Possession of knives or an offensive weapon is an offence if it is in public and without lawful authority or reasonable excuse. A weapon can be offensive as a matter of course (it is made for use of causing injury), adapted for such a purpose, or not adapted but carried with the intention of causing injury.
One of the key elements of the offence is that the weapon is carried in public, rather than being possessed in private, indoors. That is now not the case in respect of certain weapons.
The weapons that are banned in public by the Criminal Justice Act 1988 are now banned in private. This means that weapons such as zombie knives, shuriken, death stars and knuckle dusters can no longer be kept in your home. The ban also covers cyclone knives, spiral knives and rapid-fire rifles.
A new legal definition now covers flick knives, they have been unlawful since 1959, but now more knives will be covered. The definition is now:
“any knife which has a blade which opens automatically –
(i) from the closed position to the fully opened position, or
(ii) from a partially opened position to the fully opened position,
by manual pressure applied to a button, spring or other device in or attached to the knife, and which is sometimes known as a “flick knife” or “flick gun”; or
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.”
The offence of unlawfully possessing a firearm is covered by section 54 of the Offensive Weapons Act 2019. It includes any rifle with a chamber from which empty cartridge cases are extracted using energy from propellant gas. The offence carries up to ten years imprisonment. The offence of possessing other weapons covered by the new ban carries up to six months imprisonment.
From December 2020 to March 2021, the government ran a scheme to allow the surrender of any of these weapons and claim compensation for them. During that time, 14,965 knives, 1,133 rapid-fire firearms and 32,000 ancillary items were surrendered, with 829 claims for compensation processed.
With this ban coming into force, the government has also issued a reminder about upcoming changes to the legal definition of “antique firearm”. In March, the Antique Firearms Regulations 2021 provided a legal definition for the first time. According to the government, the aim was to prevent the exploitation of a lack of clarity in law to gain possession of such weapons for use in crime. The definition is a firearm manufactured before 1st September 1939.
As a result of these regulations, owners have until 22nd September 2021 to apply to the police for a firearms certificate to allow legal possession. If you do not want to apply for a firearms certificate, the same date applies for the surrender, sale or other disposal of the firearm.
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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 firstname.lastname@example.org. Let us help.[Image credit: “knives” by kyle.l.marsh 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 email@example.comRead More