Offensive weapon

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An offensive weapon is a tool made, adapted or intended for the purpose of inflicting mental or physical injury upon another person.

Legality[edit]

UK[edit]

England/Wales[edit]

Under England/Wales' Prevention of Crime Act 1953, Section 1(1) states it is an offence to carry an offensive weapon on or about the person while in a public place without a lawful authority or reasonable excuse. Prohibited weapons may include a knuckleduster, baton, hammer or knife.

Both subsection 4 of this section and the Court of Appeals decision R v Simpson (1983) consider essentially three types of offensive weapon:

  1. An offensive weapon as such, i.e. one that is made for causing injury to the person
  2. those adapted for such a purpose, e.g. a baseball bat with a nail embedded in it
  3. items not made or adapted, but merely intended to be used as an offensive weapon even if they have some other legitimate use e.g. car keys held between the knuckles or a cup of bleach which is intended to be thrown in someone's face

The legislation further defines a "public place" under subsection 4:

"In this section, “public place” is taken to include any highway and any other premises or place to which at the material time the public have or are permitted to have access, whether on payment or otherwise. This is mirrored through R v Kane (1965).[1] For example, any private property e.g. a person's home, the area behind the sales counter of a petrol station, a fenced off building site or an office building would be not considered a public place because the public obviously do not have lawful access to such areas. This is because the Prevention of Crime Act 1953 only prohibits offensive weapons in a public place.[2][3][4][5]

A Constable may arrest without warrant any person whom he has reasonable cause to believe to be committing an offence under subsection (1) of section 1, if the Constable is not satisfied as to that person’s identity or place of residence, or has reasonable cause to believe that it is necessary to arrest him in order to prevent the commission by him of any other offence in the course of committing which an offensive weapon might be used.[6]

List of offensive weapons[edit]

Section 141 of the Criminal Justice Act 1988 essentially provides a 100 percent countrywide ban on the possession of many named offensive weapons which are made as such, even on private premises:[7]

"Any person who manufactures, sells or hires or offers for sale or hire, exposes or has in his possession for the purpose of sale or hire, or lends or gives to any other person, a weapon to which this section applies shall be guilty of an offence"

The items this Section 141 relate to are listed under Schedule 1 of the Criminal Justice Act 1988 (Offensive Weapons) Order 1988.[8] Exemptions are provided for weapons over 100 years old from the time of the offence, but the list as it currently stands is:

  • (a)a knuckleduster, that is, a band of metal or other hard material worn on one or more fingers, and designed to cause injury, and any weapon incorporating a knuckleduster;
  • (b)a swordstick, that is, a hollow walking-stick or cane containing a blade which may be used as a sword;
  • (c)the weapon sometimes known as a “handclaw”, being a band of metal or other hard material from which a number of sharp spikes protrude, and worn around the hand;
  • (d)the weapon sometimes known as a “belt buckle knife”, being a buckle which incorporates or conceals a knife;
  • (e)the weapon sometimes known as a “push dagger”, being a knife the handle of which fits within a clenched fist and the blade of which protrudes from between two fingers;
  • (f)the weapon sometimes known as a “hollow kubotan”, being a cylindrical container containing a number of sharp spikes;
  • (g)the weapon sometimes known as a “footclaw”, being a bar of metal or other hard material from which a number of sharp spikes protrude, and worn strapped to the foot;
  • (h)the weapon sometimes known as a “shuriken”, “shaken” or “death star”, being a hard non-flexible plate having three or more sharp radiating points and designed to be thrown;
  • (i)the weapon sometimes known as a “balisong” or “butterfly knife”, being a blade enclosed by its handle, which is designed to split down the middle, without the operation of a spring or other mechanical means, to reveal the blade;
  • (j)the weapon sometimes known as a “telescopic truncheon”, being a truncheon which extends automatically by hand pressure applied to a button, spring or other device in or attached to its handle;
  • (k)the weapon sometimes known as a “blowpipe” or “blow gun”, being a hollow tube out of which hard pellets or darts are shot by the use of breath;
  • (l)the weapon sometimes known as a “kusari gama”, being a length of rope, cord, wire or chain fastened at one end to a sickle;
  • (m)the weapon sometimes known as a “kyoketsu shoge”, being a length of rope, cord, wire or chain fastened at one end to a hooked knife;
  • (n)the weapon sometimes known as a “manrikigusari” or “kusari”, being a length of rope, cord, wire or chain fastened at each end to a hard weight or hand grip;
  • (o)a disguised knife that is any knife which has a concealed blade or concealed sharp point and is designed to appear to be an everyday object of a kind commonly carried on the person or in a handbag, briefcase, or other hand luggage (such as a comb, brush, writing instrument, cigarette lighter, key, lipstick or telephone).” (concealed knife)
  • (p)a stealth knife, that is a knife or spike, which has a blade, or sharp point, made from a material that is not readily detectable by apparatus used for detecting metal and which is not designed for domestic use or for use in the processing, preparation or consumption of food or as a toy;
  • (q)a straight, side-handled or friction-lock truncheon (sometimes known as a baton).”
  • (r)a sword with a curved blade of 50 centimetres or over in length; and for the purposes of this sub-paragraph, the length of the blade shall be the straight line distance from the top of the handle to the tip of the blade.”
  • (s)the weapon sometimes known as a “zombie knife”, “zombie killer knife” or “zombie slayer knife”, being a blade with (i) a cutting edge; (ii) a serrated edge; and (iii) images or words (whether on the blade or handle) that suggest that it is to be used for the purpose of violence.”

Although this list doesn't specifically prohibit the possession of these items per se, it would be hard to justify the lawful acquisition of the item to the Police/courts in the first place.

N.B. Items covered under the Firearms Act 1968 and crossbows are exempt from being added to this section as per subsection 2.

The most recent amendment to the Criminal Justice Act 1988 (Offensive Weapons) Order further introduced a ban on the zombie knife in 2016.

The same wording and general countrywide prohibition is applied to switchblades, gravity knives and flick knives under Section 1 of the Restriction of Offensive Weapons Act 1959:[9]

"...any knife which has a blade which opens automatically by hand pressure applied to a button, spring or other device in or attached to the handle of the knife, sometimes known as a “flick knife” or “flick gun”; or (b) any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force and which, when released, is locked in place by means of a button, spring, lever, or other device, sometimes known as a “gravity knife”.

It should be noted that assisted opening knives although very similar in appearance to the above switchblade in definition, are not yet illegal to buy, sell, own or transfer because the knife is not opened through anything in or attached to the handle.

Section 139 of the Criminal Justice Act 1988 also creates an offence of having a pointed or bladed article in a public place without good reason or lawful authority.[10] Certain exemptions exist, namely if the knife is a pocket knife that does not lock in place and if the cutting edge (not blade) is under 3 inches. It is also a recognised defence for a person charged under this section to prove that he had the article with him for use at work, for religious reasons or as part of any national costume.

Reasonable excuse/defences[edit]

Despite the carrying of an offensive weapon in a public place being a criminal offence, suspected offenders are given the ability to raise a defence on the civil burden of proof i.e. on the balance of probabilities. This defence is that the offender, on the balance of probabilities, had lawful authority or reasonable excuse for having the weapon in public.[11]

An offensive weapon obtained, possessed or used immediately preceding an imminent attack or during attack in a public place may well be considered reasonable excuse. This could be either an item made as an offensive weapon, adapted or an every day item that was not intended originally to be carried as an offensive weapon (e.g. golf clubs), but during an imminent attack they rightfully became a "weapon of opportunity".[12] This was clarified in Evans v Hughes [1972] QBD[13] where the justices held that it was not relevant in the case "for the defence of reasonable excuse to be successful there had to be an imminent particular threat, not the constant carriage of an offensive weapon on account of some enduring threat or danger".

It should be noted that the offence of carrying an offensive weapon in a public place does not refer to something made, adapted or intended to be used on creatures other than humans as the offence wording states in Section 1(4) "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. An example of this would be Bite-Back dog spray.[14]

While concealed or open carry of any weapon is generally prohibited in England/Wales/Scotland, the Prevention of Crime Act 1953 only prohibited this in a public place.[15] Therefore, the carrying of an offensive weapon at home (i.e. private property) or behind the counter of a shop, fenced off building site, access controlled office block, etc. would be perfectly legal as these are not places the public have a lawful right of access[16][17][18]

In relation to the offence of carrying a bladed or pointed article in a public place under Section 139 Criminal Justice Act 1988, as per subsection (4), reasonable excuse would be that the item was a folding (non-locking) pocket knife if the cutting edge does not exceed 3 inches.[19] It should be noted that the cutting edge is different to the blade length. Other reasonable excuses are specifically listed in the defences in subsection (5),[20] which states:

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

For the purposes of sections 139 and 139A of the Criminal Justice Act 1988, the courts have held:[21][22]

  • a butterknife, with no cutting edge and no point is a bladed article; (Booker v DPP169J.P. 368, DG)[23]
  • a screwdriver is not a bladed article; (R v Davis [1998] Crim L.R 564 CA)[24]
  • a ‘lock knife’ does not come into the category of ‘folding pocket knife’ because it is not immediately foldable at all times; (R v Deegan [1998] 2 Cr. App. R. 121 CA)[25]

New Zealand[edit]

In New Zealand, the definition is "anything that can be used to cause injury".[26]

Australia[edit]

In South Australia, "offensive weapon" is defined by the Summary Offences Act 1953 as including "a rifle, gun, pistol, knife, sword, club, bludgeon, truncheon or other offensive or lethal weapon or instrument but does not include a prohibited weapon".[27]

See also[edit]

External links[edit]

References[edit]

  1. ^ http://swarb.co.uk/regina-v-kane-1965/
  2. ^ https://www.legislation.gov.uk/ukpga/Eliz2/1-2/14/section/1
  3. ^ https://www.legislation.gov.uk/ukpga/Eliz2/1-2/14/section/1
  4. ^ https://www.gov.uk/buying-carrying-knives
  5. ^ http://www.afglaw.co.uk/services/criminal/offensive-weapons-charges/
  6. ^ http://www.legislation.gov.uk/ukpga/Eliz2/1-2/14/section/1
  7. ^ https://www.legislation.gov.uk/ukpga/1988/33/section/141
  8. ^ http://www.legislation.gov.uk/uksi/1988/2019/schedule/made UKOpenGovernmentLicence.svg This article contains quotations from this source, which is available under the Open Government Licence v3.0. © Crown copyright.
  9. ^ http://www.legislation.gov.uk/ukpga/Eliz2/7-8/37/section/1
  10. ^ https://www.legislation.gov.uk/ukpga/1988/33/section/139
  11. ^ https://www.cps.gov.uk/legal-guidance/offensive-weapons-knives-bladed-and-pointed-articles
  12. ^ https://www.cps.gov.uk/legal-guidance/offensive-weapons-knives-bladed-and-pointed-articles
  13. ^ https://sixthformlaw.info/02_cases/mod3a/cases_65_gen_def_mistake.htm
  14. ^ https://www.police-supplies.co.uk/dog-deterrent
  15. ^ https://www.legislation.gov.uk/ukpga/Eliz2/1-2/14/section/1
  16. ^ https://www.legislation.gov.uk/ukpga/Eliz2/1-2/14/section/1
  17. ^ https://www.gov.uk/buying-carrying-knives
  18. ^ http://www.afglaw.co.uk/services/criminal/offensive-weapons-charges/
  19. ^ http://www.legislation.gov.uk/ukpga/1988/33/section/139
  20. ^ http://www.legislation.gov.uk/ukpga/1988/33/section/139
  21. ^ https://www.cps.gov.uk/legal-guidance/offensive-weapons-knives-bladed-and-pointed-articles
  22. ^ https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/186911/Knives_and_offensive_weapons_information_GDS_FAQ.pdf
  23. ^ https://www.telegraph.co.uk/news/uknews/1487762/Butter-knife-an-offensive-weapon.html
  24. ^ http://swarb.co.uk/regina-v-davies-cacd-1998/
  25. ^ https://www.independent.co.uk/news/obituaries/law-report-6-february-1998-lockable-folding-pocket-knife-is-a-bladed-article-1143125.html
  26. ^ http://www.police.govt.nz/faq/what-is-the-definition-of-an-offensive-weapon
  27. ^ "Archived copy" (PDF). Archived from the original (PDF) on 2016-08-18. Retrieved 2016-07-26.