04-07.2 Offensive Weapons Part 2_624a06c4b6c1ad13fcd5f5a6e8922494.pdf

OFFICIAL Unit 4 Lesson 7.2...

OFFICIAL Unit 4 Lesson 7.2 Offensive Weapons - Part 2 Learning Aim: Explain legislative considerations in relation to persons possessing offensive weapons or bladed articles Learning Outcomes: On successful completion of the lesson, Introduction students will be able to:- The use of knives in the commission of violent offences has long blighted our communities. 1. Explain the legislation in relation to bladed The use of a knife in the commission of articles murder, attempted murder and serious assault is, sadly, not uncommon in Scotland. 2. Explain the terms “public place”, “bladed Scotland has adopted a public health article” and “sharply pointed article” approach to tackling this type of violence, including prevention activity such as early intervention, coupled with appropriate law 3. Explain the statutory defences in relation to enforcement where necessary. offensive weapons The main legislation referred to in this note is the Criminal Law (Consolidation) (Scotland) Act 1995. 4. Detail your powers to search persons you suspect of possessing a sharply pointed or bladed article in a public place 5. State the offence relating to obstruction and concealment 6. Explain the provisions relating to possession of sharply pointed or bladed articles on school premises and the associated police powers 1 th Amended 25 April 2024 v.6 OFFICIAL  OFFICIAL Unit 4 Lesson 7.2 Offensive Weapons Part 2 Legislation Offence Section 49(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 creates an offence:- any person who has a bladed or sharply pointed article in a public place shall be guilty of an offence. Public Place As with Section 47, a 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. Bladed Article This is simply any article having a blade, e.g. a knife, cleaver, machete, sword, etc. A folding pocket knife with a blade, the cutting edge of which does not exceed 3 inches (7.62 cm), is exempt. However, a court has decided that if such a knife, although capable of being folded into its handle, locks in the open position, it is not a ‘folding pocket knife’ and therefore is not exempt. 2 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 7.2 Offensive Weapons Part 2 Sharply Pointed Article Again, this is a very general term, but is intended to cover such things as syringe needles or darts. Defences for Section 49 It is a competent defence for a person charged with the offence to show that they had a reasonable excuse or lawful authority for their possession of the article. Also, in this Section it is a specific defence to show that the article was carried:- for use at work, or for religious reasons, or as part of a national costume. Power of Search Section 50(1) provides you your power to search under this Section and is similar to that in Section 48 which relates to offensive weapons. Where a Constable has reasonable cause to suspect that a person has committed or is committing an offence under Section 49 (unlawful possession of a bladed or sharply pointed article 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 49 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 50(2) obligates you to inform them of the reason for their detention. Section 50(1) does not give the Police power to stop and search vehicles. 3 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 7.2 Offensive Weapons Part 2 Key Information KI Court decisions that have been made in respect of offensive weapons under sections 47 and 49 about where you may carry out a search and searching groups are likely to be equally applicable to this section. Police Powers A Section 49 offence is punishable by imprisonment and arrest under Section 1 of the Criminal Justice (Scotland) Act 2016 should be considered Example Charge EC “On 18th August 2020 at Main Street, Brookbank, a public place, you STEVEN EDWARDS did, without reasonable excuse or lawful authority, have with you, an article with a blade or sharply pointed, namely a knife, contrary to Section 49 of the Criminal Law Consolidation (Scotland) Act 1995” Obstructing a Search Anyone who:- a. intentionally obstructs a Constable when exercising their powers of search, or b. conceals any article to which Section 49 of the Act applies; commits an offence under Section 50(4) of the Act. 4 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 7.2 Offensive Weapons Part 2 Note:- the ways in which someone might obstruct you should not be difficult to imagine. 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. Offensive Weapons or Bladed and Sharply Pointed Articles in Schools Section 49A was added to the legislation to make the specific case for school premises. Legislation It is an offence for any person to have with them on school premises an article with a blade or sharp point as defined in an offensive weapon as Section 49 defined in Section 47 Section 49A(1) Section 49A(2) 5 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 7.2 Offensive Weapons Part 2 What are ‘School Premises’? This term includes any land used for the purposes of a school, but excludes land occupied solely as a dwelling by a person employed at the school. Defences for Section 49A There is a defence to show that the person charged possessed the item with a general reasonable excuse or lawful authority or specifically the person had the item:- for educational purposes for use at work for religious reasons, or as part of any national costume. Searching on School Premises Section 49B In the case of section 49A, you may enter school premises, by reasonable force if necessary, and search the premises and any persons found on the premises for knives and offensive weapons. Again, you must have reasonable grounds for suspecting that an offence under section 49A is being or has been committed to use this power. You can seize any relevant articles or weapons you find. Guidance As you can appreciate, there are many similarities to these offences and Appendix A summarises this information in the tables provided. 6 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 7.2 Offensive Weapons Part 2 Other Relevant Offences Section 1, Restriction of Offensive Weapons Act 1959 As you can see, this is an older piece of legislation. However it has been subject to amendment most recently in March 2023. This legislation creates an offence to possess a flick or gravity knife in any public AND private place (domestic premises). It is also an offence for any person to import, manufacture, gift, loan, sell or offer to sell any flick knife or gravity knife. To assist with this remembering these elements, the below mnemonic may be used:- Loan Offer to sell or Hire Gift Import Sell or Hire Manufacture Defences for Section 1 Restriction of Offensive Weapons Act 1959 There would be a defence if the subject could show:- Possession was for the purpose of making the knife available to a museum or gallery. The person possessed it in their capacity as the operator of, or as a person acting on behalf of, a museum or gallery. 7 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 7.2 Offensive Weapons Part 2 Section 141, Criminal Justice Act 1988 This offence is similar except that it refers to certain types of martial arts weapons and certain types of knives. The more common weapons covered are:- Belt buckle knife Push dagger Butterfly knife Sword stick Knuckle-duster Hand claw Foot claw Death star Disguised knife Friction lock baton Zombie knife Cyclone knife Note:- A disguised knife is described as any knife which has a concealed blade or a concealed sharp point, and is designed to be an everyday object. For example, a comb, brush, writing implement, cigarette lighter or even a lipstick. It creates the offence to possess a weapon to which this section applies in a private place. It is also an offence to import, manufacture, gift, loan, sell or offer to sell any of the weapons or knives to which this section applies. Private place A private place has been defined as a Domestic Premises. A Domestic premises means premises occupied as a private dwelling (including 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) 8 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 7.2 Offensive Weapons Part 2 Defences for Section 141 There is a defence to show that the person charged possessed the item:- in their capacity as the operator of, or as a person acting on behalf of, a museum or gallery; for educational purposes only; for the purpose of theatrical performances / production of films / TV programmes or making it available for those purposes; For functions on behalf of the crown or visiting force (e.g. police officer possessing a baton in connection with their role); Antique weapons (over 100 years old) are exempt from section 141 of the Criminal Justice 1988 Act. The weapon is of historical importance. Section 141A(1) of the Criminal Justice Act 1988 Provides that any person who sells or lets on hire to a person under the age of 18 years of age a knife, knife blade, razor blade, axe or any article which is made or adapted for use for causing personal injury shall be guilty of an offence. In the case of a knife or blade for domestic use the age limit is reduced so that they may be legally sold or hired to a person aged 16 or 17 years. Power of search Under Section 142(1) of the Criminal Justice Act 1988 the police can obtain a warrant to enter and search premises where there are reasonable grounds for believing that weapons to which either:- Section 1 of the Restriction of Offensive Weapons Act 1959 or Section 141 of the Criminal Justice Act 1988, can be found and an offence under either Act has been or is being committed. 9 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 7.2 Offensive Weapons Part 2 Appendix A Criminal Law (Consolidation) (Scotland) Act 1995 Any person who: has with him in any public place Section 47 any offensive weapon commits an offence Lawful Authority ie: Police officer with baton Soldier with bayonet Section 47 Defence Reasonable Excuse ie: Taking a found article to the police station Article used in their employment Power (in relation to Section 47 offence) to: search a person, without warrant, and Section 48(1) Search detain them for such time as is reasonably necessary for the search provided that they inform the person of the reason for their detention Anyone who: intentionally obstructs a Constable when exercising his or her powers of Section 48(2) search or actively conceals an offensive weapon from a Constable at the time of such a search commits an offence Any person who: has with him in any public place Section 49(1) any bladed or sharply pointed article commits an offence Reasonable excuse or lawful authority Specific Defence also include showing that Section 49 Defence the article was carried:- for use at work, or for religious reasons, or as part of a national costume 10 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 7.2 Offensive Weapons Part 2 Section 50(1) Power (in relation to Section 49 offence) to: search a 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 Section 50(2) Obligation on Constable to inform subject of the reason for detention Section 50(4) Anyone who: intentionally obstructs a Constable when exercising their powers of search, or conceals any article to which Section 49 of the Act applies; Commits an offence under Section 50(4) of the Act. It is an offence for any person: to have with them Section 49A on school premises an article with a bladed or sharply pointed article ▪ an offensive weapon Lawful Authority Reasonable Excuse Section 49A Defence Specific Defences: for educational purposes for use at work for religious reasons as part of a national costume Re: 49A Power to enter school premises, by Section 49B Search reasonable force if necessary, and search the premises and any person found on the premises for knives and offensive weapons. You can seize any relevant articles or weapons found 11 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 7.2 Offensive Weapons Part 2 Restriction of Offensive Weapons Act 1959 It an offence to have in any public and private place (domestic Premises) Section 1 An offence in relation to flick or gravity knife to: import, manufacture, gift, loan, sell or offer to sell. Section 1 Defence Making available - museum or gallery The possessor was operator of/or behalf of a museum or gallery Criminal Justice Act 1988 Section 141 Offence to possess certain martial arts weapons in a private place Offence to import, manufacture, gift, loan, sell or offer to sell. Section 141 Defence Possession was: Museum or gallery Educational purposes Theatre/films/TV Programmes Crown or other visiting Force Antique weapons Historical importance Section 141A(1) Seller guilty of an offence if selling to anyone under 18 years of age. However if it is a knife or blade for domestic use age limit reduced so 16/17 years old could by a set of knives for their house etc. Section 142(1) Police can obtain a warrant to enter and search premises in relation to:- Section 1 of the Restriction of Offensive Weapons Act 1959 Section 141 Criminal Justice Act 1988 Offensive Weapons Act 2019 Section 6 Offence to have a corrosive substance in a public place. Reasonable excuse Section 6 Defence Lawful Authority Use at Work 12 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 7.2 Offensive Weapons Part 2 Search without warrant Detain for as long as necessary Section 11 Search Must inform reason for search Can seize and retain any substance and article that contains it. Anyone who intentionally obstructs a Constable when exercising their Obstruction powers of search, or Conceals any article to which Section 6 of the Act applies. Section 1 Selling to under 18 Also includes remote sales. If they can show: Section 2 Defence They believed they were over 18 AND Had taken reasonable steps to check age Creates an offence for a seller to deliver a Section 3 Remote corrosive substance or arranges delivery to Sales a residential premises a locker Section 3 Defence Took all reasonable steps to avoid the offence happening. Offence to sell and deliver to anyone under the age of 18. Section 4 Deliverer is the offender Only applies to sellers out with UK If they can show Section 4 Defence Believed they were over 18 AND Taken all reasonable steps to establish persons age AND no reasonable person would suspect from their appearance that they were under 18. 13 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 7.2 Offensive Weapons Part 2 Section 50(1) Power (in relation to Section 49 offence) to: search a 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 Section 50(2) Obligation on Constable to inform subject of the reason for detention Section 50(4) Anyone who: intentionally obstructs a Constable when exercising their powers of search, or conceals any article to which Section 49 of the Act applies; commits an offence under Section 50(4) of the Act. It is an offence for any person: to have with them Section 49A on school premises an article with a bladed or sharply pointed article ▪ an offensive weapon Lawful Authority Reasonable Excuse Section 49A Defence Specific Defences: for educational purposes for use at work for religious reasons as part of a national costume Re: 49A Power to enter school premises, by reasonable Section 49B Search force if necessary, and search the premises and any person found on the premises for knives and offensive weapons. You can seize any relevant articles or weapons found. 14 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 7.2 Offensive Weapons Part 2 For further information, use the resources shown below:- Legal Database:- Criminal Law - Offensive Weapons Review: You can explain the legislation in relation to bladed articles You can explain the terms “public place”, “bladed article” and “sharply pointed article” You can explain the statutory defences in relation to offence weapons You can detail your powers to search persons you suspect of possessing a sharply pointed or bladed article in a public place You can state the offence relating to obstruction and concealment You can explain the provisions relating to possession of sharply pointed or bladed articles on school premises and the associated police powers 15 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 7.2 Offensive Weapons Part 2 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 16 Scots Criminal Law: Introduction and Investigation OFFICIAL