Offensive weapon

Legality

UK

England/Wales

1. An offensive weapon per se i.e. one that is made for causing injury to the person
2. those adapted for such a purpose, e.g. a baseball bat with a nail embedded in it
3. items not made or adapted, but merely intended to be used as an offensive weapon even if they have some other legitimate use e.g. car keys held between the knuckles or a cup of bleach which is intended to be thrown in someone's face

List of offensive weapons

• a knuckleduster, that is, a band of metal or other hard material worn on one or more fingers, and designed to cause injury, and any weapon incorporating a knuckleduster;
• a swordstick, that is, a hollow walking-stick or cane containing a blade which may be used as a sword;
• the weapon sometimes known as a "handclaw", being a band of metal or other hard material from which a number of sharp spikes protrude, and worn around the hand;
• the weapon sometimes known as a "belt buckle knife", being a buckle which incorporates or conceals a knife;
• the weapon sometimes known as a "push dagger", being a knife the handle of which fits within a clenched fist and the blade of which protrudes from between two fingers;
• the weapon sometimes known as a "hollow kubotan", being a cylindrical container containing a number of sharp spikes
• the weapon sometimes known as a "footclaw", being a bar of metal or other hard material from which a number of sharp spikes protrude, and worn strapped to the foot;
• the weapon sometimes known as a "shuriken", "shaken" or "death star", being a hard non-flexible plate having three or more sharp radiating points and designed to be thrown;
• the weapon sometimes known as a "balisong" or "butterfly knife", being a blade enclosed by its handle, which is designed to split down the middle, without the operation of a spring or other mechanical means, to reveal the blade;
• the weapon sometimes known as a "telescopic truncheon", being a truncheon which extends automatically by hand pressure applied to a button, spring or other device in or attached to its handle;
• the weapon sometimes known as a "blowpipe" or "blow gun", being a hollow tube out of which hard pellets or darts are shot by the use of breath;
• the weapon sometimes known as a "kusari gama", being a length of rope, cord, wire or chain fastened at one end to a sickle;
• the weapon sometimes known as a "kyoketsu shoge", being a length of rope, cord, wire or chain fastened at one end to a hooked knife;
• the weapon sometimes known as a "manrikigusari" or "kusari", being a length of rope, cord, wire or chain fastened at each end to a hard weight or hand grip;
• a disguised knife that is any knife which has a concealed blade or concealed sharp point and is designed to appear to be an everyday object of a kind commonly carried on the person or in a handbag, briefcase, or other hand luggage.”
• a stealth knife, that is a knife or spike, which has a blade, or sharp point, made from a material that is not readily detectable by apparatus used for detecting metal and which is not designed for domestic use or for use in the processing, preparation or consumption of food or as a toy;
• a straight, side-handled or friction-lock truncheon.”
• a sword with a curved blade of 50 centimetres or over in length; and for the purposes of this sub-paragraph, the length of the blade shall be the straight line distance from the top of the handle to the tip of the blade.”
• the weapon sometimes known as a "zombie knife", "zombie killer knife" or "zombie slayer knife", being a blade with a cutting edge; a serrated edge; and images or words that suggest that it is to be used for the purpose of violence.”
• the weapon sometimes known as a “cyclone knife” or “spiral knife” being a weapon with a handle, a blade with two or more cutting edges, each of which forms a helix, and a sharp point at the end of the blade.”

...any knife which has a blade which opens automatically by hand pressure applied to a button, spring or other device in or attached to the handle of the knife, sometimes known as a "flick knife" or "flick gun"; or any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force and which, when released, is locked in place by means of a button, spring, lever, or other device, sometimes known as a "gravity knife".

...any knife which has a blade which opens automatically from the closed position to the fully opened position, or from a partially opened position to the fully opened position, by manual pressure applied to a button, spring or other device in or attached to the knife, and which is sometimes known as a “flick knife” or “flick gun”"

Reasonable excuse/defences

Lawful authority/reasonable excuse

Weapon of opportunity/instantaneous arming

Injury to the person

Public place

Relevant case law

• Meade & Belt's Case – 'But the making an attack on a dwelling, and especially at night, the law regards as equivalent to an assault on a man's person; for a man's house is his castle, and therefore, in the eye of the law, it is equivalent to an assault'.
• R v Weston 14 Cox CC 346 – reasonable force may involve using a weapon against an unarmed opponent if there is an apprehension of death or serious violence
• R v Symondson 60 JP 645 – the particular degree of danger the householder believed themselves to be in was found relevant
• R v Annie Davis 69 JP 645 – a woman fired a revolver and wounded her husband. Her defence was that she believed she was firing at a burglar. The court held if the accused had known it was her husband she was guilty, but if she believed it was a burglar she had a defence.
• R v Hussey – "in defence of a man's house, the owner or his family may kill a trespasser who would forcibly dispossess him of it".
• Petrie 1 WLR 358 – held that an ordinary razor is not an offensive weapon per se. It was held the prosecution must prove the element of specific intention – each case is fact specific. How the weapon was used might aid in determining what the intention of the possessor was. "The Prevention of Crime Act 1953 lays the burden of proof of either lawful authority or reasonable excuse upon the accused, but only when the possession of an offensive weapon has been established"
• Ball JPN 723 – a householder fired a shotgun into a crowd that came to attack him. The judge directed the jury to acquit: 'It has been said that an Englishman's home is his castle and if you accept what has been said you could not possibly say that what Ball did was not done in self-defence.'
• Fagan v Metropolitan Police 1 QB 439, 3 All ER 442, 3 WLR 1120, 52 Cr App R 700, DC – stated that to be found guilty of a crime, a person must be shown to have held mens rea as well as actus reus – guilty mind AND commit a guilty act
• Brown 55 Cr App R 478 – the standard of proof required to establish lawful authority or a reasonable excuse is on a balance of probability and not beyond a reasonable doubt
• Palmer AC 814–831 – Lord Morris stated: "If there has been an attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a Jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken".
• Bates v Bulman 3 All ER 170 – the Divisional Court held that the accused who grabbed an unopened clasp knife with the immediate intention of using it as an offensive weapon did not commit an offence. This was held to be because of the purpose of the Prevention of Crime Act 1953, which was designed "to cover the situation where an accused person... has with him and is carrying an offesnive weapon intending that it shall be used, if necessary, for offensive purposes"
• Allamby 3 All ER 126 – the charge should specify the time and place that the person charged formed the intention to cause injury. The assumption that the suspect had the necessary intention at some earlier stage is not sufficient
• R v Dayle 1 WLR 181 – car jack used during an assault but otherwise carried lawfully was not an offence
• Ohlson v Hylton WLR page 724 – held that a hammer carried home from work, but used during an imminent attack was lawfully used. Conviction quashed – appeal upheld.
• R v Humphreys Crim LR 225 – an ordinary penknife was held not to be an offensive weapon per se when using during an imminent attack because the intent to use it was only formed during the attack
• Southwell v Chadwick 85 Cr App R 235 – Court of Appeal accepted that a machete in a scabbard and a catapult used for killing squirrels are offensive per se, the accused had a reasonable excuse
• Houghton v Chief Constable of GMP – an off-duty Constable had a 'reasonable excuse' to the carrying of a truncheon because he was returning from a fancy-dress party
• McCalla 87 Cr App R 372 – it was held that to have something with one necessarily requires closer contact than mere possession: "every case of 'having' is one of 'possessing', but it does not necessarily follow that every case of 'possessing' is one of 'having' within the meaning of the relevant statutory provisions". This is important, as the offence under S1 Prevention of Crime Act 1953 uses the phrase "has with him".
• McCalla 87 Cr App R 372 – finding a lost offensive weapon and intending to take it to the nearest police station, but being stopped before able to do so is reasonable excuse
• Densu 1 Cr App R 400 – the phrase 'have with him' in terms of S1 PCA1953 is not satisfied if the prosecution proved he had the baton with him but could not prove the accused knew it was a weapon.
• Malnik v DPP Crim LR 451 per Bingham LJ – ordinarily arming yourself with an offensive weapon to repel unlawful violence when one has deliberately and knowingly brought about the situation in which such violence was liable to be inflicted. Security guards may have more of a reasonable excuse to possession of an offensive weapon by the nature of their job.
• Fleming Crim LR 71 – held that the definition of 'injury to the person' does not include self-harm to the individual possessing it
• KP Warne v DPP – the prosecution could not show that pickaxe handle was sufficiently adapted as an offensive weapon
• Chen v DPP EWHC Admin 221 – held that although an item may technically be an offensive weapon per se, the whole circumstances need to be taken into account. The High Court in this case ruled that whether an item is an offensive weapon or not is not a question for the law to decide, but the jury in this instance. This ruling then went on to state that a possession of a kubotan is not illegal per se in a public place when carried as a keyring
• Daubney 164 JP 519 – a judge in a lower court erred in his decision to direct the jury to decide that a knife being present in the accused's van was sufficient to prove possession of an offensive weapon
• C v DPP EWHC Admin 1093 – no evidence presented to hold the opinion that the defendant had formed the intent to use the article offensively before the occasion of the actual use had arisen. Conviction quashed – appeal upheld.
• R Bayliss v DPP EWHC 245 – a person who forgets they have an offensive weapon with them in a public place, still has it with him. However, forgetfulness may be relevant to whether the accused had good reason for being in possession of the article.
• Jolie 1 Cr App R 44 – Court of Appeal ruled that proof of whether the accused was aware of the presence of the knife in the vehicle is entirely relevant to the charge as well as whether he was responsible for putting the knife in the place it was found
• DPP v Patterson EWHC 2744 – a butterfly knife used to cut open feed for a horse and bales of hay, was sufficient for reasonable excuse on the facts of the case.
• R v Christof EWHC 4096 – held that detailed consideration needs to be given as to whether a belt buckle is manufactured as such, or if it is simply a covert knuckleduster
• R v Manjinder Singh Dhindsa EWCA Crim 1198 – the judge incorrectly ruled that a ring was a knuckleduster under S1 Prevention of Crime Act 1953, that question of whether it was an offensive weaspon should have been left to the jury
• R EWCA Crim 3312 – held that it was for the jury alone to infer on the facts presented, if the article in question was in fact adapted as an offensive weapon. Conviction quashed – appeal upheld
• N v DPP 175 JP 337 per Supperstone J at 32 – there is no authority for the proposition that a reasonable excuse can be decided subjectively. "When a defendant claims that he had a reasonable excuse for possession of an offensive weapon because he believed he was at risk of imminent attack, it is for him to prove both the belief and the reasonablness of the belief on a balance of probabilities."
• R v Henderson EWCA Crim 965 – it was ruled that there was no "geographical, temporal or purposive link" to the knife and that it was not "immediately available". Appeal upheld
• Tucker EWCA Crim 13 – it was held that there is an important distinction between an everyday article introduced to a public place by a person with an intent to injure, than an article already possessed lawfully with good reason that is used offensively to cause injury. All cases depend on its facts

  Bladed article defences

• a butterknife, with no cutting edge and no point is a bladed article;
• a screwdriver is not a bladed article;
• a ‘lock knife’ does not come into the category of ‘folding pocket knife’ because it is not immediately foldable at all times;

  New Zealand

Australia