Having An Offensive Weapon In Public Place

Having An Offensive Weapon In Public Place

Many unwitting members of the public have been accused of such an offense due to the fact that they have had articles which could be offensive weapons in law but that they have had for perfectly innocent reasons. For example articles that have been used in connection with work or home DIY such as Stanley Knives or hammers can be mistaken as offensive weapons by overzealous or inept police officers.

 

If you have been charged or are under investigation for of possession of an offensive weapon and have been wrongly accused it is essential that expert legal advice is sought at an early stage as with the correct representations made to the police and Crown Prosecution Service matters can be resolved without an appearance at Court.

 

The Law-

 

For what is a seemingly simple offence the law regarding possession of an offensive weapon is actually quite complex. If you don’t wish to examine the detail of the law please skip to the bottom of this article where defences and further action is discussed.

 

The law in respect of this offence is governed by the Prevention of Crime Act 1953, s.1, the relevant parts are as follows-

 

1.

(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

 

(4)   

In this section “public place”   includes 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; and “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.

 

This may appear to be written in ‘legalese’ but it is easily understandable if we examine the individual ‘elements’ or constituent parts of the offence. In examining the elements of the offence it is worth noting that it is for the prosecution to prove each one of these so that the Court is sure or ‘beyond reasonable doubt’; if any one of the elemnts is not proved then the prosecution fails and the defendant is entitled to a ‘not guilty’ verdict..

 

“has with him”

 

The words “has with him in any public place” mean “knowingly has with him in any public place”, and it is for the prosecution to prove knowledge. Once a person has something knowingly, he continues to have it until he does something to rid himself of it. Merely forgetting that he has it is not enough to prevent him from continuing to have it.

 

“public place”

 

The best way of demonstrating what is a public place for the purposes of the law is to look at the Court of appeal case of R. v. Kane [1965] 1 All E.R. 705, this gave guidance as to whether a place is a public place:

"The real question is whether [the place] is open to the public, whether on payment or not, or whether, on the other hand, access to it is so restricted to a particular class, or even to particular classes of the public, such, for example, as the members of an ordinary householder’s family and his relations and friends, and the plumber or other tradesmen who come to do various repairs about the house. If it is restricted to that sort of class of person then, of course, it is not a public place, it is a private place"(at p. 709).

 

Before land can be said to be public, the onus is on the prosecution to prove that the public had access to it, and the best way of doing so is to prove that they actually use it.

 

The following have been held by the Courts to be public places: a field where point-to-point races are held; a football stadium; hospital grounds where visitors to the hospital and their friends were permitted to enter;  a public house car park; a multi-storey car park and the upper landing of a block of flats in respect of which there were no notices, doors or barriers to restrain the public walking in off the street.

A person’s garden cannot be a public place, notwithstanding the possibility that from there he might be able to inflict injury with a weapon on a passer-by on adjacent land to which the public has access.

 

The definition of an “offensive weapon”

 

This is somewhat legally complicated and is the below is a very basic guide.

The Court of Appeal in R. v. Simpson 78 Cr.App.R. 115, CA, identified the fact that the law recognises three categories of offensive weapon:

 

1)  those made for use for causing injury to the person, This is legally classified as an ‘offensive weapon per se’; examples could be flick knifes, throwing stars, pepper spray etc

ii)  those adapted for such a purpose. This covers items that would otherwise be incapable of causing injury but have been changed so that they now can eg- a sock containing a snooker ball, a sharpened stick, a water pistol filled with acid.  

iii)  those not so made or adapted, but carried with the intention of causing injury to the person- eg- a cup of bleach carried with the intent of throwing into someone’s face to cause injury.

 

In the first two categories, the prosecution do not have to prove that the defendant had the weapon with him for the purpose of inflicting injury. If the Court is sure that the weapon is offensive, the defendant will only be acquitted if he establishes the defences of lawful authority or reasonable excuse.

 

Defences:

 

Lawful authority

 

The reference to lawful authority is a reference to those people who from time to time carry an offensive weapon as a matter of duty—the soldier and his rifle and the police officer with his truncheon. They are all carrying offensive weapons, but they do so normally under lawful authority. Under certain circumstances persons in positions of authority and protection such as security guards and bouncers may be permitted to carry offensive weapons but this will very much turn on the surrounding facts of the alleged offence.

 

Reasonable excuse:

The question of reasonable excuse is a curious mixture of law and fact and often a lawyer will be required to explain where a certain set of facts will lie. Examples of reasonable excuse may be- finding an offensive weapon and being found on the way to hand it in to the police station, possession of the weapon having disarmed another, the legitimate transportation of an offensive weapon- when moving house or taking it home having purchased it in a shop. Again it is impossible to give a comprehensive list of what can and cannot constitute a reasonable excuse.

 

Self-defence

 

Where a defendant carries a weapon for his own protection, and can show on a balance of probabilities that he fears an imminent attack, this is capable of constituting a reasonable excuse; but the words “imminent attack” not being written into the statute, it is for the Court to determine how imminent, how soon, how likely and how serious the anticipated attack has to be.

 

Older authorities suggest that, as a matter of law, where a defendant has been attacked and fears that it might be repeated, carrying a weapon for a day or two after the attack is probably reasonable.

 

Forgetfulness

 

Forgetfulness alone cannot be a reasonable excuse for having an offensive weapon, but the combination of forgetfulness and the circumstances of the article’s acquisition may be.

 

Proving the defences of “without lawful authority or reasonable excuse”

 

If one is relying on a defence of lawful authority or reasonable excuse the burden and standard of proof is on the defendant and is the balance of probabilities.

 

 

Potential sentence

 

This offence is known as an offence that is ‘triable either way’- this means that it may be heard in the Magistrates Court or the Crown Court.

 

The maximum sentence in the Magistrates Court is 12 months imprisonment and at the Crown Court the maximum sentence is four years imprisonment.

 

The question of intention is very important to sentence, there are three specific factors that would increase any sentence:

 

(1)specifically planned use of the weapon to commit violence or threaten violence or intimidate others;

(2)hostility towards a minority individual or group, which may give rise to an aggravating feature, such as racial motivation within the CDA 1998, s.28; and

(3)acting under the influence of alcohol or drugs.

 

The circumstances of the offence may be aggravated if its commission takes place at premises such as a school, a hospital or other place where vulnerable people may be present; or at a large public gathering, especially one where there may be a risk of disorder; or on public transport or licensed premises or premises where people are carrying out public services, such as in a doctor’s surgery or at a social security office; or if committed while on bail.

 

Although some weapons are more dangerous than others, the nature of the weapon will not be the primary determinant of the offence’s seriousness, because a less dangerous weapon may be used to create fear, whereas a more obviously dangerous weapon may be carried for self-defence or no actual attempt may have been made by the offender to use it. But the nature of the weapon may shed light on an offender’s intention, if he is carrying a weapon which is offensive per se, such as a flick-knife or a butterfly knife, or a weapon designed or adapted to cause serious injury.

 

Mitigating factors which would decrease the sentence passed include the weapon being carried only on a temporary basis.

 

A defendant, with previous convictions for violence or carrying weapons, who is convicted of carrying a particularly dangerous weapon, in circumstances including any of the above aggravating factors and with the clear intention of causing injury or fear, can expect to receive a sentence at or near the maximum.

 

In relation to an adult offender with no previous convictions, the custody threshold will almost invariably be passed where there is a combination of dangerous circumstances and actual use of the weapon to threaten or cause fear. The nature of the weapon and other aggravating or mitigating factors will bear on the length of the custodial term. Custody may still be appropriate, depending on the circumstances, where no threatening use was made of the weapon. Alternatively, absent any aggravating features and where no threat has been made and where the weapon is not particularly dangerous, prison may not be appropriate and a community sentence towards the top end of the available range may be appropriate.

 

Summary

 

Possession of an offensive weapon is a very serious offence which normally carries a term of imprisonment. As can be seen above the law is quite complex and anyone accused of this crime should seek expert legal advice at an early stage. There are many defences available and those without legal training may not be able to immediately identify a weakness in the prosecution case or a strong defence.

 

Quentin Hunt is a legal expert with much experience in cases of possession of an offensive weapon and has an excellent track record in such cases. Please see here for an example of such a case. If you are accused of possession of an offensive weapon please contact Quentin for a free informal no obligation conversation about your case.  

 

 

POSTED: Friday, July 17, 2015

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