Article: Possession of an offensive weapon in a private place, almost strict liability

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It is well established that it is an offence to be in possession of an offensive weapon in a public place without reasonable excuse.

In 2019, Parliament went further by enacting The Offensive Weapons Act. Effective from the 14th July 2021, under section 46 of the Act it was made an offence for a person to possess an offensive weapon in a private place.

What constitutes a private place is anywhere that amounts to a domestic premises. This is largely self-explanatory and, of course, it includes people’s homes, their garages, and gardens (section 141 (1F) of the Criminal Justice Act 1988). Looking at the legislation, it simply means a place which is not a public place, school or further education premises or a prison (section 141 (1C) of the Criminal Justice Act 1988).

Although legislating within our homes, the Offensive Weapons Act does not go quite as far as some might fear.  The Act only applies to specific offensive weapons which are set out in Schedule 1 of the Criminal Justice Act 1988 (Offensive Weapons) Order 1988 (SI 1988 No. 2019). To name a few, this includes:

  • Knuckle dusters;
  • Swordsticks;
  • Death stars;
  • Swords with a curved blade of over 50 centimetres;
  • Zombie knives;
  • Cyclone knives.

 

Defences:

The following defences apply to those who are found to be in possession of an offensive weapon in a private place (as set out within section 141 of the Criminal Justice Act 1988).

  • The weapon is of historical importance;
  • The weapon is to be used for historical re-enactments;
  • The weapon is to be used for sporting activities;
  • The weapon is to be used for theatre, film, or television purposes;
  • The weapon is possessed on behalf of a museum or gallery, or is lent or hired by a museum or gallery for proper purposes;
  • The weapon is possessed for religious reasons;
  • The defendant (who has possession of the offensive weapon) is carrying out functions on behalf of the Crown or a visiting force.

Furthermore, under the Criminal Justice Act 1988 (Offensive Weapons) Order 1988 (SI 1988 No.2019) Schedule 1, the offence specifically does not apply to the following weapons:

  • Weapons considered to be antiques which are over 100 years old (paragraph 2);
  • Swords with curved blades of 50 cm or more which were made before 1954 or made at any other time according to traditional methods of making swords by hand (paragraph 3 b).

Crucially, it should be noted that having a reasonable excuse does not operate as a defence for those who have an offensive weapon in a private place. This is contrary to the position afforded to those who find themselves charged with having possession of an offensive weapon in a public place, where having a reasonable excuse does amount to a statutory defence.

 

Sentence:

The Sentencing Council are yet to release a set of guidelines in relation to this offence within a private setting.

The only indicator available for those charged with having an offensive weapon in a private place is that the maximum sentence is 51 weeks imprisonment or a fine, or both as set out in section 141 (1A) of the Criminal Justice Act 1988.

 Although it is tempting to use the sentencing guidelines for the possession of an offensive weapon in a public place as a starting point, it should be kept in mind that the public element makes the offence much more serious and therefore the two offences should not be considered as running parallel.

Additionally, for the purposes of mandatory minimum sentences, practitioners should be clear that the offence of possessing an offensive weapon in a private place does not constitute a relevant offence. It does not engage the mandatory minimum sentence of 6 months’ imprisonment where it is a second or further offence. The mandatory minimum sentence regime only applies to those offences which are public facing or committed on school premises.

 

Comment:

At present we are in a situation whereby possessing an offensive weapon in a private place is almost a strict liability offence. Unless you are a museum, gallery, the military, or using the weapon for theatre or film purposes, you cannot possess an offensive weapon in the privacy of your own home.

Although this may appear harsh, ultimately the strict legislative position is tempered by the fact that the offence only applies to those specific weapons contained within Schedule 1 of the Criminal Justice Act 1988 (Offensive Weapons) Order 1988 (SI 1988 No. 2019). It does not extend to basic household items, such as kitchen knives, and there does exist exceptions for religious swords and articles of historical importance.

The group left without protection are those who are in possession of the offensive weapon who originally had the intention of disposing of it but subsequently forget that they have the item. Considering the legislation as it stands, this factor would only amount to significant mitigation at best.  The defence of reasonable excuse does not apply and forgetfulness also does not amount to a defence for possessing an offensive weapon in a private place.

It is suspect whether the position we are left in was the true intention of Parliament. Nonetheless, we find ourselves in a situation whereby more defences are available to those in possession of an offensive weapon in a public place, than those with the same weapons in private.

 

Charlotte Arundale

Second-Six Pupil at Lamb Building.

 

Reminder: This article is not to be viewed as legal advice and is simply for educational purposes and to help keep practitioners up to date on the key legal framework.

  

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