Public Protection and Safety PDF

Public Protection and Safety PPS13 Offensive Weapons Introduction The term ‘offensive weapon’ is used in a general sense to cover a wide variety of weapons, however the legislation has divided weapons into two groups: Offensive weapons – Article 22 Public Order (NI) Order 1987 Bla...

Public Protection and Safety PPS13 Offensive Weapons Introduction The term ‘offensive weapon’ is used in a general sense to cover a wide variety of weapons, however the legislation has divided weapons into two groups: Offensive weapons – Article 22 Public Order (NI) Order 1987 Blades /Sharp Points – Section 139 Criminal Justice Act 1988 As can be seen from media reports and stats published within the wider criminal justice system, the carrying of offensive weapons and knives is an escalating problem, which must be robustly tackled by the police service and other relevant stakeholders. In studying this topic you need to be aware that the carrying of a weapon is distinct from using the weapon, i.e. picking something up and using it as a weapon may not mean you have committed the offence of possession of an offensive weapon, although your actions may very well be covered under the Offences Against the Person Act 1961. All the circumstances must be considered and evidence gathered at every stage of the investigation, before submitting cases to the PPS. Possession of an Offensive Weapon ‘A person who, without lawful authority or reasonable excuse (proof of which lies on him), has with him in any public place any offensive weapon shall be guilty of an offence’. Article 22(1) Public Order (NI) Order 1987 Hybrid offence – triable either way. Summary: 6 months and/or maximum fine up to £5000. Indictment: 4 years’ imprisonment. OFFICIAL [PUBLIC] Page 266  Offensive Weapon ‘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’. Made These are perhaps the easiest to identify in that they have been manufactured from the start to cause injury to a person, for example a knuckleduster, flick knife, butterfly knife, baton, and bayonet. Adapted This is an item which has been altered in some way to allow it to be used to cause injury, for example a baseball bat with nails protruding from it, a sharpened coin, a bottle broken so that it has jagged edges (R v Simpson 1983), or a potato with razor blades inserted into it (R v Williamson 1978). If the item itself has not been altered in any way then it has not been adapted, for example a Jif bottle which was filled with ammonia to squirt into someone’s eyes was not held to be an adapted weapon (R v Formosa 1991). The ultimate victim of the weapon is irrelevant. Consider a person who is carrying an offensive (adapted) weapon with the intention of self-harming or committing suicide. Are they in possession of an offensive weapon if they themselves are the intended victim? This does not appear to have been tested by the courts but the legislation is concerned with the nature of the article itself, not the intended victim, so in these circumstances the offence would be complete. OFFICIAL [PUBLIC] Page 267 Intended This could be almost anything. These are items which have neither been made as weapons nor adapted to be used as weapons. In other words, they are innocent items that the carrier has with them with the intention of causing injury to another, for example a snooker cue or hammer. In these cases the intention of the defendant is relevant and it’s up to the prosecution to prove their intention was to cause injury. Therefore it’s up to you as a police officer to gather evidence of this intention at every stage of your investigation (circumstances of the incident, police observations, witness statements, defendant’s statements before and after caution, and during interview). Have a Blade or Sharp Point in Public Offence of having article with blade or point in public place (1) Subject to subsections (4) and (5) below, any person who has an article to which this section applies with him in a public place shall be guilty of an offence. (2) Subject to subsection (3) below, this section applies to any article which has a blade or is sharply pointed except a folding pocketknife. (3) This section applies to a folding pocketknife if the cutting edge of its blade exceeds 3 inches. (4) It shall be a defence for a person charged with an offence under this section to prove that he had good reason or lawful authority for having the article with him in a public place. (5) Without prejudice to the generality of subsection (4) above, 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) for use at work; (b) for religious reasons; or (c) as part of any national costume. OFFICIAL [PUBLIC] Page 268  Section 139 Criminal Justice Act 1988 Hybrid offence – triable either way. Summary: 6 months and/or maximum fine up to £5000. Indictment: 4 years’ imprisonment. The blade or cutting edge does not have to be sharp. A blunt butter knife has been found to fall under the definition (Brooker v DPP 2005). Just because a knife is part of some other item, such a utility tool or a Swiss Army knife, doesn’t mean it is legal to have in a public place (R v Giles 2003). If it’s capable of being locked open, or the blade is longer than 3 inches, it will fall under the definition of an item prohibited under section 139. Defences Subsection (4) outlines a defence for a person charged with this offence if they can prove that they had good reason or a lawful excuse for being in possession of the article in a public place. The terms ‘good reason’, ‘lawful excuse’, and ‘public place’ will be explained in the section below. What about the garden of a house? A person standing in the garden could easily attack a passer-by by leaning over the fence or hedge, so you might think that this should be treated as a public place. However, it has been found that the front garden was not a public place even though it was quite narrow and a person standing therein could easily reach people passing by (R v Roberts 2003). Subsection (5) provides a defence for a person charged with this offence if they can prove they had it: For use at work; For religious reasons; As part of any national costume. OFFICIAL [PUBLIC] Page 269 Members of the Sikh religion may carry kirpans, a curved sword or knife typically 3-9 inches long and made of steel or iron. The blade may be blunt or sharpened. People wearing traditional Scottish Highland dress may be carrying a sgian-dubh in the sock or hose of the kilt. A sgian-dubh is a small knife with a single cutting edge. Lawful Authority ‘Lawful authority’ refers to situations where people are required to carry weapons as part of their duty, such as police officers who carry batons or members of the military who carry bayonets. However, security guards who carry truncheons, even if their contract requires them to do so, do not have lawful authority (R v Spanner 1973). That notwithstanding, even if someone doesn’t have lawful authority to be in possession of an offensive weapon they may still have a reasonable excuse. Reasonable Excuse ‘Reasonable excuse’ can be found in a number of situations. Trades persons such as builders who carry claw hammers or a carpenter who has a Stanley knife in a tool bag for work may have a reasonable excuse. Likewise a person who happens to be passing the scene of a violent incident where a weapon has been used may have a reasonable excuse for possessing a weapon if they have retrieved it from the scene with the sole intention of immediately taking it to a police station. The defendant’s state of mind when considering a defence of good reason, e.g. if they were angry and/or intoxicated and/or traumatised should be left to the court/jury to decide. Once the PPS establishes that the defendant had an offensive weapon with them, it is for the defendant to prove that they had lawful authority or a reasonable excuse. This a reversal of the usual burden of proof in that it’s normally for the prosecution to prove something, whereas as in this case it’s for the defendant to do so. This burden of proof is judged against the balance of probabilities. The placing of the burden of proof on the defendant is legitimate and compatible with Human Rights. (L v DPP 2003 – see Classis Online for discussion in class only, not examinable). OFFICIAL [PUBLIC] Page 270 Has With Him Using this phrase within the definition of the offence underlines that the point of the legislation is to prevent people carrying weapons. Generally this offence isn’t concerned with a person’s intentions, i.e. the reasonable excuse defence only relates to the carrying of the weapon, not the person’s intentions in carrying it (R v Jura 1954). The phrase ‘has with him’ is understood when you consider cases where a person uses an otherwise innocent article as an offensive weapon. For example, a builder who lifts a hammer out of his tool bag and hits someone with it was in possession of the article before he formed the intention to use it and therefore had not committed the offence (Ohlson v Hylton 1975). Likewise a person who picks up a discarded knife during a fight (Bates v Bulman 1979) or who brandishes a wrench from the boot of their car (R v Dayle 1974) have not committed the offence. This is because the law is concerned with preventing people from arming themselves with weapons. It is also possible for more than one person in a group to have the one weapon ‘with him’; if you can show that they knew of its existence in the hands of another at the time (R v Edmonds 1963). You need to show that the defendant knew they had something with them and that the something was actually an offensive weapon (R v Cugullere 1961). Public Place ‘Any street, road or highway and any place to which at the material time the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission’. Article 2(2) Public Order (NI) Order 1987 Offensive Weapons and Schools Concern over the increased carrying of weapons by young people has prompted legislators to give extra powers when dealing with schools. We have just read about Section 139 of the Act which deals with having articles in a public place, Sec 139A covers OFFICIAL [PUBLIC] Page 271 having them in schools. Blades and Sharp Points in Schools ‘Any person who has an article to which section 139 of this Act applies on school premises shall be guilty of an offence.’ Subsection (1) of Section 139A Criminal Justice Act 1988. Hybrid offence – triable either way. Summary: 6 months and/or maximum fine up to £5000. Indictment: 4 years’ imprisonment. Offensive Weapons in Schools ‘Any person who has an offensive weapon with him on school premises shall be guilty of an offence.’ Subsection (2) of Section 139A Criminal Justice Act 1988. Hybrid offence – triable either way. Summary: 6 months and / or maximum fine up to £5000. Indictment: 4 years’ imprisonment. The term ‘school premises’ means land used for the purposes of a school excluding any land occupied solely for a dwelling by a person employed at the school. Consider a head teacher who has a house within the school grounds. Provided the house isn’t used for lessons or tutorials then it is not covered by the term ‘school premises’. Likewise the house of a caretaker who lives on the school grounds would not be covered. Defences Subsection (3) outlines a defence for a person charged with this offence if they can prove that they had good reason or a lawful excuse for being in possession of the article in the premises in question. OFFICIAL [PUBLIC] Page 272 Subsection (4) provides a defence for a person charged with this offence if they can prove they had it: For use at work; For educational purposes; For religious reasons; As part of any national costume. Note the extra defence – for education purposes – which is not provided under Section 139 of the Act. Procedures Power to enter, search, and seize Section 139B of the Act gives the following powers: A Constable may enter school premises and search those premises and any person on those premises for:  Any article to which Section 139 applies; or  Any offensive weapon; if he has reasonable grounds for suspecting that an offence under Section 139A is being, or has been, committed. If you discover a weapon or article which you have reasonable grounds to suspect to be covered by (1) you may seize it. You may use reasonable force, if necessary, in exercising this power. Case Law As you may imagine almost every defence has been tried and tested in the courts so it will be helpful to consider a number of stated cases. You should be aware however that just because a person introduces a reasonable excuse which has been tested in the courts before does not necessarily mean they will escape conviction – the courts still retain a wide degree of discretion and will consider all the circumstances and all the OFFICIAL [PUBLIC] Page 273 evidence in your case before making a decision. The following situations are examples of the ‘reasonable excuse’ defence. While you will not be tested on the particulars of any stated cases, it would be of benefit to you to study them in your own time to gain a better understanding of this offence:  Not being aware that you had an offensive weapon with you is not a reasonable excuse in itself (R v Densu 1998)  Forgetting you have an offensive weapon with you is not a reasonable excuse (R v Lorimer 2003), nor is forgetting that there is one in the car you are driving (R v McCalla 1988)  However, in a case of a taxi driver who was in possession of a piece of wood and a cosh which had been left behind by his passengers earlier in the week , the Court of Appeal found that his forgetting to remove them may have been considered a reasonable excuse and should have been left to a jury to consider (R v Glidewell 1999) There are other circumstances where forgetfulness can be related to “good reason”:  As a result of illness or medication (Bayliss v DPP 2003).  It is not reasonable to carry a weapon as a general precaution in case you are attacked (Evans v Hughes 1972).  It may be reasonable to have a weapon if you have good grounds to anticipate an unlawful attack, e.g. for a person guarding cash transits (Malnik v DPP 1989).  It has been found that a person picking up a metal bar to defend themselves having been threatened 5 minutes earlier by a group in car did not have a reasonable excuse, this was because the group in the car had no weapons and although the person in question believed an attack was imminent, his belief was not reasonable in the circumstances (N v DPP 2011).  Having a weapon for some other reason may amount to a reasonable excuse to be considered by a court / jury, e.g. a person who at Halloween dressed up as a police officer and carried a baton was found to have a reasonable excuse (Houghton v Chief Constable GMP 1987). OFFICIAL [PUBLIC] Page 274 Offense of having a corrosive substances in a public place From October 2022 the offence of having a corrosive substance in a public place has become law. This gives police specific legislation to deal with the ever increasing numbers of acid attacks on individuals. Offence of having a corrosive substance in a public place A person commits an offence if they have a corrosive substance with them in a public place. Section 6(1) Offensive Weapons Act 2019 It is a defence for the defendant to prove that they  had good reason or lawful authority (section 6(2))  had it for use at work (section 6(3)) Corrosive Substance A substance which is capable of burning human skin by corrosion Public Place includes any place to which, at the time in question, the public have or are permitted access, whether on payment or otherwise This is a hybrid offence. Summary conviction: imprisonment for a term not exceeding 6 months, to a fine not exceeding the statutory maximum or to both; Conviction on indictment: to imprisonment for a term not exceeding 4 years, to a fine or to both. OFFICIAL [PUBLIC] Page 275