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Offensive Weapons, Knives, Bladed and Pointed Articles

Updated: 17 August 2021|Legal Guidance, Violent crime

THIS GUIDANCE CONTAINS REFERENCES TO THE OFFENSIVE WEAPONS ACT 2019; THIS ACT IS NOT YET IN FORCE IN ITS ENTIRETY – ONLY LIMITED SECTIONS ARE OPERATIONAL. WHERE THE SECTION/PROVISION HAS NOT BEEN BROUGHT INTO FORCE THE TEXT IN THIS GUIDANCE AND THE TABLE OF OFFENCES WILL BE IN SQUARE BRACKETS.

Introduction

Legislation provides offences to respond to the sale, possession and use of weapons to tackle serious crime. Knives, blades and corrosive substances may be treated as offensive weapons or dealt with under specific provisions.

The Offensive Weapons Act 2019 (OWA) introduced new offences such as [possession of a corrosive substance in a public place, threatening with a blade, offensive weapon or corrosive substance in a private place,] possession of certain prohibited knives in a private place  and amended the definitions and defences to certain existing offences. The Act also introduced a range of summary only offences relating to the sale and delivery of blades and corrosive substances to persons under 18 years that are likely to be prosecuted by local authorities.

The measures in the OWA are one aspect of wider action the Government is taking to address the increase in serious violence. The Serious Violence Strategy, published on 9 April 2018, sets out a programme of commitments focusing on tackling county lines and misuse of drugs, early intervention and prevention, supporting communities and local partnerships, and an effective law enforcement and criminal justice response.

The NPCC and CPS have jointly produced a Practical Guidance document that sets out the shared approach.

“Carrying a knife or an offensive weapon without reasonable excuse is a crime which is being committed far too often by far too many people. 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. That is because even if concealed, even if carried only for bravado, or from some misguided sense that its use in possible self-defence might arise, it takes but a moment of irritation, drunkenness, anger, perceived insult or something utterly trivial, like a look, for the weapon to be produced.” -  Court of Appeal in R v Povey and Others [2008] EWCA Crim 1261

This guidance shows the range of legislative options for prosecution as well as best practice and sentencing issues.

Legislative Framework

The offences are mainly split across three pieces of legislation:

There is a table of offences attached to this guidance which sets out the legislation, elements and defences.

Possession offences for Offensive Weapons, Knives, Blades [and Corrosive Substances]

Prosecutors should note that where an offensive weapon, knife, blade or corrosive substance is alleged to have been used  in the commission of another criminal offence (see guidance on Offences against the Person and guidance on Theft Act Offences), its possession should be reflected wherever possible in a separate charge.

Possession of an Offensive Weapon in a Public Place: section 1 PCA

(Either way, maximum term of 4 years imprisonment on indictment)

Section 1(4) defines an offensive weapon as “any article made or adapted for use for causing injury to the person or intended by the person having it with him for such use by him or by some other person”. In the case of R v Simpson(C), 78 CAR 115 the court considered this definition and identified three categories of offensive weapon.

  • Offensive per se i.e. those items made for the use of causing injury to the person. Examples are a truncheon, a rice flail, a butterfly knife.
  • Adapted for use. The example given in the case of Simpson was of a bottle deliberately broken.
  • Intended by the person having it with him for use for causing injury to the person. This definition includes defensively as well as offensively.

Possession of an article with blade or point in a public place: section 139 CJA

(Either way, maximum term of 4 years imprisonment on indictment)

This section applies to any article which has a blade or is sharply pointed except a folding pocketknife, unless the blade of the folding pocketknife exceeds 3 inches (7.62cm).  

[Possession of a corrosive substance in a public place: section 6 OWA

(Either way, maximum term of 4 years imprisonment on indictment)

“Corrosive substance” means a substance which is capable of burning human skin by corrosion.]

The following are the elements that the prosecution must prove:

  • “Has with them” means ‘knowingly has with them in any public place’ and it is therefore for the prosecution to prove this knowledge beyond reasonable doubt. The accused must have acquired the weapon knowingly (e.g. it was not slipped into his pocket unawares) Regina v Cugullere [1961] 1 W.L.R. 858 Forgetting about having the item does not mean that a person no longer has the item with them v Clevous Errol McCalla (1988) 87 Cr. App. R. 372 . Until they or another does something to rid themselves of it a person who has forgotten that they have an offensive weapon still has it with them within the meaning of the section.
  • “Public place” includes any place to which at the material time the public have or are permitted access, whether on payment or otherwise.
  • “Lawful authority or reasonable excuse” Lawful authority would include carrying an offensive weapon as a matter of duty, e.g. a police officer carrying a baton. Reasonable excuse can include self-defence where the threat perceived is immediate or imminent as opposed to general or enduring. Section 139(5) CJA provides defences of good reason or lawful authority. It further provides specific defences of - having the article with them for use at work; for religious reasons; or as part of any national costume. If the prosecution has established that an offensive weapon or bladed article was carried in a public place, then the onus shifts to the defendant to prove that lawful authority, reasonable excuse or good reason existed.  There is no significant difference between “reasonable excuse” under the 1953 Act and “good reason” under the 1988 Act – Jolie [ 2003] EWCA Crim 1543.  The degree of proof required is on the balance of probabilities. If the defendant gives an explanation for the possession of a bladed article to show that they had a good reason for possessing it and despite the fact that the prosecution cannot contradict their explanation the court is nevertheless not bound to accept their explanation -  Godwin v DPP (1993) 96 Cr. App. R. 244

Possession of certain prohibited knives: Section 1A Restriction of Offensive Weapons Act 1959

(Summary offence)

This was introduced by section 44 OWA to prohibit the possession of flick knives or gravity knives. Also note the amendment to the definition of ‘flick knife’ created by section 43 OWA.- any knife which has a blade which opens automatically either from the closed position to the fully opened position, OR from a partially opened position to the fully opened position, by manual pressure applied to a button, spring or other device in or attached to the knife.

Possession of prohibited offensive weapons in private: Section 141(1A) Criminal Justice Act 1988

(Summary offence)

This offence was introduced by section 46 OWA to prohibit the possession in private of offensive weapons as referred to in the Criminal Justice Act 1988 (Offensive Weapons) (Amendment) Order 2016/803 Section 47 OWA amended the order to include cyclone or spiral knives and zombie knives.

Section 47 OWA also inserts a defence for the possession of ‘curved swords’ in respect for the purpose of making the sword available for presentation to another person by followers of the Sikh religion at a religious ceremony or other ceremonial event.

Possession in Schools - Possession of an article with blade or point or offensive weapon on education premises: section 139A CJA

(Either way with a maximum term of 4 years imprisonment on indictment)

The elements of the offence and possible defences are the same as those in section 1 PCA and section 139 CJA.  An additional specific defence is included – ‘for educational purposes’.  [The OWA amended section 139A to include further education premises as well as school premises.]

Use of Weapons to Threaten

Threatening with an offensive weapon in public: section 1A PCA

(Either way, maximum term of 4 years imprisonment on indictment)

  • The definition of offensive weapon is the same as section 1 PCA.
  • The offence requires the prosecution to prove
  • The defendant has an offensive weapon with them in a public place,
  • unlawfully and intentionally threatens another person with the weapon,
  • and does so in such a way that there is an immediate risk of serious physical harm to that other person.

 

Threatening with an article or blade or offensive weapon in a public place or education premises: section 139AA CJA

(Either way, maximum term of 4 years imprisonment on indictment)

  • The definition of bladed or pointed article is the same as section 139 CJA. The definition of offensive weapon is the same as section 1 PCA.
  • The offence requires the prosecution to prove that:
    • the defendant had an article to which the section applies with them in a public place; or
    • the defendant had an article to which the section applies or an offensive weapon in either school premises or further education premises;
    • and unlawfully and intentionally threatened another person with the article
    • and does so in such a way that there is an immediate risk of serious physical harm to that other person.

[Threatening with an offensive weapon, bladed, or pointed article or corrosive substance in a private place: section 52 OWA *NOT YET IN FORCE*

(Either way, maximum term of 4 years imprisonment)

  • The definitions of offensive weapon, bladed or pointed article and corrosive substance are the same as section 1 PCA, section 139 CJA and section 6 OWA respectively.
  • Private place for offensive weapons and bladed/pointed articles means other than a public place, school or further education premises [but for corrosive substances means a place other than a public place.]
  • The prosecution has to prove that while A is in a private place, A unlawfully and intentionally threatens another person (“B”) with an article or substance as above, and A does so in such a way that there is an immediate risk of serious physical harm to B.
  • Physical harm is serious if it amounts to grievous bodily harm for the purposes of the Offences against the Person Act 1861.]

Offences in Prisons

Prohibition of possession by people in a prison of any article which has a blade or is sharply pointed, or other offensive weapon, in prison without authorisation: section 40CA of the Prison Act 1952

(Either way, maximum term of 4 years imprisonment upon indictment)

  • Offensive weapon is defined with reference to s1(9) of the Police and Criminal Evidence Act 1984 and therefore includes articles made or adapted for use for causing injury to persons or intended by the person having it with him for such use by them or b some other person. This could therefore include makeshift weapons manufactured by prisoners from everyday items.
  • The offence applies to all persons inside a prison including prisoners, staff and visitors.
  • 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.

See also guidance about Offences by Prisoners

Sale and Delivery of Weapons etc.

See Table of Offences – these are likely to be prosecuted by Local Authorities.

Powers to Search for Weapons (including Court Security)

Public Interest Factors

There is a strong public interest in deterring the carrying and use of offensive weapons, knives, blades and corrosive substances.

The following are compelling public interest factors in favour of prosecution which should be accorded proper weight. These include that:

  • 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.
  • Circumstances of the offence and the effect or harm upon the victim.

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).

Children and Young People

The CPS recognises the relative lack of maturity and greater vulnerability of children and young people when deciding whether to prosecute.

Prosecutors should refer to the Legal Guidance for cases involving children and young people.

It has been agreed between the NPCC and the CPS that a serious response is required for youths aged 16 and 17. This approach is covered in the joint NPCC/CPS Guidance.

Diversion in accordance with sections 66ZA and 66ZB of the Crime and Disorder Act 1998 may be appropriate in some cases. See

It is recommended that police and prosecutors apply the following approach within the Youth Offender Case Disposal Gravity Factor System when dealing with children and young people.

As well as the public interest issues raised in paragraph 4.9 onwards of the Code, prosecutors dealing with children and young people should also consider the following:

  • The suspect’s maturity, as well as their chronological age, as young adults will continue to mature into their mid-twenties.
  • Generally, the younger the suspect, the less likely it is that a prosecution is required.

However, there may be circumstances which mean that, notwithstanding the fact that the suspect is under 18 or lacks maturity, a prosecution is in the public interest. These include where:

  • the offence committed is serious.
  • the suspect’s past record suggests that there are no suitable alternatives to prosecution; and
  • the absence of an admission means that out-of-court disposals that might have addressed the offending behaviour are not available.

Individuals aged at least 16  who are  convicted of a second or subsequent offence under section 1 or 1A PCA, or section 139, 139A or 139AA of the CJA, [or section 6 OWA], are liable to an appropriate custodial sentence unless the court is of the opinion that there are particular circumstances which relate to the offence, to the previous offence or to the offender, and would make it unjust to do so in all the circumstances. See section 315 Sentencing Act 2020.

In the case of a person aged 16 or 17, the court must have regard to its duty under section 44 of the Children and Young Persons Act 1933.

Sentencing

The Sentencing Council (SC) has published guidelines for sentencing as follows:

Magistrates Court: Bladed articles and offensive weapons - possession

Magistrates Court: Bladed articles and offensive weapons - threats

Magistrates Court: Bladed articles and offensive weapons (possession and threats) – children and young people

Crown Court – Bladed articles and offensive weapons - possession

Crown Court – Bladed articles and offensive weapons – threats

Crown Court – Bladed articles and offensive weapons (possession and threats) – children and young people

These came into force on 1 June 2018.

These provide guidance for both adults and those under 18.  In relation to the latter, the guidelines work alongside the Sentencing Children and Young People guideline

Prosecutors should assist the court by drawing its attention to the SC guidance and reminding the court of the power to commit for sentence where the seriousness of the offence requires a custodial sentence of more than 6 months.

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. [The OWA extends this to cover possession of corrosive substances]

See section 315 Sentencing Act 2020.

For a minimum sentence to apply to a 'second strike' possession offence, the sequence must be conviction (guilty plea or finding of guilt) for the first relevant offence and then commission of the second “index 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 offences for both the index offence and previous convictions are set out in section 315 Sentencing Act 2020

The 'second-strike' sentences do not apply if the second offence is a threatening offence.

It does not matter what age the offender was at the commission of the first relevant offence, but they must be at least 16 years at the commission of the second offence for a minimum sentence to be imposed.

The minimum custodial sentence is at least six months' imprisonment for an offender aged 18 or over when convicted of the index offence (in a young offender institution for those aged under 21), and at least a four month detention and training order for 16 and 17 year olds.

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.

The power to make a community order is not exercisable in circumstances where the mandatory minimum sentence condition is met.

The power to make a youth rehabilitation order is not exercisable in circumstances where the mandatory minimum sentence condition is met.

Section 139AA CJA Offences

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. A Youth Rehabilitation Order can be imposed if under 16 at the date of conviction.

Murder

If 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 of the life sentence. This applies to offences of murder committed from 2 March 2010 if the offender was aged 18 or over when the offence was committed (and the case does not fall within the conditions for other appropriate starting points). See Schedule 21 of the Sentencing Act 2020

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 [and corrosive substances]. Prosecutors should refer to the Decision making in Gang Related Offences guidance.

Where appropriate, prosecutors should consider applying for a Criminal Behaviour Order to prevent such offending. 

Ancillary Orders

Prosecutors should seek forfeiture of any knives and weapons. See guidance on Sentencing - Ancillary Orders.

Knife Crime Prevention Orders (KCPOs) CURRENTLY AVAILABLE ONLY IN LONDON

OWA makes provision for KCPOs.  These civil orders are a tool that the police can use to work with young people and adults to help steer them away from knife crime and serious violence. KCPOs are intended to be preventative rather than punitive. They aim to help prevent knife crime, by using positive requirements to help steer the individual away from serious violence, by addressing factors in their lives that may increase the chances of offending. KCPOs can also include measures which prohibit certain activities or introduce geographical restrictions and curfews to help prevent future offences.

KCPOs are being piloted across London and then evaluated before a decision is taken on national implementation.

There are two types of KCPO- those made upon conviction and those made otherwise upon conviction. Interim orders are available in circumstances where an application is being made for an order otherwise than on conviction. The CPS will only be concerned with applying for the first but may be responsible for prosecuting breaches of any type of order.

Section 29 of the Offensive Weapons Act 2019 (OWA) creates an offence of breach of a KCPO, an either way offence which carries a maximum penalty of 2 years imprisonment.

Prosecutors who receive breach cases should familiarise themselves with Part 2 of the OWA.

There are no sentencing guidelines for the offence of breach of a KCPO, therefore prosecutors should refer to the Sentencing Council General Guideline but note that section 29(4) OWA prohibits the imposition of a conditional discharge for this offence.

Practical Guidance for File Building/Charging

The Knife Crime Practical Guidance has been created for the use of prosecutors and investigators and answers some of the most commonly raised issues.

Further reading

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