Possessing an offensive weapon in a public place is an offence contrary to section 1 of the Prevention of Crime Act 1953.
In order to satisfy the charge, the prosecution must prove each of the following elements:
Having established all of the above, the charge would succeed, unless the accused proves that he had either:
In order to be considered an offensive weapon, the article must come within one of the following three categories:
If it is a weapon that is offensive per se, or that has been adapted to cause injury, then there is no requirement on the prosecution to prove that the possessor also intended to use it to cause injury. However, if the object falls under the third category, then the prosecution must prove the intent to injure. This makes perfect sense, as a knife or a broken bottle are obvious weapons, whereas something like a hammer would only become a weapon once an intent to use it to injure somebody can be established.
This means ‘knowingly has with him’. Therefore, if the accused did not know that the weapon was on his person, he cannot be in possession of it. The prosecution have to prove that the accused knowingly had possession of the weapon. Also, it has been decided in McCalla (1988) 87 Cr App R 372, that a person who forgets that he has the offensive weapon, is still considered to be in possession for the purposes of the statute.
A public place includes any highway and any premises or places to which at the material time the public have or are allowed to have access. A car is also considered as a public place, unless it was parked on private property at the time.
This only applies to people that carry an offensive weapon ‘as a matter of duty’, for example a soldier, or a police officer. A private security guard does not have such lawful authority, but he may have a reasonable excuse.
The following have been recognised as constituting a reasonable excuse on the facts, for carrying an offensive weapon in a public place: a hammer taken for later use at work, a machete knife that was being taken home after being lent to a friend, a butterfly knife that had been in possession for the purpose of cutting open feed for a horse, a truncheon that formed part of a fancy dress police uniform, etc.
If you took possession of the weapon with the intention of handing it in to a police station, but was soon after stopped by the police that is capable of constituting a reasonable excuse.
If the offensive weapon is carried as a ‘general precaution’, then no, this does not constitute a reasonable excuse. However, it might constitute a reasonable excuse if a person thought that he was about to be attacked imminently and carried the weapon to defend himself against a specific danger.
It would fall on the prosecution to prove that all three elements of the offence, namely i) possession ii) offensive weapon iii) public place, were satisfied. The prosecution would have to prove these elements ‘beyond reasonable doubt’. If the weapon was not offensive per se, nor adapted, but intended to be used as a weapon, then the prosecution would also have to prove this intention.
Having proved these three elements, the burden would then switch to the defence to satisfy the jury or magistrate that they either have a lawful authority, or a reasonable excuse for carrying the said weapon in a public place. However, the burden of proof for the defence is lower than that of the prosecution; the defence would have to satisfy on the balance of probabilities, i.e. that the accused probably did have a reasonable excuse.
These defences are in relation to the ‘carrying’ of the weapon, and are not concerned with its use, i.e. if it was carried for work purposes, but used in an attack, the defence would succeed (although the attacker can still face a charge of assault).
The maximum sentence for conviction on indictment (at the Crown Court) is 4 years imprisonment or a fine, or both. On summary conviction (at the Magistrates Court) the maximum sentence would be of 6 months imprisonment or a maximum fine of £5000 or both. Mitigating factors to reduce the sentence could include: co-operation with the police, pleading guilty at an early stage, where no threat had been made and the weapon was not particularly dangerous, etc.
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