What is the offence?
Possessing an offensive weapon in a public place is an offence contrary to s 1 of the Prevention of Crime Act 1953.
To satisfy the charge, the prosecution must prove each of the following elements:
- has with him (possession);
- in any public place;
- any offensive weapon.
Having established all of the above, the charge would succeed, unless the accused proves that he had either:
- lawful authority; or
- reasonable excuse.
What is an offensive weapon?
The term ‘offensive weapon’ is defined as: ‘any article made or adapted for use to causing injury to the person, or intended by the person having it with him for such use.’
To be considered an offensive weapon, the article must come within one of the following three categories:
1. An offensive weapon per se
The following have been held to be offensive weapons per se because they do not have any innocent quality: machete, sword, flick knife, truncheon. However, a lock knife, ordinary razor or a penknife have been held not to be offensive weapons per se, because they do have an innocent purpose.
2. Something adapted to cause injury
This could include a bottle that has been deliberately broken, a potato with a razor blade inserted into it, or an unscrewed pool cue.
3. Something that is not offensive per se, or adapted, but is intended to be used for the purpose of causing injury
For example, a work hammer or a stone etc.
Do the prosecution have to prove that the possessor also had an intention to cause injury?
If it is a weapon that is offensive per se, or that has been adapted to cause injury, 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, the prosecution must prove the intent to injure.
What is possession?
This means ‘knowingly has with him’. Therefore, if the accused did not know that the weapon was on their person, they cannot be in possession of it. The prosecution have to prove 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.
What is a public place?
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.
What are the defences?
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 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.
If I find an offensive weapon on the street, will I be committing an offence if I picked it up?
If you took possession of the weapon with the intention of handing it in to a police station, but were soon after stopped by the police that is capable of constituting a reasonable excuse.
Is it a reasonable excuse to carry an offensive weapon for the purpose of self defence?
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 imminently attacked and carried the weapon to defend himself against a specific danger.
On whom does the burden of proof rest?
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, 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 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, ie, 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, ie, if it was carried for work purposes, but used in an attack, the defence would succeed (although the attacker may still face a charge of assault).
What is the range of sentencing?
The maximum sentence for conviction on indictment (at the Crown Court) is four years imprisonment or a fine, or both. On summary conviction (at the magistrates’ court), the maximum sentence would be six months imprisonment and/or a fine. Mitigating factors to reduce the sentence could include: co-operation with the police; pleading guilty at an early stage; or where no threat had been made and the weapon was not particularly dangerous.