Possession of an Offensive Weapon Flashcards
What is an offensive weapon and what section is contained in?
It is contained in S1 of The Prevention of Crime Act 1953, An offensive weapon can be anything either made or used as a weapon but excludes firearms.
Mens rea of possession of an offensive weapon
A person must know that they have a weapon with them to be guilty of an offence
Aside from knowledge what else needs to be present to make out the offence
To have the weapon in a public place.
Whether a particular location is a public place it is a matter for the court to decide but they will be guided s1(4)4 of the Prevention of Crime Act 1953
This act outlines that a public place is anywhere where the public have access to, whether or not they have to pay a fee. A public place can clearly therefore include private property.
Knox v Anderson 1982
Williams v DPP 1992
Knox- a landing on a block of flats, where access was gained simply by walking up the stairs with no barriers to progress, was a public place.
Williams- A landing of a block of flats which could only be accessed by use of a key or intercom was not a public place.
What are the three different categories of offensive weapon and why are they important to establish
- Weapons made to cause injury
- Weapons adapted to cause injury
- Those used with an intention to cause injury
It is important for a police station representative to determine which category is alleged as it will affect the defences that may be available to a client and the elements that the prosecution will have to prove.
What are weapons made to cause injury called and examples of what they are
offensive per se.
There is no comprehensive list but based on past judgements, butterfly knives, flick knives, police truncheons, rice flails and sword sticks are all offensive per se.
More can be found on the Offensive Weapons Order 1988 which are more likely to be treated as being offensive weapon per se
If the defendant is in possession of a weapon which is offensive per se
The prosecution will need not need to prove any intention on the behalf of the defendant, the fact they posses weapon will be sufficient to establish guilt
If a weapon is adapted to cause injury by the defendant?
The prosecution do not need to prove intention to cause injury, they only have to prove simple possession.
It Is not a requirement that the defendant is the person who adapted the item.
If the defendant has an item which he intends to use to cause injury, what do the prosecution have to prove?
The requirement is that the defendant had the item with an intention to cause injury, being reckless would not be sufficient Bryne 2004
If there is a conditional intent i.e they had no intention to use it unless they met a particular person then this would be sufficent.
The way the item was used may well be a key piece of evidence as to what the intention was.
Defences
Lawful Authority or Reasonable Excuse.
Lawful authority covers those who are permitted by legislation to carry items such as soldiers weapons or police officers truncheons.
It does not cover people in similar activities, so private security guards have no right to carry a weapon.
A person must know that they have a weapon with them, so if they were carrying it unknowingly then no offence is committed R v McCall 1988.
However this does not provide a defence to a person who has forgotten that they had the weapon. If someone knew at one stage that they had the weapon with them then this would still amount to the commission of the offence.
It is for the prosecution to prove knowledge.
Defences of reasonable excuse
The defendant needs to establish the excuse and so will need to introduce some evidence.
Forgetfulness is not an excuse.
Carrying a weapon for self defence to protect against some unspecified future danger will not amount to a reasonable excuse.
If there was an imminent threat of attack to a specified individual then they may be justified in carrying a weapon to defend themselves,
Defence for offensive per se
Having a reasonable excuse is the only defence to possessing an offence weapon where the is offensive per se (assuming that the prosecution prove the defendant had it with him in a public place).
Sentencing
Crown Court 4 years
Magistrates 6 months ( 12 months)
