A note on offensive weapons

There are a number of different ways in which the carrying and use of offensive weapons in such circumstances can be reflected in the prosecutor’s charging decision. This note seeks to highlight five general points that should inform
that decision.

The typical scenario under discussion will involve, say, an altercation or argument between two groups of people at or outside a public house, club or railway/bus station. The altercation develops into threats and then the use of violence by individuals within each group. Arrests are made by the police and offensive weapons are discovered both on those arrested and at the scene of the
violence.

Firstly, and most importantly, the charges selected must comply with Paragraph 7.1 of the Code for Crown prosecutors. The charges must therefore:

n reflect the seriousness of the offending,
n give the court adequate sentencing powers,
n enable the case to be presented in a clear and simple way.
Secondly, where a weapon, such as a knife, bottle, glass or missile, is used to inflict injury or damage on an identifiable person or item of property, the appropriate charge should reflect that fact.

In the case of injury, the appropriate charge, depending on severity and intent, will be common assault contrary to Section 139 Criminal Justice Act 1988, one of the offences of assault contained in Sections 47, 20 or 18 Offences Against the Person Act 1861, or, in the case of a fatality, murder or manslaughter

In the case of damage to property the appropriate charge will be contained in the Criminal Damage Act 1971.

Thirdly, where the weapon is used, for example by being thrown, but the evidence cannot establish whether or not damage resulted or injury was caused to an identifiable person (or contact made with such a person), the appropriate charge is likely to be an offence under the Public Order Act 1986 (Section 5, 4, 4A, 3 or 2 in cases with a background of major group public disorder).
The same range of offences should be considered where the weapon is used by being brandished, discharged or held threateningly.

Fourthly, where the weapon is used in any way, a charge that is directed at prohibiting the possession of the weapon is generally inappropriate and should normally be avoided. There are two reasons for this; compliance with Paragraph 7.1 of the Code and the established case law.
If the essence of the defendant’s conduct is that he used a weapon to cause injury, damage, alarm or fear, then a charge of possessing the weapon either contrary to Section 1 Prevention of Crime Act 1953 (PCA) or, if a bladed instrument Section 139 Criminal Justice Act 1988 (CJA) does not on its own reflect the seriousness of the offending and will probably not give the court adequate sentencing powers. The court could not properly, when sentencing in relation to a possession offence, reflect the use of the weapon because to do so would amount to sentencing a defendant for a different offence to that of which he had been convicted.

On the other hand preferring a possession charge in addition to one reflecting the use of the weapon generally complicates presentation of the case, adds nothing to the gravamen of the offending and contains an element of duplication. In other words the carrying of the weapon becomes subsumed into the more serious offence reflecting the use of the weapon.

The offence contrary to Section 1 PCA is committed when the defendant ‘has with him in a public place’ an offensive weapon without lawful authority or reasonable excuse. The offence contrary to Section 139 CJA is committed when, subject to specific defences set out in the Section,
a defendant ‘has an article to which
the section applies with him in a
public place’.

The phrase ‘has with him’ emphasises that the offences are concerned with the situation where a person carries the weapon. Neither offence is concerned with the actual use of the weapon nor with the situation where a person arms himself with a weapon for