Offensive weapons, knives, bladed and pointed articles
Principles
Prosecutors should recognise that carrying an offensive weapon, or a knife, or a bladed/pointed article is a serious offence. The unlawful provision and possession of all weapons encourages violence and can cause serious injury and death in addition to facilitating other criminal offences. This guidance applies to both adults and youths.
The CPS and Association of Chief Police Officers (ACPO) have agreed to issue refreshed guidance on the investigation, cautioning, and prosecution of carrying an offensive weapon, or a knife, or a bladed/pointed article. (ACPO is issuing separate guidance to police officers).
There is a strong public interest in deterring the carrying and use of knives and other offensive weapons. Accordingly, where there is sufficient evidence to provide a realistic prospect of conviction, the public interest will normally require a prosecution.
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: [use and carrying offences; see guideline case of Celaire and Poulton 20031 Cr.App.R (S) 610 and the Magistrates' courts' sentencing guidelines];
- 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; or
- 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, that the offence was committed in a hospital or public house, or that the defendant was motivated by hostility to another individual or group.
The Code makes clear [Paragraph 5.7] that a prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour.
Guidance
Selecting the charge
Paragraph 7.1 of the Code for Crown Prosecutors states that Crown Prosecutors should select charges which:
- reflect the seriousness of the offending;
- give the court adequate sentencing powers; and
- enable the case to be presented in a clear and simple way.
This means that Crown Prosecutors may not always continue with the most serious charge where there is a choice nor continue with more charges than are necessary. However, where there is evidence that an offence, other than having a knife or weapon, has been committed, 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.
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 Public Order Offences, incorporating the Charging Standard, elsewhere in this guidance. The most appropriate charges are likely to be drawn from the following:
Either Way offences
- Section 1 Prevention of Crime Act 1953 (Offensive Weapons) (Archbold 24-106 - 124)
- Section 139 Criminal Justice Act 1988 (Bladed and Pointed Articles) (Archbold 24-125 - 128)
- Section 139A Criminal Justice Act 1988 (Offensive Weapons, Bladed and Pointed Articles on school premises) (Archbold 24-129 - 131a)
- Section 28 Violent Crime Reduction Act 2006 (Using another person to mind a dangerous weapon) (Archbold 24-143 - 146)
- Section 1 Knives Act 1997 (Unlawful marketing of knives etc.) (Archbold 24-133 - 142) (Stones 8-22728 - 22738)
Summary offences
- Section 1 Restriction of Offensive Weapons Act 1959 (manufacture, sale etc. of flick knives and gravity knives) (Stones 8-22649)
- Section 1 Crossbows Act 1987 (sale/let crossbows to a person under 18) (Stones 8-22660)
- Section 2 Crossbows Act 1987 (purchase/hire of crossbow by a person under 18) (Stones 8-2261)
- Section 3 Crossbows Act 1987 unsupervised possession of a crossbow by a person under 18) (Stones 8-22662)
- Section 141 Criminal Justice Act 1988 (manufacture, sale etc. of offensive weapons) (Stones 8-22684)
- Section 141A Criminal Justice Act 1988 (sale of knives, axes, swords etc. to a person under 18) (Stones 8-22685)
Possession of an offensive weapon
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. (Archbold 24-106a)
The term 'offensive weapon' is defined as: "any article made or adapted for use to causing 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 (24-115 Archbold).
Lord Lane, CJ. in R.-v-. Simpson (C), (78 Cr.App.R.115), identified three categories of offensive weapons:
- those made for causing injury to the person i.e. offensive per se. For examples of weapons that are offensive per se, see Criminal Justice Act 1988 (Offensive Weapons) Order 1988, (Stones 8-22744) and case law decisions. (Archbold 24-116);
- those adapted for such a purpose;
- those not so made or adapted, but carried with the intention of causing injury to the person.
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.
Defence
The defendant is entitled to be acquitted if he shows on the balance of probabilities that he had "lawful authority or reasonable excuse" for having the weapon (Archbold 24-119). Where details of a defence are given in interview or in a defence statement, the CPS should consider whether evidence is available to rebut the defence and should liaise with the police if additional enquiries or evidence are necessary.
Possession of blades/points
Section 139 of the Criminal Justice Act 1988 prohibits the possession in a public place of any article which has a blade or is sharply pointed, (including a folding pocket knife if the cutting edge of its blade exceeds 7.62cm/3 inches) (Archbold, 24.125)
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 and 139A of the Act:
- a butterknife, with no cutting edge and no point is a bladed article; (Booker v DPP 169J.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).
Powers to search for blades/points
The police power to search school premises for bladed and pointed article and offensive weapons was amended by section 48 Violent Crime Reduction Act 2006 with effect from 31 May 2007 and allows the police to exercise this power if there are reasonable grounds for suspecting that an offence under section 139A (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 with effect from 1 October 2007.
Defence
The defendant 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; (Archbold 24-125).
The defendant does not discharge the burden of showing "good reason" just by providing an explanation that is not contradicted by the prosecution evidence: (Archbold 24-128). Where details of a defence are given in interview or in a defence statement, the CPS 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.
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.
Sentencing
The prosecutor should draw the following sentencing guidance to the court's attention.
Magistrates' courts - Offensive weapons and bladed articles
The Magistrates' Courts Sentencing Guideline (Stones 3-3080) for a first time offender pleading not guilty to possession of a bladed instrument or offensive weapon is to consider whether the offence is so serious that only custody is appropriate.
In making its decision on sentence, the magistrates' court is required to consider culpability, harm and aggravating and mitigating features when taking a preliminary view of the seriousness of the offence, including:
Aggravating features
- Group action or joint possession
- Location of offence
- Offender under the influence of drink or drugs
- People put in fear/weapon brandished
- Planned use
- Very dangerous weapon
Mitigating features
- Acting out of genuine fear
- Carried only on a temporary basis
- No attempt to use
- Not premeditated
Youth courts
It will almost always be appropriate, in the case of young offenders, to obtain a pre-sentence report before proceeding to sentence: (Archbold 24-109).
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 CA 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, which had no aggravating factors (such as possession of a weapon with no legitimate purpose) and much mitigation: (Archbold 24-127).
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: (Archbold 24-109)
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
- in circumstances involving any of the aggravating factors set out below: (Archbold 24-109)
(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, sec 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 guidance
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;
- the nature of the weapon(s) involved.
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.
Ancillary Orders
Prosecutors should seek forfeiture of any knives and weapons.
An Anti-Social Behaviour Order should be applied for where the offender's behaviour has caused or was likely to cause harassment, alarm or distress to person(s) outside his household and the Order is necessary to protect relevant persons from further anti-social acts by him.
Useful references
Celaire and Poulton 20031 Cr.App.R (S) 610
Magistrates' courts' sentencing guidelines
Code for Crown Prosecutors
Public Order Offences, incorporating the Charging Standard, elsewhere in this guidance
Archbold 24-106 - 124
Archbold 24-125 - 128
Archbold 24-129 - 131a
Archbold 24-143 - 146
Archbold 24-133 - 142
Stones 8-22728 - 22738
Stones 8-22649
Stones 8-22660
Stones 8-2261
Stones 8-22662
Stones 8-22684
Stones 8-22685
Archbold 24-106a
24-115 Archbold
R.-v-. Simpson (C), (78 Cr.App.R.115)
Stones 8-22744
Archbold 24-116
Archbold 24-119
Archbold, 24.125
Booker v DPP 169J.P. 368, DC
R v Davis [1998] Crim L.R. 564 CA
R v Deegan [1998] 2 Cr.App,R 121 CA
Archbold 24-125
Archbold 24-128
Stones 3-3080
Archbold 24-109
R v Williams [2007] 1 Cr.App.R.(S) 207 CA
Archbold 24-127
Archbold 24-109
Archbold 24-109
R v Poulton
R v Celaire [2003] 1 Cr.App. R.(S)
R v Avis [1998] 1 Cr.App.R.420 CA