses an article offensively in a public place, the offensive use of the article is not conclusive of the question whether he had it with him as an offensive weapon within section 1(1) of the Prevention of Crime Act 1953.

Having an article innocently will be converted into having the article guiltily if an intent to use the article offensively is formed before the actual occasion to use violence has arisen. This is known as the principle of "instantaneous arming".

In Williamson [1978] 67 Cr. App. R. 35, LJ Lane set out that section 1(4) PCA provides three categories of weapons. The first category is the weapon which is made for causing injury to the person – "offensive per se". The second type of weapon is one not made for that purpose but adapted for it, such as a potato with a razor blade inserted into it. The third type of weapons is one neither made nor adapted but is one which is intended by the person having it with him for the purpose of causing personal injury to someone. Whether an article is an offensive weapon is a question of fact for the jury.

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.

Prosecutors should note that the carrying of acid or other corrosive substance is likely to fall into the final category of weapon identified by LJ Lane, where it can be proved that it is intended to cause injury. Intent to cause injury can be inferred from the context of the surrounding circumstances, and in particular prosecutors should consider:

  • whether the acid has been transferred into a container that it is easier to carry and / or easier to use as a weapon – for instance is it now easier to squirt or throw;
  • if the acid is still in its original container, regard should be paid to the circumstances in which it is carried – for instance is it with other household shopping, or in a bag with a balaclava late at night.

Any background information that the police can obtain may also be valuable in this regard, for instance any relevant texts or social media evidence relating to threats of the carrying of acid. Any explanation provided by the suspect as to intent of lawful authority / reasonable excuse should be carefully scrutinised. It may also be worth considering what led the police to find the acid on the suspect, and whether there may be other witnesses who saw or heard anything that from which intent to cause injury could be inferred.

Section 1A Prevention of Crime Act 1953

Section 1A of the PCA 1953 makes it an offence to unlawfully and intentionally threaten another person with an offensive weapon in a public place, in such a way that there is an immediate risk of serious physical harm to that other person.

The prosecution must prove that the defendant had a relevant article in a public place, unlawfully and intentionally threatened another person with it, and did so in a way that there was an immediate risk of serious physical harm to that person.

For the purpose of this section, serious physical harm is defined as grievous bodily harm. Both "public place" and "offensive weapon" have the same meaning as in section 1 above.

Defence: section 1 PCA 1953

The defendant is entitled to be acquitted on an offence contrary to section 1 PCA 1953, if he shows on the balance of probabilities that he had "lawful authority or reasonable excuse" for having the weapon. Where details of a defence are given in interview or in a defence statement, the prosecutor should consider whether evidence is available to rebut the defence and should liaise with the police if additional enquiries or evidence are necessary.

This defence is not available to a defendant charged under section 1A PCA 1953.

Possession of Blades / Points

Section 139 of the Criminal Justice Act (CJA) 1988 prohibits having an article with blade or point, in a public place (including a folding pocket knife if the cutting edge of its blade exceeds 7.62cm (3 inches)).

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, 139A and 139AA of the CJA 1988:

  • a butterknife, with no cutting edge and no point is a bladed article; (Booker v DPP 169 J.P. 368, DC);
  • a screwdriver is not a bladed article; (R v Davis [1998] Crim L.R. 564 CA);
  • a "lock knife" does not come into the category of "folding pocket knife" because it is not immediately foldable at all times; (R v Deegan [1998] 2 Cr. App. R. 121 CA).

Section 139AA of the CJA 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.

The prosecution must prove that the defendant had a relevant article in a public place or on school premises, unlawfully and intentionally threatened another person with it, and did so in a way that there was an immediate risk of serious physical harm to that other person.

For the purpose of section 139AA CJA 1988, 'serious physical harm' is defined as grievous 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 CJA 1988, it matters not whether a person was initially in lawful possession.

Defence: section 139 CJA 1988

The defendant charged under section 139 or 139A CJA 1988 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.

The defendant does not discharge the burden of showing "good reason" just by providing an explanation that is not contradicted by the prosecution evidence. Where details of a defence are given in interview or in a defence statement, the prosecutor 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.

This defence is not available to a defendant charged under section 139AA CJA 1988.

Useful Case law on acid attacks / offensive weapons

Patterson v Block [1984] 81 LSG 2458 – carrying a weapon for defence can still amount to intent to cause injury

The defendant was tried for possessing an offensive weapon (s1(1) PCA 1953). The weapon, a lock knife, was not alleged by the prosecution to be offensive per se. To prove the necessary intent to injure a person the prosecution were only able to establish that the defendant carried the knife to defend himself. The justices felt inclined to infer from this that if the occasion arose for the defendant to use the knife to defend himself he would use it to cause injury to a person and accordingly convicted him. On appeal, Kerr LJ said that it was common ground that this was not a weapon made or adapted for use for causing injury to the person and that consequently the defendant could only be convicted if the justices were satisfied that he carried it intending to use it to injure a person. The question was whether that intention could properly be inferred where the defendant carried the weapon to defend himself. The ordinary use of the knife was such that even if it was used as a defensive weapon injury might be inflicted upon a person and accordingly the justices were entitled to draw the inference they did that the defendant had the knife intending to cause injury.

R v Hopkins [1996] 1 Cr. App. R.(S.) 18 – bottle of acid for protection is so serious only custodial sentence appropriate

The defendant, a minicab driver, had a lemon juice bottle containing a solution of 36 per cent hydrochloric acid, which he admitted carrying for protection. Hopkins pleaded guilty to having an offensive weapon (section 1(1) PCA 1953) and was sentenced to 6 months imprisonment. On appeal, it was held the offence was so serious that only a custodial sentence could be justified. The bottle had not been used and the appellant had some genuine ground for fear as to his personal safety. A sentence of three months was substituted.

Powers to search for blades / points

The police power to search school premises for bladed and pointed articles and offensive weapons was amended by section 48 Violent Crime Reduction Act 2006 and allows the police to exercise this power if there are reasonable grounds for suspecting that an offence under section 139A CJA 1988 (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.

Gangs

Prosecutors should be alert to the possibility of gang offending in a wide range of cases, including those involving offensive weapons, knives, bladed or pointed articles. Where appropriate, prosecutors should consider applying for a Criminal Behaviour Order to prevent such offending.

Offences by prisoners

Prison governors have been informed that incidents involving the possession of unauthorised weapons and other offensive weapons (knives, home-made weapons, workshop instruments if there is evidence to suggest that the weapon was intended for use in the commission of a further serious criminal offence) should be referred to the police.

Section 78 of the Serious Crime Act (SCA) 2015 makes it an offence to possess any article which has a blade or is sharply pointed, or other offensive weapon, in prison without authorisation. This includes makeshift weapons manufactured by prisoners from everyday items. The offence applies to all persons in prison including prisoners, staff and visitors.

Section 78 SCA 2015 is an either-way offence and on conviction on indictment it carries a four year maximum prison sentence or a fine or both. On summary conviction, it carries a maximum six month prison sentence or a fine or both.

See also guidance about Offences by Prisoners, and 'The appropriate handling of crimes in prison' protocol between NOMS, ACPO and CPS, dated 27 February 2015.

Court Security

Section 52 of the Courts Act 2003 provides court security officers acting in the execution of their duty with the power to search:

  1. any person who is in, or seeking to enter, a court building, and
  2. 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:

  1. jeopardise the maintenance of order in the court building (or a part of it)
  2. put the safety of any person in the court building at risk, or
  3. 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.

Procedure - 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.

The Magistrates' Court Sentencing Guidelines (for section 1 Prevention of Crime Act 1953 and section 139 Criminal Justice Act 1988, and the additional note published following R v Povey and others [2008] EWCA Crim 1261) state that the Crown Court is the appropriate venue when the weapon is used in dangerous circumstances to threaten or cause fear (or where the weapon is a knife and is possessed in dangerous circumstances, even if it is not used to threaten). Povey states that the Sentencing Guidance should be applied at the most severe end of the appropriate range of sentences (see also Sentencing: Case law).

Prosecutors should be mindful of the allocation guidelines and, bearing in mind its power to commit for sentence after a trial, may make representations that the magistrates’ court retains jurisdiction notwithstanding that the likely sentence might exceed its powers.

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. (See Sentencing below.)

Prosecutors should make reference to applicable minimum sentences when making submissions on allocation and venue.

Special measures

The Youth Justice and Criminal Evidence Act 1999 ('YJCEA') introduced a range of measures that can be used to facilitate the gathering and giving of evidence by vulnerable and intimidated witnesses. The measures are collectively known as 'Special Measures' and are subject to the discretion of the court.

Intimidated witnesses are defined by section 17 YJCEA as those suffering from fear or distress in relation to testifying in the case. Witnesses to certain offences involving knives are defined as automatically falling into this category unless they wish to opt out.

Prosecutors are reminded of the importance of considering applying for special measures applications, in appropriate cases, where the victim has experienced an acid or other corrosive substance attack.

See guidance about Special Measures.

Sentencing

Prosecutors should assist the court by drawing the Sentencing Guidelines 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 [2008] EWCA Crim 1261 Note: The recommendation in R v Povey and others [2008] EWCA Crim 1261 and others that the guidance should normally be applied at the most severe end of the appropriate range of sentences.

The Sentencing Guidelines Council's guidance is of application across all criminal courts. In R v Gomes Monteiro and others [2014] EWCA Crim 747, the Court of Appeal stated that given the prevalence of knife crime amongst young persons, the Youth Court must keep a very sharp focus, through the use of more severe sentences where appropriate, on preventing further offending by anyone carrying a knife in public and on securing a reduction in knife crime generally.

The Sentencing Guidelines Council has included an additional note in the Magistrates' Court Sentencing Guidelines for the court to consider when sentencing offenders who have been found either in possession of a bladed article or an offensive weapon, which 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 R v Poulton; R v Celaire [2003] 1 Cr. App. R. (S). In relation to a knife, a circumstance is likely to be dangerous if there is a real possibility that it could be used.

The Magistrates’ Court Sentencing Guidelines provides that, 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:

Offence seriousness (culpability and harm) A.

Identify the appropriate starting point.

Starting points based on first time offender pleading not guilty.

Examples of nature of activity

Starting point

Range

Weapon not used to threaten or cause fear.

High level community order where the offensive weapon is not a knife.

Close to 12 weeks' custody where the weapon is a knife.

Band C fine to 12 weeks custody

Weapon not used to threaten or cause fear but offence committed in dangerous circumstances.

6 weeks' custody where the weapon is not a knife.

A custodial sentence in excess of 6 months' where the weapon is a knife.

High level community order to Crown Court

Weapon used to threaten or cause fear; and offence committed in dangerous circumstances.

A custodial sentence in excess of 6 months' (Crown Court)

Crown Court

 

Offence Seriousness (culpability and harm) B.

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

  1. Particularly dangerous weapon
  2. Specifically planned use of weapon to commit violence, threaten violence or intimidate
  3. Offence motivated by hostility towards minority individual or group
  4. Offender under influence of drink or drugs
  5. Offender operating in group or gang.

Factors indicating greater degree of harm

  1. Offence committed at school, hospital or other place where vulnerable persons may be present
  2. Offence committed on premises where people carrying our public services
  3. Offence committed on or outside licensed premises
  4. Offence committed on public transport
  5. Offence committed at large public gathering, especially where there may be risk of disorder

Factors indicating lower culpability

  1. Weapon carried only on temporary basis
  2. Original possession legitimate e.g. in the course of trade or business

 

Sentencing: mandatory life sentences in 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. This increased minimum term does not apply in relation to a life sentence imposed for an offence of murder committed before 2 March 2010.

In Attorney General's Reference (no 36 of 2015) [2015] EWCA Crim 1174, the Court of Appeal adopted a stern approach to sentencing knife crime. In this case, which concerned an offence of manslaughter, the principal aggravating feature was that the offender had taken the knife to the scene.

Sentencing: minimum sentences for those convicted of second or subsequent offence ('second strike')

Minimum sentences for 'second strike' offences of possession of knives or offensive weapons came into force on 17 July 2015.

Section 28 of and Schedule 5 to the Criminal Justice and Courts Act 1988 create a minimum custodial sentence for those aged 16 and over convicted of a second or subsequent offence of possession of a knife or offensive weapon (section 1 of the Prevention of Crime Act 1953) or of an article with a blade or sharp point (section 139 Criminal Justice Act 1988), including possession of such on school premises (section139A Criminal Justice Act 1988), provided that:

  • the offence was committed on or after 17 July 2015; and
  • the offender had attained the age of 16 years at the date the offence was committed (if it is an on-going offence the latest date applies); and
  • on the date of commission, the offender must have at least one relevant previous conviction (there are no commission date or offender age limitations for the first conviction, and may be any time before the commencement date of the Act, and at any age).

Note that for a minimum sentence to apply to a 'second strike' possession offence, the order must be conviction (guilty plea or finding of guilt) for the first relevant offence, and commission of the second offence after 17 July 2015. Minimum sentences will not apply if the second offence was committed whilst the offender was on bail awaiting trial for the first offence. Relevant previous convictions include: simple possession offences; offences of threatening with an offensive weapon or bladed / pointed article (section 1A Prevention of Crime Act); the threatening offences (section 139AA Criminal Justice Act); offences committed in Scotland, Northern Ireland or an EU Member State which would have constituted the commission of a relevant offence in this jurisdiction; and certain Armed Forces offences.

The 'second-strike' sentences do not apply if the second offence is a threatening offence, as 'first-strike' convictions for section 1A PCA 1953 and section 139A CJA 1988 attract the same minimum sentences as the provisions under section 28 Criminal Justice and Courts Act 1988.

The minimum custodial sentence is 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.

It is important to note that the 'minimum sentences' are starting points, and aggravating and mitigating factors should be applied subsequently (paragraph 11 MoJ Circular 2015 / 03).

In connection with young people, it does not matter what age the offender was at the commission of the first relevant offence but they must be 16 years at the commission of the second offence. The offender must be at least 16 years if conviction for a minimum sentence is to be imposed.

The court must consider the general duty to have regard to the welfare of any child or young person brought before it when deciding whether to impose a minimum sentence, (section 44 Children and Young Persons Act 1933).

The judge must impose the minimum sentence unless the court is of the opinion that there are particular circumstances which relate to the offence, the previous offence(s), or the offender which would make it unjust in all circumstances.

Prosecutors should be prepared to make submissions on whether there are particular circumstances which would make the imposition of the minimum sentence unjust. Any court decision on whether the minimum term should be imposed must be clearly endorsed on the CPS record.

Prosecutors should note that credit of up to 20% can be given for a guilty plea, section 144(3) Criminal Justice Act 2003 provides that the court may not impose a sentence which would be less than 80% of the 6 months minimum sentence specified.

Sentencing: section 1A Prevention of Crime Act 1953

Unlike an offence contrary to section 1 PCA 1953, where a person is convicted of an offence contrary to section 1A PCA 1953 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 possession in the alternative.

Sentencing: section 139 CJA 1988

Where a person is convicted of an offence contrary to section 139AA CJA 1988, 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.

The minimum sentence for section 139AA CJA 1988 only applies to offenders over the age of 16 at the time of conviction. Anyone who is under the age of 16 would not be subject to that minimum. A youth under the age of 16 on conviction would fall into the standard sentencing practices of the youth court. The primary sentencing factor being the welfare of the child and consideration of the antecedent history. A Youth Rehabilitation Order is therefore a sentence that can be passed if under 16 at the date of conviction.

In addition, if a person is found not guilty (whether on indictment or not) of an offence contrary to section 139AA CJA 1988, but it is proved that they committed an offence contrary to section 139 or 139A CJA 1988 they can be convicted of the basic offence in the alternative.

Sentencing: acid or corrosive substance attacks

The custody threshold will almost certainly be passed where an adult a defendant is convicted of possession acid as an offensive weapon, in circumstances where it could be readily thrown or squirted.

Prosecutors are referred to the Sentencing Guidelines Council's Possession of bladed article / offensive weapon, contained within the Magistrates’ Court Sentencing Guidelines. A guideline for offensive weapons is yet to be published by the Sentencing Council following a consultation that closed in January 2017.

The consultation provides an example of the defendant having a spray bottle containing sulphuric acid while outside of the victim's house, where he said 'it was for her, to take away that pretty smile from her face'. This offence falls within the category of 'highly dangerous weapon', and is identified to be 'high culpability, high harm'. The consultation identifies this as an A1 offence with a starting point of 1 year 6 months within a range of 1 year – 2 years 6 months. The offence is 'high culpability' as it was committed using a highly dangerous weapon.

The consultation guideline identifies offences involving a prolonged incident, serious alarm / distress, committed at a school or other place where vulnerable people may be present, committed in prison or other premises where there may be a risk of serious disorder as being captured by 'Harm category 1'. The starting point is 2 years imprisonment, and the category range is 1 year 6 months – 3 years' imprisonment.

Sentencing issues: blades / points

There are no sentencing guidelines but some of the observations for offensive weapons (below) may be helpful.

In R v Williams [2007] 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, there were no aggravating factors (such as possession of a weapon with no legitimate purpose) and much mitigation.

Sentencing issues: offensive weapons

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.

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
  • the offence was committed in circumstances involving any of the aggravating factors set out below.

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, see section 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.

Sentencing issues: young offenders

It will almost always be appropriate, in the case of young offenders, to obtain a pre-sentence report before proceeding to sentence.

Sentencing: Case law

It may be helpful for the court to consider the questions posed by the Court of Appeal in the case of R v Avis [1998] 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 [2003] 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 and others [2008] EWCA Crim 1261, Sir Igor Judge, delivering the decision of the Court of Appeal in four appeals against sentence for offences of offensive weapons and bladed articles, 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; R v Celaire [2003] 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.)

Victim Personal Statements

The police are required to ask for a Victim Personal Statement in all cases involving an acid or corrosive substances attack.

Community Impact Statements

Community Impact Statements (CIS) can be prepared for a wide variety of crimes where it has been identified that a crime or type of crime has had an impact on the community. The police are particularly encouraged to prepare a CIS in all cases involving an acid or corrosive substances attack. (See guidance about Community Impact Statements).

Ancillary Orders

Prosecutors should seek forfeiture of any knives and weapons.

Section 1(2) Prevention of Crime Act 1953 enables forfeiture and disposal of any weapon in respect of which an offence under the Act was committed. There is no similar power in relation to offences committed under sections 139 and 139A Criminal Justice Act 1988 (possessing bladed or pointed article in a public place). 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. There is a power of forfeiture/disposal in section 6 Knives Act 1997 in relation to unlawfully marketed knives.

In appropriate cases, prosecutors should consider applying for a Criminal Behaviour Order (CBO). A CBO 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 the offender. An example of a suitable CBO prohibition is: 'the defendant must not carry any knife or bladed article in any public place in XXX'. (See the guidance about Criminal Behaviour Order).

Further reading