On the 5th July 2021, the Knife Crime Prevention Order provisions of the Offensive Weapons Act 2019 came into force in specific areas for a period of 14 months. The area in question is the “metropolitan police district”, which consists of Greater London, excluding the City of London, the Inner Temple and the Middle Temple.
The sections allow the making of a knife crime prevention order other than on conviction. Three conditions must be met:
- an application has been made in accordance with section 15;
- the court is satisfied that on at least two occasions, the defendant had a bladed article with them without good reason or lawful authority in a public place or school or further education premises;
- the court must think it is necessary to make the order to protect the public from the risk of harm involving a bladed article, to protect any particular members of the public or to prevent the defendant from committing an offence involving a bladed article.
Section 15 sets out the requirements for the order. The application can be made by the police for the area where the defendant lives or is intending to go. When the application is made for a person under the age of 18, the youth offending team must be consulted.
Orders upon conviction
A knife crime prevention order can also be made upon conviction under section 19. This section applies when a person over the age of 12 is convicted of an offence, and the court dealing with him is satisfied the offence is a relevant offence. The same three conditions apply when an application is made for an order without conviction, other than an application made by the prosecution rather than under section 15. Additionally, an order can only be made if it is on top of a sentence imposed for an offence or a conditional discharge. A relevant offence is one which involves violence, a bladed article was used by the defendant, or another, in the commission of the offence, or the defendant or another person who committed the offence was in possession of a bladed article at the time.
Section 20 requires the prosecution to consult the youth offending team before making an application under section 19, where the offender is under the age of 18.
An order may be reviewed periodically, the defendant having to attend court for it to take place. If the order is longer than a year, it has to be reviewed. Where the order is less than a year, it must be reviewed within the last four weeks. At the review, consideration will be given to whether the order should be varied or discharged.
An order can be varied by imposing additional prohibitions or requirements. A variation can only occur if it is necessary to protect the public (or any particular members of the public) from the risk of harm or prevent the defendant from committing an offence involving a bladed article.
Appeal against an order
It is possible to appeal against the making of an order to the Crown Court. A person who applies for an order under section 14 (otherwise than on conviction) may appeal to the Crown Court against a refusal to make the order. An appeal can also be made against a refusal to vary, renew or discharge the order.
Breach of an order can lead to imprisonment of up to two years. As well as prohibitions, the orders can impose positive requirements such as attendance on drug rehabilitation programmes, educational courses and relationship counselling. The intent is for the order to be preventative rather than a punishment, hence the positive requirements. Attention should be paid, therefore, to tailoring the requirements to the needs of the individual.
Terms of the order
Examples of prohibitions could be non-association with named individuals, exclusion zones, and non-participation in specified activities. Care must be taken to ensure that prohibitions or requirements do not conflict with a defendant’s religious beliefs or work/educational commitments.
Orders last for a minimum of six months to a maximum of two years.
This pilot of the orders runs across London for 14 months; the government has already stated its intention to roll out the orders across England and Wales once the pilot has ended.
How can we help?
We are specialists in knife crime law. If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email email@example.com. Let us help.
[Image credit: “Black Widow kit knife” by CapCase is licensed under CC BY 2.0 ] Read More
Knife crime is very much on the political agenda, with a number of stabbings having taken place over the last few weeks, resulting in deaths and injury, and no doubt the loss of liberty in due course for those responsible. Attention is now focussed on using deterrent sentences to discourage knife possession.
The Sentencing Council, which is responsible for setting sentencing guidelines in England and Wales, has today issued a new guideline for knife crime offences.
What offences does it cover?
The guideline applies to offences of:
- Possession of an offensive weapon in a public place
- Possession of an article with a blade/ point in a public place
- Possession of an offensive weapon on school premises
- Possession of an article with a blade/ point on school premises
- Unauthorised possession in prison of a knife or offensive weapon (adult guideline only)
- Threatening with an offensive weapon in a public place
- Threatening with an article with a blade/ point in a public place
- Threatening with an article with a blade/ point on school premises
- Threatening with an offensive weapon on school premises
The guideline does not cover situations where a knife or other weapon is actually used to harm someone. This would come under other offences such as assault or murder/manslaughter. Similarly, it does not include the use or possession of firearms which is covered by different legislation.
Does the guideline apply to all offenders?
The new guideline applies both to adults and those under 18. In relation to the latter, the guideline will work alongside the Sentencing Children and Young People guideline and encourage courts to look in far greater detail at the age/ maturity, background and circumstances of each offender in order to reach the most appropriate sentence that will best achieve the aim of preventing reoffending, which is the main function of the youth justice system.
What will be the effect of the new guidance?
Leading Court of Appeal judgments have emphasised the seriousness of this type of offending and have set out sentence levels that senior judges see as appropriate for dealing with offenders.
The proposed guideline takes these changes to the law and court judgments into account in consolidated, up to date guidance. It ensures that those offenders convicted of offences involving knives or particularly dangerous weapons, as well as those who repeatedly offend, will receive the highest sentences. The introduction of the guideline may, therefore, lead to some increases in sentence levels, predominantly in relation to adults convicted of possession offences.
Are there any minimum sentences for these offences?
The law on mandatory sentences for offences involving bladed articles or offensive weapons states:
- Where an offender is convicted of a second (or further) bladed article/ offensive weapon offence the court must impose a mandatory minimum sentence of 6 months’ imprisonment for an adult or 4 months’ Detention and Training Order for a youth (under 18), unless satisfied that there are circumstances relating to the offence or the offender that make it unjust to do so in all of the circumstances.
- Where an offender is convicted of threatening with a bladed article/ offensive weapon the court must impose a mandatory minimum sentence of 6 months’ imprisonment for an adult or 4 months’ Detention and Training Order for a youth (under 18), unless satisfied that there are circumstances relating to the offence or the offender that make it unjust to do so in all of the circumstances.
As the guideline gives the highest sentences to those offenders who threaten with knives or highly dangerous weapons, these offenders will always receive sentences greater than six months. The combination of the legislation and the guideline may therefore mean that there is an increase in sentences received by some offenders convicted of these offences.
Where the seriousness of the combined offences is such that it falls far below the custody threshold, or where there has been a significant period of time between the offences, the court may consider it unjust to impose the statutory minimum sentence.
The court should consider the following factors to determine whether it would be unjust to impose the statutory minimum sentence:
- Strong personal mitigation
- Whether there is a strong prospect of rehabilitation
- Whether custody will result in significant impact on others
What about ‘highly dangerous weapons’?
Additional guidance has been included as to what constitutes a highly dangerous weapon.
This has been set out as follows:
“An offensive weapon is defined in legislation as ‘any article made or adapted for use for causing injury or is intended by the person having it with him for such use”.
A highly dangerous weapon is, therefore, a weapon, including a corrosive substance (such as acid), whose dangerous nature must be substantially above and beyond this. The court must determine whether the weapon is highly dangerous on the facts and circumstances of the case.
How we can assist
Sentencing is a complex process and all of our advocates understand how to navigate sentencing guidelines and ensure that they are not applied in a mechanistic manner, instead ensuring the court focusses on all relevant considerations.
For help with any criminal law related matter please contact John Howey, on 020 7388 1658 or firstname.lastname@example.orgRead More