04-07.1 Offensive Weapons Part 1_fad8793e5dbb8af2cff055f4817d67d7.pdf

OFFICIAL Unit 4 Lesson 7.1...

OFFICIAL Unit 4 Lesson 7.1 Offensive Weapons - Part 1 Lesson Aim: The learner will be able to explain legislative considerations in relation to persons possessing offensive weapons or bladed articles Learning Outcomes: Introduction On successful completion of the lesson, students will be able to:- While on operational duties, you may receive calls relating to weapons being used. You 1. Explain the legislation in relation to may also discover weapons whilst searching offensive weapons a person. These weapons can come in many forms, from the obvious to the more creative. 2. Define the term ‘offensive weapon’ and explain the different categories of This is why it is so important to have an offensive weapons understanding of the legislation, what an offensive weapon is and your powers in relation to these weapons. 3. Detail your powers to search persons you suspect of possessing an offensive weapon in a public place 4. Explain the offence of obstructing a search or concealing an item during a search 1 th Amended 25 April 2024 v.3 OFFICIAL  OFFICIAL Unit 4 Lesson 7.1 Offensive Weapons Part 1 Legislation The legislation covered in this lesson is the Criminal Law (Consolidation) (Scotland) Act 1995. Offence Section 47(1) Criminal Law (Consolidation) (Scotland) Act 1995 creates the offence for:- any person who has with him in any public place any offensive weapon shall be guilty of an offence Public Place “Means any place other than:- domestic premises, i.e., premises occupied as a private dwelling and includes any stair, passage, garden, yard, garage, outhouse or other appurtenance of such premises which is not used in common by the occupants of more than one such dwelling; school premises; or a prison.” Note:- whilst this might suggest that it is lawful to possess an offensive weapon in a school or prison, this is not the case. Any such possession would contravene section 49 (a) or (c) of the Criminal Law (Consolidation) (Scotland) Act 1995, respectively. (Covered later in this lesson) To secure a conviction the prosecution must prove beyond all reasonable doubt that the accused had possession of an offensive weapon in a public place. It is a defence for a person charged with the offence to show that they had reasonable excuse or lawful authority to have the weapon with them in the public place. 2 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 7.1 Offensive Weapons Part 1 Definition of an Offensive Weapon “An offensive weapon includes any article:- made, or adapted for the use of causing injury to the person, or intended by the person having it with them for such use by either themselves or by some other person.” From this you can see that there are three types of offensive weapons. Let’s look at each of these. Made Some articles are designed from the outset to cause injury. Examples:- knuckle-dusters batons Adapted These are articles that have been adapted in some way so that they cause injury. Almost anything can be adapted. Examples:- metal comb with sharpened handle bicycle chain with handle fitted golf ball with nails in it school tie with a golf ball within 3 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 7.1 Offensive Weapons Part 1 Intended These are articles, which under normal circumstances are made for legitimate purposes and which have not been physically adapted for use. Such an item only becomes an offensive weapon if it is obvious that it is the offender’s intention to use the article as a weapon. Example:- A golf club Belt A baseball bat These are not made or adapted as a weapon. It could become an offensive weapon if they were brandished in an intimidating manner. Note:- The expression "intended by the person having it with them for such use by either themselves or by some other person" is used to expressly cover the situation where A, who has no intention whatsoever to use the item as a weapon, possesses it on behalf of B who does. (e.g. a girl in possession of a knuckle-duster which she will pass to her boyfriend if he gets into a fight). Activity 1 A1 Have a look at the images in Appendix A and decide which are made, adapted or intended. 1. 2. 3. 4. 5. 6. 4 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 7.1 Offensive Weapons Part 1 Defence The act further states; It is a defence for a person charged with an offence under subsection (1) to show that the person had:- a reasonable excuse or lawful authority for having the weapon with the person in the public place. Reasonable Excuse This term means if the person has an excuse that is considered reasonable by the court, then they won’t be convicted. This might apply to a person who finds a weapon and takes it to a police station or a worker carrying an implement which might be considered an offensive weapon in other circumstances during the course of his or her employment. Therefore, they might be in possession in a public place but the excuse is reasonable. The carrying of offensive weapons purely for self-defence is not regarded as a reasonable excuse. Lawful Authority This term means exactly what it says, that the person is permitted by law to carry the weapon in the course of their duty. Example:- A Constable carrying their baton A soldier with a bayonet This authority would only be permissible while in the execution of their duties. 5 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 7.1 Offensive Weapons Part 1 Example:- A carpet fitter finishes duty, parks his work van at local public house, takes off his work belt and enters public house to consume alcohol after work. He forgets he has a screwdriver is his pocket. A fight breaks out and the carpet fitter gets involved. On arrival of Police, he is arrested for his part in the fight and is found to be in possession of the screwdriver. He claims he forgot it was there as he had just finished work. The carpet fitter would be further charged with being in possession of an offensive weapon, but it would be up to the Court to decide if his excuse was reasonable. Activity 2 A2 Read the following scenarios and discuss in your group the following:- 1. What category of weapon has been disclosed? 2. Does the explanation given constitute “reasonable excuse" as outlined in this lesson note? A. You are on patrol when you and a colleague have occasion to stop a taxi. You note that the driver has a length of rubber hose with a piece of metal at one end within the driver’s door pocket. Unprompted, the driver states, “I have this for my protection, you never know who might come in my taxi”. 6 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 7.1 Offensive Weapons Part 1 Activity 2 continued A2 B. Two drivers stop at a set of traffic lights and begin arguing about the standard of each other’s driving. One driver gets out of his car, opens the boot and produces a wheel brace which he begins to wave at the other driver in a menacing manner. C. Following a fight involving local youths, a member of the public finds a knuckle-duster in the street. She takes possession intending to hand it in to the local police station. A short time later you see this person near to the police station carrying a knuckle-duster in a clear plastic bag. 7 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 7.1 Offensive Weapons Part 1 Power of Search Your power to search for an offensive weapon is contained in Section 48(1) of the Act. It states:- Where a Constable has reasonable cause to suspect that a person is carrying an offensive weapon and has committed or is committing an offence under section 47 (unlawful possession of an offensive weapon in a public place), the Constable may:- search that person, without warrant, and detain them for such time as is reasonably necessary for the search provided that they inform the person of the reason for their detention. Whilst the Section 47 offence can only be committed in a public place, such a search may be conducted in any place the Constable has a right to be at that time. Section 48(1) does not give the police power to stop and search vehicles. Professional Standards PS For each individual you search you must have a reasonable suspicion that the person is in possession of an offensive weapon. A general suspicion that someone in a group has a knife does not entitle you to search every member of the group. At the time of the search, note the details of the person and the purpose of the search in your notebook. It is common for defence lawyers to argue that their client’s privacy has been invaded by searching without justification. 8 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 7.1 Offensive Weapons Part 1 Police Powers A Section 47 offence is punishable by imprisonment and arrest under Section 1 of the Criminal Justice (Scotland) Act 2016 should be considered. Example Charge EC “On 23rd March 2020 at Middle Drive, Brookbank, a public place, you JOHN GRIFFITHS did, without reasonable excuse or lawful authority, have with you an offensive weapon, namely a snooker cue with a protruding nail, contrary to Section 47 of the Criminal Law Consolidation (Scotland) Act 1995.” Obstructing a Search Anyone who:- A. intentionally obstructs a Constable when exercising his or her powers of search, or B. actively conceals an offensive weapon from a Constable at the time of such a search commits an offence under Section 48(2) of the Act. For Example:- Throwing away or actively concealing an item during a search. Concealment, however, requires the accused to actively prevent you from discovering a weapon during your search in a manner which falls short of obstruction. It is not concealment for the suspect to merely fail to tell you where any weapon in his possession is. 9 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 7.1 Offensive Weapons Part 1 Feedback 1 F1 1. Intended 2. Adapted 3. Adapted 4. Made 5. Intended 6. Made 10 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 7.1 Offensive Weapons Part 1 Feedback 2 F2 1. Adapted. The rubber hose was not made to cause injury; however, it has been changed to include the piece of metal. This was deliberate in order that it could then be used to cause injury. No. The possession of such an article could not be considered reasonable. Case Law A taxi driver, who had with him, in the driver's compartment of the taxicab, an "offensive weapon", namely a piece of rubber hose about two feet long with a piece of metal inserted in one end, was convicted. In the course of an appeal against conviction, it was argued that the taxi driver had a reasonable excuse for having the weapon in the vehicle with him, in respect that he had a reasonable expectation of being compelled to use it for the legitimate purpose of self- defence. Held, that this defence had not been established, and conviction upheld. (Grieve v. MacLeod, 1967 S.L.T 70) 2. Intended Under normal circumstances a wheel brace is made for an innocent purpose and has not been adapted for use as a weapon. However, the wheel brace becomes an offensive weapon when the driver has brandished it at the other driver in a menacing manner. The intention was obviously to cause injury. No. The possession of the wheel brace is not an offence but using it as a weapon creates the offence. 3. Made The knuckle-duster was designed and made from the outset as a weapon to cause injury. Yes. There is a reasonable excuse. Although the member of the public did not have lawful authority to possess the weapon, they took it with the intention of handing it to the police as soon as possible. 11 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 7.1 Offensive Weapons Part 1 Offensive Weapons Act 2019 In response to the rise in serious violence, the UK Government created the Offensive Weapons Act 2019 The Act creates new powers, amends existing legislation controlling the sale of knives and corrosive substances and introduces new offences relating to their possession and use. This legislation is UK wide. Section 6 of the Offensive Weapons Act 2019 Section 6 of the Act creates an offence for a person to have with them, in a public place, a corrosive substance. Statutory Defence If charged with this offence, it is a defence for an accused to show; they had a reasonable excuse or lawful authority for having the corrosive substance with them in a public place or they had the corrosive substance with them for use at work Definitions A “corrosive substance” is a substance capable of burning human skin by corrosion A “public place”, in Scotland, is any place other than premises occupied as a private dwelling, including any stair, passage, garden, yard, garage, outhouse, driveway etc. of such premises which is not communal use by the occupants of more than one such dwelling. Section 11 – Power of Search If a constable has reasonable grounds for suspecting that a person is carrying a corrosive substance, and has committed or is committing an offence under section 6; The constable may search the person without warrant, and detain the person for such time as is reasonably required to permit the search to be carried out. The constable must inform the person the reason for doing so. 12 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 7.1 Offensive Weapons Part 1 During the search, if the constable finds a substance which they reasonably suspect to be a corrosive substance, they may seize and retain the substance and any article in which it is contained. Obstruction A person commits an offence if they: Intentionally obstruct a constable in the exercise of the constable’s powers under Section 11, or Conceals a corrosive substance from a constable acting in the exercise of those powers. Section 1 - Sale and Delivery of a Corrosive Product Section 1 of the Act creates an offence for a person to sell a corrosive product to a person who is under the age of 18. Note- this section 1 offence can also apply to remote sales, where there are additional specific defence provisions under S2 (as below) Statutory Defence Under Section 2 of the Act there is a defence for a person charged with this offence if they show; They believed the person to whom the corrosive product was sold to be aged 18 or over and Had taken reasonable steps to establish the purchaser’s age or that no reasonable person could have suspected from the purchaser’s appearance that the purchaser was under the age of 18. Reasonable steps are that the seller was shown the following documents; 13 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 7.1 Offensive Weapons Part 1 Passport Photo Card Driving Licence or any other such documents that Scottish Ministers may prescribe by order and the document would have convinced a reasonable person. Note; The Act exempts any form of battery from the sales and delivery provisions given the wide uses of batteries in everyday items and the volume of batteries which are in everyday use. The substance or product has to be contained within a battery. This does not exempt battery acid itself from the sales and delivery provisions nor acid filler bottles. Section 3 – Remote Sales – Delivery of Corrosive Products to Residential Premises This section relates to a seller; selling a corrosive product to a buyer, and the seller and the buyer are not in each other’s presence at the time of the sale. Section 3 of the Act creates an offence for a seller to; For the purposes of supplying the corrosive product to the buyer, deliver the product or arranges for its delivery to residential premises. 14 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 7.1 Offensive Weapons Part 1 For the purposes of supplying the corrosive product to the buyer, the seller delivers the product or arranges for its delivery to a locker. Note – Section 3 has been created specifically to cover the delivery of corrosive products Statutory Defence It is a defence for a person charged with this offence (Section 3) to show they took all reasonable precautions and exercised all due diligence to avoid the commission of the offence Remote Sale to Person under 18 Section 4 of the Act, creates an offence to sell a corrosive product remotely and deliver that item to the hands of a person who is under the age of 18. This creates an offence in relation to the deliverer. This section only applies where the seller is out with the United Kingdom. This offence is intended to reduce the risk that under 18’s seek to buy corrosive products from overseas sellers in attempt to circumvent the law which applies to UK based sellers (Section 1) Statutory Defence for Remote Sale to Person under 18 It is a statutory defence the person who has delivered a corrosive product to the hands of a person under the age of 18 where they; Believed the person into who’s hands the corrosive product was delivered to be aged 18 or over and; They had taken reasonable steps to establish the person’s age and that no reasonable person could have suspected from the person’s appearance that the person was under 18 years 15 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 7.1 Offensive Weapons Part 1 Definition of a ‘Remote Sale’ Section 2 of the Act defines a remote sale as being where the seller or the seller’s representative was not in the presence of the buyer, and includes sales which are: Made online Via telephone By post 16 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 7.1 Offensive Weapons Part 1 Appendix A 1. 2. 3. 4. 5. 6. 17 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 7.1 Offensive Weapons Part 1 For further information, use the resources shown below:- Legal Database:- Criminal Law - Offensive Weapons Review: You can explain the legislation in relation to offensive weapons You can define the term ‘offensive weapon’ and explain the different categories of offensive weapons You can detail your powers to search persons you suspect of possessing an offensive weapon in a public place You can explain the offence of obstructing a search or concealing an item during a search 18 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 7.1 Offensive Weapons Part 1 Learning Log: How will what you have learned in this module impact your day-to- day role? Are there any skills or knowledge you would like to develop further following this module? End of Module 19 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 7.1 Offensive Weapons Part 1 20 Scots Criminal Law: Introduction and Investigation OFFICIAL