25 July 2019
Written by: Danielle Johnson, PNLD Legal Adviser
Not reviewed after the date of publication
The Offensive Weapons Act 2019 received Royal Assent on 16th May 2019 in response to the rising number of serious violent offences involving knives, corrosives and firearms.
PNLD legal adviser Danielle Johnson gives a brief overview of the new offences that are in force with immediate effect and the changes that are to be made in due course.
Notable changes to date
The changes in force at present include the addition of a new prohibited weapon and device into section 5 of the Firearms Act 1968, subsequently creating two new offences:
Rifle with a chamber from which empty cartridge cases are extracted
New subsection 5(1)(ag) creates an offence to purchase, acquire, manufacture, sell or transfer any weapon from which empty cartridge cases are extracted. This is provided they are extracted using energy from propellant gas, or energy imparted to a spring or any other energy storage device by propellant gas. The rifle can also be any rifle except one which is chambered for 22 rim-fire cartridges.
Device which is designed or adapted to form part of a lethal weapon (bump stock)
New subsection 5(1)(ba) creates an offence to purchase, acquire, manufacture, sell or transfer any device that is commonly known as bump stock. This is a device which is designed or adapted so that it is capable of being added / forming part of a lethal barrelled weapon, and in doing so it increases the rate of fire by using the recoil to generate repeated pressure on the trigger.
One point to note is that possession of the above weapons and devices is not yet an offence under the Act. A number of compensation and surrender arrangements must be followed before the prohibition on possession can be brought in force.
Notable changes not yet in force
Part 1 - Corrosive products and substances
Section 1 - Offence to sell corrosive products to persons under 18
This section creates an offence where an individual sells a corrosive product to a person under 18. The substances and concentration levels of what are considered corrosive products are set out in Schedule 1 to the Act. A defence of taking all reasonable precautions and exercising due diligence to avoid committing of the offence is available.
Section 2 - Defence for remote sale of corrosive products to persons under 18
Remote sales are when the seller and buyer are not in the presence of each other at the time of sale i.e. telephone, online sales. This section provides a defence to the offence under section 1 above, as long as conditions A-D are met. These include: age verification software being used, clearly marking packaging, all reasonable precautions / due diligence being exercised and not delivering to a locker.
Section 3 - Offence to deliver corrosive products to residential premises etc.
This section also applies to remote sales and creates an offence of delivering a corrosive product to a residential premises or locker. A defence is available if all reasonable precautions and due diligence are exercised to avoid the commission of the offence.
Section 4 - Offence to deliver corrosive products to person under 18
This section applies when a seller outside the UK enters into an arrangement with a body corporate in the UK to a deliver corrosive product to a buyer. The company must be aware they are delivering corrosive products and commit an offence if they deliver those products to a person under 18. Again, a defence is available if all reasonable precautions and due diligence was exercised.
Section 6 - Offence of having a corrosive substance in a public place
A person commits an offence under this section if they have a corrosive substance in a public place, unless they have good reason, lawful authority or it is for use at work. Please note that in this instance, the term corrosive substance means any substance which is capable of burning human skin by corrosion, not just those products listed in Schedule 1. Pursuant to section 8, the courts must impose a minimum custodial sentence for this offence where the offender is over 16 years old and has had at least one relevant conviction. Section 9 confirms what constitutes a relevant conviction.
Section 10 - Searching for corrosive substances
This section amends the powers of a constable to stop and search under section 1 of the Police and Criminal Evidence Act 1984, enabling police to search for a corrosive substance in order to investigate potential offences under section 6 above (having a corrosive substance in a public place).
Part 2 - Knife Crime Prevention Orders
Knife Crime Prevention Orders are civil orders imposed by the courts to individuals over the age of 12, imposing requirements or prohibiting certain actions. Examples could include curfews, geographical restrictions and attending knife crime awareness courses. The orders can be made on conviction (section 19) or on application by a relevant chief officer of police, chief officer of the British Transport Police or chief constable of the Ministry of Defence (sections 14 & 15). Interim orders can also be applied for when proceedings for knife crime prevention order are adjourned and a decision is yet to be determined (sections 17 and 18).
An order must apply for a minimum of 6 months and a maximum of 2 years, but it can provide that it does not take effect until the person is released from custody or ceases to be subject to a custodial sentence or licence (section 23). The court may order the applicant and defendant to attend review hearings, and where the order has effect for more than one year, such a hearing must be held within the last 4 weeks of the one year period (section 26). Applications can also be made to vary, renew or discharge such an order (section 27).
Section 25 - Offences relating to notification
Under this section, a person commits an offence if without reasonable excuse, they fail to comply with the notification requirements set out in section 24 of the Act, or provide information known to be false, in purported compliance with section 24.
Section 29 - Offence of breaching knife crime prevention order etc.
This section creates the offence of breaching a knife crime prevention order or interim order without reasonable excuse.
Part 3 - Sale and delivery of knives etc.
Sale of bladed articles and new defence for remote sale
The sale of bladed articles is already an offence under section 141A(1) of the Criminal Justice Act 1988 along with a defence under subsection (4) where a person can show they took all reasonable precautions and exercised due diligence. However, the Offensive Weapons Act adds an additional defence in new section 141B which applies only when the sale has been carried out remotely. Conditions A-D must be met for the defence to apply including: age verification software being used, clearly marking packaging, all reasonable precautions / due diligence being exercised and not delivering to a locker.
Section 38 - Delivery of bladed products to residential premises etc.
This section applies when a sale has been conducted remotely and creates an offence where a seller delivers or arranges delivery of a bladed product to a residential premises or a locker. Section 40 provides defences in relation to these offences, which are outlined below. Please note the term ‘bladed product’ is used in this section, which is defined in section 41 as an article which is or has a blade and is capable of serious injury to a person involving cutting the skin.
Section 39 - Delivery of bladed products to persons under 18
This section applies when a seller outside the UK enters into an arrangement with a body corporate in the UK to deliver a bladed product to a buyer. The company must be aware they are delivering bladed products and commit an offence if they deliver to a person under 18.
Section 40 - Defences to offence under section 38 and 39
Subsections (1)-(6) set out the defences that apply to an offence under section 38, including taking all reasonable precautions and exercising due diligence, proving that the bladed product was designed, manufactured or adapted in accordance with specifications provided by the buyer, and proving that they reasonably believed the buyer had bought the bladed product for use for relevant sporting purposes or for the purposes of historical re-enactment. Subsection (7) outlines the defence of taking all reasonable precautions and exercising due diligence for a Section 39 offence.
Section 42 - Delivery of bladed articles to persons under 18
This section applies when a seller outside the UK enters into an arrangement with a body corporate in the UK to deliver a bladed article to a buyer. The company must be aware they are delivering bladed articles and commit an offence if they deliver to a person under 18. This section refers to a ‘bladed article’ (rather than a ‘bladed product’), meaning any article to which section 141A of the Criminal Justice Act 1988 applies. In contrast to section 39, this offence will therefore also cover articles that are sharply pointed and are made or adapted for use for causing injury.
Part 4 - Possession etc. of certain offensive weapons
Definition of flick knife
The definition included in Section 1 of the Restriction of Offensive Weapons Act 1959 will be updated to reflect changing weapon designs. The updated definition will include any knife that opens automatically from the closed position or a partially opened position to a fully opened position, by manual pressure applied to a button, spring or other device in or attached to the knife.
Prohibition on the possession of certain dangerous knives
Section 1 of the Restriction of Offensive Weapons Act 1959 will be amended to insert new subsections (1A)-(1C), making it an offence to possess any dangerous knife covered by subsection (1) (flick knives and gravity knives). It will be a defence for a person charged with this offence to show that they only possessed the knife in their capacity as the operator of, or a person acting on behalf of, a museum or gallery.
Prohibition on possession of offensive weapons on further education premises
The offence in section 139A of the Criminal Justice Act 1988 of possessing an offensive weapon on school premises will be extended to include further education premises.
Prohibition on the possession of offensive weapons
New subsection (1A) will be inserted into section 141 of the Criminal Justice Act 1988, making it an offence to also possess offensive weapons in private. This offence will apply to all weapons listed in Schedule 1 to the Criminal Justice Act 1988 (Offensive Weapons Order) 1988, including zombie and cyclone / spiral knives, which will also be added to the Schedule. A number of defences are available for this offence, including if the weapon is of historical importance, is possessed on behalf of a museum or gallery, or is possessed for educational, theatrical, film or television purposes.
Part 5 - Threatening with offensive weapons
Offence of threatening with offensive weapon etc. in a public place etc.
The offence in section 1A of the Prevention of Crime Act 1953 will be amended to include an objective element - whether a reasonable person exposed to the threat would think there was an immediate risk of physical harm.
Offence of threatening with offensive weapon etc. on further education premises
The offence of threatening a person with an offensive weapon or a blade / pointed article on a school premises under section 139AA of the Criminal Justice Act 1988 will also be amended to include further education premises.
Section 52 - Offence of threatening with an offensive weapon etc. in a private place
This section creates an offence of threatening a person with an offensive weapon, bladed / pointed article or corrosive substance in a private place, in such a way that there is immediate risk of serious physical harm to that person.
Section 53 - Search for corrosive substance on school or further education premises
This section provides constables with the power to enter and search a premises if they have reasonable grounds for suspecting that an offence under section 52 (as it applies to corrosive substances) is being or has been committed on school or further education premises.
Part 6 - Firearms
As mentioned above, some of Part 6 came in force with immediate effect (the offence of manufacture and sale of rapid firing rifles and bump stocks, which increase a rifle’s rate of fire). However, the possession element of the offence is yet to come in force.
Explanatory notes to assist in the understanding and interpretation of the Act are yet to be published by the Home Office. Please note PNLD will only publish changes that are currently in force and any notable parts will be highlighted on our homepage.