Offensive Weapons Flashcards
Which extract of legislation covers Having Offensive Weapon in a Public Place?
Prevention of Crime Act 1953 Section 1(1)
How is Having Offensive Weapon in Public Place triable?
Triable either way, in Crown or Magistrates
What is the penalty for Having Offensive Weapon in Public Place on indictment?
4 years’ imprisonment and/or fine on indictment
What is the penalty for Having Offensive Weapon in Public Place summarily?
Six months’ imprisonment and/or fine summarily
What is the definition of Having Offensive Weapon in Public Place?
(1) Any person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon shall be guilty of an offence
What is the definition of “lawful authority” in respect of having offensive weapons in public place?
Lawful authority allows people to have an offensive weapon in a public place where they are required to carry them as a matter of duty i.e. police/armed forces reps
Are security guards carrying a truncheon or other offensive weapon included as a “lawful authority” regarding having offensive weapon in public place?
No - security guards are NOT a lawful authority even if their contracts require them to carry an offensive weapon
Can anybody besides police officers/armed forces rep have “lawful authority” to have an offensive weapon in a public place?
Yes - but only in rare cases
How is “reasonable excuse” defined in respect of having offensive weapons in a public place?
It is not definitively defined - the courts have a wide degree of discretion in what constitutes “a reasonable excuse”
Who decides what constitutes a “reasonable excuse”?
The courts
Does a person have tools with them in the course of their trade constitute a reasonable excuse?
Yes - in many circumstances so long as they did not intend to use them in the course of any offence
Would a person passing the scene of a recent disturbance and picking up the offensive weapon/putting it in their car to take to the nearest police station constituent a reasonable excuse?
Yes - so long as they do this immediately and take the item to the nearest available police station
Would somebody having an offensive weapon in a public place which they make use of for a legitimate, non-criminal purpose but, intending to deposit safely, have not had chance to do so constitute a reasonable excuse?
Yes
Would a person having an offensive weapon as part of a fancy dress costume constitute a reasonable excuse?
Yes - in respect of police officer costumes, where they did not intend to use it in the course of any offence
Would the having of an offensive weapon in a public place where the person has good grounds to anticipate an unprovoked/unlawful attack constitute a reasonable excuse?
Yes - in certain specific circumstances i.e. where a person is guarding cash transits
Would the having of an offensive weapon/knife in public as a precaution in case one is attacked constitute a reasonable excuse?
No
Is not being aware one has an offensive weapon on their person in a public place a reasonable excuse?
No - not in itself
Is forgetting that you have an offensive weapon with you/in your car in a public place a reasonable excuse?
No
What is important for the jury to consider when assessing whether the defendant has a reasonable excuse/good reason?
Their state of mind - i.e. whether they were intoxicated, angry etc.
Where does the burden of proof lie with respect to proving reasonable excuse/lawful authority?
With the defendant, so long as the prosecution has established the defendant had an offensive weapon with them at the time
What is the burden of proof for reasonable excuse/lawful authority assessed against?
The balance of probabilities
What is important to remember in respect of the definition for “has with him” and any charge?
The offensive of Having Offensive Weapon in Public Place is concerned with the CARRYING of the offensive weapon, and not with its use - its use can be dealt with by charges for separate offences
Can a workman be charged with Having Offensive Weapon in Public Place if, carrying his tool bag with him in public he decides to strike another with a hammer after a disagreement?
No - the hammer was properly in his possession in public before the assault offence
At what point does having an article innocently in public covert into Having Offensive Weapon in Public Place?
When the intent to use the article offensively is formed BEFORE the actual occasion to use violence has arisen
What is the definition of “public place” in respect of Having Offensive Weapon in Public Place?
Any highway or premises/place which, at the time of the offence, the public have or are permitted access whether on payment or otherwise
What extract of legislation covers Offensive Weapons?
Prevention of Crime Act 1953, section 1(4)
What is the definition of Offensive Weapon?
“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 or by some other person
What are the three categories of Offensive Weapon?
Articles:
1) Made for causing injury (offensive weapons per se)
2) Adapted for causing injury
3) Intended for causing injury
What is an offensive weapon per se?
Any weapon which has been manufactured for use for causing injury (made for causing injury)
Can a flick knife which also has an alternative function i.e. use as a lighter, constitute an offensive weapon made for causing injury?
Yes - its remains an offensive weapon per se despite its alternative function
What is defined as a article adapted for causing injury?
Nothing is specifically defined and almost anything can be included
Who decides whether an article has been adapted?
The court/jury
Can an article which has not been altered in any physical way constitute an article adapted for causing injury?
No - if not altered physically, it has not been adapted
Does an article which has been adapted for self-inflicted injury properly constitute an article adapted for causing injury?
This is unclear though it has been suggested that as the adaptation of the article is the defining feature of “adapted articles for injury”, rather than their intended use, it may be sufficient
What is defined as a article intended for causing injury?
Nothing is specifically defined and almost anything can be included
What must be proven in order for an article to qualify as an article intended for causing injury?
The person’s intention to cause injury must be proved
Will the defendant’s intent to cause shock to another with ab article render it an article intended for causing injury?
Yes
Will the defendant’s intent to scare potential attackers with an article render it an article intended for causing injury?
No - inducing fear with an article is not enough to show it is intended for causing injury.
Must the prosecution prove the defendant had an intention to use an article for causing injury?
No - so long as it has been proven that the article IS an offensive weapon
Which extract of legislation covers Threatening with Offensive Weapon in Public?
Prevention of Crime Act 1953, Section 1A
How is Threatening with Offensive Weapon in Public triable?
Triable either way, in Crown or Magistrates
What is the penalty for Threatening with Offensive Weapon in Public on indictment?
Four years’ imprisonment and/or find on indictment
What is the penalty for Threatening with Offensive Weapon in Public summarily?
Six months’ imprisonment and/or fine summarily
What is definition of Threatening with Offensive Weapon in Public?
a) has an offensive weapon with them in a public place,
b) unlawfully and intentionally threatens another person with the weapon, and
c) does so in such a way that there is an immediate risk of serious physical harm to the other person
What is the practical effect of legislation on Threatening with Offensive Weapon in Public?
To create a offence relating to the aggravated use of an offensive weapon in a public place
What must be the character of the defendant’s use of the weapon for a charge of Threatening with Offensive Weapon in Public?
It must be unlawful
What 3 specific defences are available to a defendant charged with Threatening with Offensive Weapon in Public?
1) Self defence
2) Defence of others/property
3) The prevention of crime
If a defendant makes use of any of the 3 specific defences against a charge of Threatening with Offensive Weapon in Public, where does the burden of proof in rebutting these lie?
The prosecution have the burden of proof to rebut the defences
What is the definition of “serious harm” in respect of Threatening with Offensive Weapon in Public?
Equivalent with GBH
How are “public place” and “offensive weapon” defined in respect of Threatening with Offensive Weapon in Public?
In the same what as Section 1 of the 1953 Act - Having Offensive Weapon in Public Place
What must the Court do in respect of anyone 16+ found guilty of Threatening with Offensive Weapon in Public?
Imposed an appropriate custodial sentence (with or without a fine)
In what circumstance is a Court allowed NOT to imposed a custodial sentence for those 16+ found guilty of Threatening with Offensive Weapon in Public?
When they have the opinion that there are particular circumstances which relate to the offence or offender which would make it unjust to do so in all circumstances
Which extract of legislation covers Having Bladed or Pointed Article in Public Place?
Criminal Justice Act 1988, Section 139 (1)
How is Having Bladed or Pointed Article in Public Place triable?
Either way, in Crown or Magistrates
What is the penalty for Having Bladed or Pointed Article in Public Place on indictment?
4 years’ imprisonment and/or fine
What is the penalty for Having Bladed or Pointed Article in Public Place summarily?
Six months’ imprisonment and/or fine
What is the definition of Having Bladed or Pointed Article in Public Place?
Subject to subsections 4 and 5, any person who has an article to which this section applies with him in a public place
To which articles does Having Bladed or Pointed Article in Public Place apply?
Any sharply pointed article or article having a blade
What is the one notable exception to prohibited articles included within Having Bladed or Pointed Article in Public Place?
Folding pocket knives, so long as the blade does not exceed 3 inches
Are lock-knives included within prohibited articles under Having Bladed or Pointed Article in Public Place?
Yes - lock knives are prohibited regardless of whether the blade is locked open at the time
Who determines whether an article falls within the parameters of Section 139, Having Bladed or Pointed Article in Public Place?
The court
What test is often applied by courts to determine if an article is bladed under Section 139, Having Bladed or Pointed Article in Public Place?
Asking whether the article has a cutting edge
Does the article need to be sharp to constitute a blade under Section 139, Having Bladed or Pointed Article in Public Place?
No - a blade does not need to be sharp or effective to be a bladed article i.e. a blunt butter knife is still bladed
Does the fact that an article might have other innocuous features beyond the pointed/bladed element mean that it will not be deemed a prohibited article under Section 139, Having Bladed or Pointed Article in Public Place?
No - a Swiss army knife still constitutes a pointed/bladed article even if having other innocuous tools
How is “has with him” defined under Section 139, Having Bladed or Pointed Article in Public Place?
In the same way as Section 1(1) Having Offensive Weapon in Public Place is defined
What must the prosecution prove for a legitimate charge of Section 139, Having Bladed or Pointed Article in Public Place?
That the defendant was aware they had the pointed/bladed article with them
Can a legitimate charge of Section 139, Having Bladed or Pointed Article in Public Place be made if the defendant only had the pointed/bladed article with them for a very short time?
Yes - even if only for a short time, this is sufficient for the Actus Reus of the offence
Where does the burden of proof lie to prove the defendant’s good reason/lawful excuse for having a pointed/bladed article with them?
With the defendant
How is “public place” defined under Section 139, Having Bladed or Pointed Article in Public Place?
In the same way as Section 1(1) Having Offensive Weapon in Public Place is defined
Is the front garden of a house included within the definition of “public place” in respect of Section 139, Having Bladed or Pointed Article in Public Place?
No - even if very narrow and therefore capable of being a base from which an offence is launched outside its boundary
Can 16 and 17 year olds be charged with Section 139, Having Bladed or Pointed Article in Public Place?
Yes - so long as these comply with NPCC guidelines and there are not mitigating exceptional circumstances
Which extract of legislation covers defences to offensive weapons charges?
Criminal Justice Act 1988, section 139, points 4 and 5
What is the definition of defences available to those charged with offensive weapons crimes?
(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 subsection (4), it shall be a defence for a person charge with an offence under this section to prove he had the article with him for
(a) use at work;
(b) religious reasons, or
(c) as part of any national costume
What three defences are available to those charged with an offence under Section 139, Having Bladed or Pointed Article in Public Place?
The article is
1) for use at work
2) for religious reasons
3) for part of national costume
How is “public place” defined under Section 139, Having Bladed or Pointed Article in Public Place, points 4 and 5?
In a similar way to “lawful authority” and “reasonable excuse”
Would self-defence qualify as a “good reason” and a defence under Section 139, Having Bladed or Pointed Article in Public Place?
Yes
Would carrying a knife for one’s own protection constitute a “good reason” and a defence under Section 139, Having Bladed or Pointed Article in Public Place?
Yes - so long as it can be shown the person was in fear of imminent attack on the balance of probabilities
Who maintains a duty to prove a defence of lawful authority/good reason in respect Section 139, Having Bladed or Pointed Article in Public Place?
The defendant
Would the defendant forgetting they had a pointed/bladed article with them constitute a defence under Section 139, Having Bladed or Pointed Article in Public Place?
No
Is the requirement for a defendant to prove they had good reason/lawful excuse for carrying a pointed/bladed article an infringement of their human rights?
No - as there is a strong public interest in such articles not being carried in public without good reason
What is the duty of any police officer in respect of a charge of Section 139, Having Bladed or Pointed Article in Public Place?
To gather evidence the defendant had the article with them in a public place
AND to record any explanation given
The court then decides if there is a good reason
Which extract of legislation of covers Threatening with Article with Blade or Offensive Weapon?
Criminal Justice Act 1988, section 139AA
How is Section 139AA, Threatening with Article with Blade or Offensive Weapon triable?
Either way, in Crown or Magistrates
What is the penalty for Section 139AA, Threatening with Article with Blade or Offensive Weapon on indictment?
4 years’ imprisonment and/or fine
What is the penalty for Section 139AA, Threatening with Article with Blade or Offensive Weapon summarily?
6 months’ imprisonment and/or fine
What is the definition of Section 139AA, Threatening with Article with Blade or Offensive Weapon on indictment?
(1) a person is guilty of an offence if
(a) they have an article to which this section applies with them in a public place or on school premises;
(b) unlawfully and intentionally threatens another person with the article, and
(c) does so in a way that there is an immediate risk of serious physical harm to another person
What is the key difference of Section 139AA, Threatening with Article with Blade or Offensive Weapon and Section 1A, Threatening with Offensive Weapon in Public?
Section 139AA ALSO includes threats to others made on SCHOOL PREMISES and includes articles with a blade or point (both on school premises and in a public place)
How is “school” defined under Section 4 of the Education Act 1996?
An institution providing a) primary education b) secondary education c) both primary and secondary education whether or not it also provides further education
Are institutions providing solely higher education contained under the definition of “school” for the purposes of Section 139AA, Threatening with Article with Blade or Offensive Weapon?
No
What is the exception to the definition of “school premises” with respect to Section 139AA, Threatening with Article with Blade or Offensive Weapon?
Land occupied on school premises by a school employee solely as a dwelling
If X is found with a blade in the garden of the school’s live-in caretaker, would they have committed an offence under Section 139AA, Threatening with Article with Blade or Offensive Weapon?
No - land within school premises boundaries and used solely for occupation by a school employee is not itself “school premises”
How is “public place” defined under Section 139, Section 139AA, Threatening with Article with Blade or Offensive Weapon?
In the same way as for Section 139, Having Bladed or Pointed Article in Public Place
What level of injury is included under the definition of “physical harm” in relation to Section 139AA, Threatening with Article with Blade or Offensive Weapon?
Injury amounting to GBH
Which extract of legislation covers Having Bladed or Sharply Pointed Article on School Premises?
Criminal Justice Act 1988, Section 139A(1)
How is Section 139A(1) Having Bladed or Sharply Pointed Article on School Premises triable?
Either way, in Crown or Magistrates
What is the penalty for Having Bladed or Sharply Pointed Article on School Premises on indictment?
4 years’ imprisonment and/or fine
What is the penalty for Having Bladed or Sharply Pointed Article on School Premises summarily?
6 months’ imprisonment and/or fine
What is the definition of Section 139A(1) Having Bladed or Sharply Pointed Article on School Premises?
(1) Any person who has an article to which section 139 of this Act applies with him on school premises shall be guilty
To which articles does Section 139A(1) Having Bladed or Sharply Pointed Article on School Premises apply?
To the same articles covered under Section 139(1), Having Bladed or Pointed Articles in Public Place
Which extract of legislation covers Having Offensive Weapon on School Premises?
Criminal Justice Act 1988, Section 139A(2)
How is Section 139A(2) Having Offensive Weapon on School Premises triable?
Either way, in Crown or Magistrates
What is the penalty for Section 139A(2) Having Offensive Weapon on School Premises on indictment?
4 years’ imprisonment and/or fine
What is the penalty for Section 139A(2) Having Offensive Weapon on School Premises on summarily?
6 months’ imprisonment and/or fine
What is the definition of Section 139A(2) Having Offensive Weapon on School Premises?
(2) Any person who has an offensive weapon within the meaning of section 1 of the Prevention of Crime Act 1953 with him on school premises shall be guilty
To which articles does Section 139A(2) Having Offensive Weapon on School Premises apply?
To the same the categories of articles covered in Section 1 of the act:
Made for injury
Adapted for injury
Intended for injury
What are the 6 key defences available in relation to Section 139A(2) Having Offensive Weapon on School Premises?
1) They had good reason for having the article
2) They have lawful authority for having the article
3) Article is for use at work
4) For religious reasons
5) Forms part of nation dress
6) They have the article for educational purposes
What is the unique defence available for Section 139A(2) Having Offensive Weapon on School Premises?
That the defendant had the article on them on school premises for educational purposes
If the defence is made that an offensive weapon is brought onto school premises for education purposes, with whom does the burden of proof lie for this defence?
With the defendant
Do Police Constables have a power of entry in respect of Section 139A(2) Having Offensive Weapon on School Premises?
Yes - under Section 139B of the Criminal Justice Act 1988
In respect of Section 139A(2) Having Offensive Weapon on School Premises, where can a constable search?
A constable may enter school premises and search those premises or any person on the premises
In respect of Section 139A(2) Having Offensive Weapon on School Premises, what two things can a constable search the premises/any person on the premises for?
1) for any article prohibited under Section 139 (pointed or bladed articles)
2) for any offensive weapon prohibited under Section 1 of 1953 act if he has reasonable grounds to suspect an offence under Section 139A (threatening) has, or is being committed
If a constable finds an article prohibited (pointed/bladed or offensive weapon) in the course of his search on school premises under Section 139A(2), what can he do?
Seize and retain the article
Does Section 139A(2) Having Offensive Weapon on School Premises allow for the use of reasonable force in respect of gaining power of entry to search upon school premises?
Yes - reasonable force can be used as part of this power of entry
Which PACE Code applies to searches under Section 139A(2) Having Offensive Weapon on School Premises?
Pace Code A - Stop Search
Which extract of legislation allows a member of school staff in Wales to search pupils where they have reasonable grounds to suspect they have a prohibited item with them/in possession?
The Education Act 1996, Section 550AA
Who may perform a search on a pupil on school premises where reasonable grounds exists to suspect they have a prohibited item with them/in possession?
(1) The headteacher
(2) A person authorised by the headteacher
What may a headteacher/person authorised search for where reasonable grounds exist to suspect a pupil of having a prohibited item with them/in possession?
1 A bladed/pointed article OR
2 an offensive weapon as previously defined
If an article is found as part of a search of a pupil where reasonable grounds exist to suspect them of having a prohibited item with them/in possession, what can the person performing the search do?
Seize the article
If after a search of a pupil for a prohibited item on school grounds, and article is seized by the person conducting the search, what must then happen?
The person seizing the article should deliver it to a constable as soon as reasonable practicable
