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An offensive weapon is a tool made, adapted or intended for the purpose of inflicting physical injury upon another person. [1] [2]
Under England and Wales' Prevention of Crime Act 1953, Section 1(1) states it is an offence to carry an offensive weapon on or about the person while in a public place without a lawful authority or reasonable excuse. Prohibited weapons may include a knuckleduster, baton, hammer or knife.
Both subsection 4 of this section and the Court of Appeals decision R v Simpson (1983) consider essentially three types of offensive weapon:
An offensive weapon is defined in this section 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" [3]
The legislation further defines a "public place" under subsection 4:
"In this section, 'public place' is taken to include 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 is mirrored through R v Kane (1965). [4] For example, any private property e.g. a person's home or personal vehicle, the area behind the sales counter of a petrol station, a fenced off building site or an office building would be not considered a public place because the public obviously do not have lawful access to such areas. This is because the Prevention of Crime Act 1953 only prohibits offensive weapons in a public place. [3] [5] [6]
A Constable may arrest without warrant any person whom he has reasonable cause to believe to be committing an offence under subsection (1) of section 1, if the Constable is not satisfied as to that person's identity or place of residence, or has reasonable cause to believe that it is necessary to arrest him in order to prevent the commission by him of any other offence in the course of committing which an offensive weapon might be used. [3]
Section 141 of the Criminal Justice Act 1988 creates the Either way offence of "any person who manufactures, sells or hires or offers for sale or hire, exposes or has in his possession for the purpose of sale or hire, or lends or gives to any other person, a weapon to which this section applies". [7] These weapons are listed below.
As of May 2019, Part 4 Section 46 the Offensive Weapons Act 2019 [8] added subparagraph 1A to Section 141 of the Criminal Justice Act 1988 which created the summary offence of possession of the following offensive weapons "in private" (as defined below): [9] [10]
The weapons this section applies to relate to are listed under Schedule 1 of the Criminal Justice Act 1988 (Offensive Weapons) Order 1988. [11] Exemptions are provided for weapons over 100 years old from the time of the offence [12] as well as crossbows and anything under the Firearms Act 1968. [9] Section 141(4) creates an offence of importation any weapon to which this section applies. [9] The list as it currently stands is:
Due to the sweeping implementation of the Offensive Weapons Act 2019, Part 4 Section 46 redefined the previous offence wording of "manufacturing, sells, offers for sale or hire, lending", etc. in relation to the above was replaced with subsection 1(A) which states: "Any person who possesses a weapon to which this section applies in private is guilty of an offence". This takes the ban from a total effective one to an outright one. [18] "Private" is also defined as "...a place other than (a) a public place, (b) school premises, (c) further education premises, or (d) a prison." [19]
N.B. Items covered under the Firearms Act 1968 and crossbows are exempt from being added to this section as per subsection 2.
The most recent amendment to the list of prohibited weapons in the Criminal Justice Act 1988 (Offensive Weapons) Order further introduced a ban on the zombie knife in 2016.
Importation of any offensive weapon listed in this section is also an offence under Section 141(4) of this act. [7]
The same wording and general countrywide prohibition is applied to switchblades, gravity knives and flick knives under Section 1 of the Restriction of Offensive Weapons Act 1959: [20]
...any knife which has a blade which opens automatically by hand pressure applied to a button, spring or other device in or attached to the handle of the knife, sometimes known as a "flick knife" or "flick gun"; or (b) any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force and which, when released, is locked in place by means of a button, spring, lever, or other device, sometimes known as a "gravity knife".
As of May 2019, the Offensive Weapons Act 2019 further included the definition of all Assisted opening knives which did not meet this definition as not opened through anything in or attached to the handle. Part 4, Paragraph 43 therefore added the following definition to Section 1 Restriction of Offensive Weapons Act 1959:
...any knife which has a blade which opens automatically (i) from the closed position to the fully opened position, or (ii) 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, and which is sometimes known as a "flick knife" or "flick gun""
Section 139 of the Criminal Justice Act 1988 also creates an offence of having a pointed or bladed article in a public place without good reason or lawful authority. [21] Certain exemptions exist, namely if the knife is a pocket knife that does not lock in place and if the cutting edge (not blade) is under 3 inches. It is also a recognised defence for a person charged under this section to prove that he had the article with him for use at work, for religious reasons or as part of any national costume.
Despite the carrying of an offensive weapon in a public place being a criminal offence, suspected offenders are given the ability to raise a defence on the civil burden of proof i.e. on the balance of probabilities. This defence is that the offender, on the balance of probabilities, had lawful authority or reasonable excuse for having the weapon in public. [22]
The offence of carrying an offensive weapon in a public place refers to something made, adapted or intended to be used on a person as the offence wording states in Section 1(4) "offensive weapon" means 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. [3]
This raises two individual points in relation to potential defences: whether an offensive weapon would not be considered as such if intended to be used on a non-human assailant (e.g. dog), although this has not yet been tested in court. The current sale of various defensive dog sprays to the public would suggest that there would be some scope for this under law.
The above wording also presents another potential defence of whether or not the item was intended to, or even capable of, causing injury to a person. CPS v Christof [2015] EWHC 4096 (Admin) reiterates "Some items, however, betray the purpose for which they are made by their very design" and "the actual or perhaps deemed intention of the manufacturer is a relevant factor", which implies that the opposite may also be true - a lack of manufacturer's intention or offensive design for the item to be an offensive weapon under the scope of the Prevention of Crime Act 1953 may mean that the item is regarded as not having a criminal purpose. [23]
An offensive weapon obtained, possessed or used immediately preceding an imminent attack or during attack in a public place may well be considered reasonable excuse. This could be either an item made as an offensive weapon, adapted or an every day item that was not intended originally to be carried as an offensive weapon (e.g. golf clubs, walking stick), but during an imminent attack they rightfully became a "weapon of opportunity". [22] The first test of this defence was affirmed by R v Jura [1954] 1 QB 503, 38 Cr. App. R. 53, CCA. [22] [24] [25] This appeal stated that possession of an article for legitimate purposes in public would be later held to be possessing it guilily if the intent to use the article in an offensive manner was formed before imminent violence has arisen.
This was later clarified in Evans v Hughes [1972] QBD where the justices held that it was not relevant in the case "for the defence of reasonable excuse to be successful there had to be an imminent particular threat, not the constant carriage of an offensive weapon on account of some enduring threat or danger".
While concealed or open carry of any weapon is generally prohibited in England/Wales/Scotland, the Prevention of Crime Act 1953 only prohibited this in a public place. [3] Therefore, the carrying of an offensive weapon at home (i.e. private property) or behind the counter of a shop, fenced off building site, access controlled office block, etc. would be perfectly legal as these are not places the public have a lawful right of access [3] [5] [6]
Section 139(2) of the Criminal Justice Act 1988 defines a bladed/pointed article as "...any article which has a blade or is sharply pointed except a folding pocketknife". [26]
In relation to the offence of having a bladed or pointed article in a public place under Section 139 Criminal Justice Act 1988, as per subsection (4), "good reason" or "lawful authority" would be required. [27]
Subsection (3) waives the "good reason" or "lawful authority" requirement when the item is a folding (non-locking) pocket knife if the cutting edge does not exceed 3 inches, as this knife is not illegal to carry in public. [21] The cutting edge is different from the blade length. Other reasonable excuses are specifically listed in the defences in subsection (5), [21] [22] which states:
it shall be a defence for a person charged with an offence under this section to prove that he had the article with him:
(a) he had "good reason or lawful authority" for having the bladed or pointed article; or
(b) for use at work;
(c) for religious reasons; or
(d) as part of any national costume
This section also goes on to define a public place in subsection 7 as "any place to which at the material time the public have or are permitted access, whether on payment or otherwise". A defence to this charge could also be that the place the item was found upon the person was not a public place at the time. Such a place could be a fenced off building site, or public park outside the opening hours.
This defence would obviously only apply to the bladed article offence. The scope of Section 1 Prevention of Crime Act 1953 would be a separate matter.
For the purposes of sections 139 and 139A of the Criminal Justice Act 1988, the courts have held: [22] [1]
In New Zealand, the definition is "anything that can be used to cause injury". [44]
In South Australia, "offensive weapon" is defined by the Summary Offences Act 1953 as including "a rifle, gun, pistol, knife, sword, club, bludgeon, truncheon or other offensive or lethal weapon or instrument but does not include a prohibited weapon". [45]
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