Thematic report on knife crime

108. We outline below the legal considerations that must be taken into account by Procurators Fiscal when assessing a police report and considering whether to take proceedings and, if so, what proceedings should be taken.

Carrying a knife

109. It is against the law to have with you in a public place (or school or prison) an offensive weapon. A knife could be an offensive weapon depending on what it is and the circumstances in which it is carried or possessed. It is also against the law, in certain situations, to have a bladed or sharply pointed article (such as a knife) with you in a public place, in a school or in a prison.

110. The law concerning these aspects of knife crime is written in Statute (Act of parliament). The current law is contained in the Criminal Law (Consolidation) (Scotland) Act 1995 (hereinafter referred to as 'the 1995 Act'). Sections 47 and 49 relate to the carrying in a public place of offensive weapons and knives respectively.

111. Legislation to deal with possession of offensive weapons (including knives) was first introduced in the UK in the Prevention of Crime Act 1953. This Act made it an offence to have with you in a public place an offensive weapon without lawful authority or reasonable excuse.

112. Although the 'Offensive Weapon' legislation came into force in 1953 it was four decades later before law was enacted concerning knives (described as an "article which has a blade or is sharply pointed").

113. Thus in 1993 ⁹ it became an offence under statute to have an article with a blade or sharp point in a public place. There was an exception for folding pocket knives where the blade was less than three inches. It was a defence to have the item in a public place if a 'good reason or lawful authority' could be established. Similarly if it could be proved that the item was for use at work, part of a national costume (such as a skean dhu) or being carried for religious reasons.

114. These two statutes (the 1953 Act and the 1993 Act) were in force until 1996 when the law regarding possession of such implements was consolidated in the Criminal Law (Consolidation) (Scotland) Act 1995. The provisions concerning knife crime were contained in Section 47 (a re-statement of the 1953 provisions) and Section 49 (a re-statement of the 1993 provisions).

115. Further additions to Section 49 were added to cover possession of offensive weapons and bladed or sharply pointed implements in schools in 1996 ¹⁰ and in prisons in 2007 ¹¹.

116. In 2006 maximum sentences ¹² were increased to 12 months for cases under Sections 47 and 49 where tried summarily (that is, before a Sheriff sitting alone) and to four years on indictment (Sheriff and Jury or High Court proceedings).

117. In 2010 further slight amendments were made to Sections 47 and 49.

118. Section 37 of the Criminal Justice and Licensing (Scotland) Act 2010 came into force on 13 December 2010, defining 'public place' as 'any place other than domestic premises, school premises or prisons'. The definition of 'domestic premises' excludes those areas 'used in common by the occupant of more than one (such) dwelling', thus ensuring that common closes do now come within the ambit of the legislation. This effectively closed the loophole created by the 'Templeton' case.

119. The second amendment changes the wording of the defence laid down in Section 49 of the 1995 Act so that an accused has to 'show' (not prove) that he or she had 'reasonable excuse (rather than the previously stated 'good reason') or lawful authority'. The accused now has to 'show' that he had a 'lawful authority or reasonable excuse' defence in Section 47 rather than the previous wording which said the 'the proof whereof shall lie with him'.

120. As with all legislation questions of interpretation have arisen on a number of different matters:

What does 'have with you' mean?

121. It can mean in your hand, but also in a pocket, handbag, rucksack. In some situations the court has decided that having it in the side pocket in your car also comes within the scope of the Act.

What is a public place?

122. Generally defined as a place to which the general public has access. This would include open spaces - most obviously the street, a park, a playground, a multi storey car park. A decision in a Glasgow court in 2008 ¹³ held that a common close of a tenement building was not a public place because it had a security entrance system, albeit that the locking mechanism on the door was broken. The rationale behind that decision was that although members of the public could gain entry to the close it would or should be only on the invitation of residents of that building. [This was the law in 2009/10 - the period of our case review, although it has now changed as explained earlier in this chapter.]

What circumstances might establish 'lawful authority' or 'reasonable excuse' or 'good reason'?

123. In each case the facts and circumstances have to be weighed and assessed. A jobbing gardener had an axe in the driver's door pocket of his car. He claimed it was for his work as a gardener but since it was not stored in a tool bag in the boot of the car with the other tools but within the driver's door such a reason was not accepted by the court and he was convicted of a contravention of Section 49(1) of the Criminal Law (Consolidation) (Scotland) Act 1995. ¹⁴

What is an offensive weapon?

124. In interpreting this piece of legislation the courts over time and in the course of many judgements made it clear that an offensive weapon could belong to one of three categories:

• That made for use for causing personal injury and could be described as a weapon ' per se' (and in the context of knife crime these would include such items as swords, daggers and flick knives)
• That adapted for use for causing personal injury (which might include sharpened tools, broken glass, razor blades stuck in potatoes)
• That intended for use. This could be any item which in the context of the incident could be shown by the prosecutor to have been used as a weapon. Thus in the latter category ordinary everyday items such as a pencil, a pair of scissors, even a slipper could be an offensive weapon depending on the circumstances in which used

125. Thus prosecutors considering the evidence in a police report must assess the information in deciding whether the circumstances amount to a contravention of any aspect of the legislation. In addition there are evidential rules about police having good reason to carry out a search for an offensive weapon or a knife and these must be weighed in the balance too.

126. Some prosecutors take the view that the more serious statutory offence is Section 47(1) - offensive weapon charge. This is because the weapon itself is inherently dangerous; or it is altered in some way to make it a weapon; or because it is carried in circumstances that show an intention to use it as a weapon. In the last category that might involve some threatening gesture or remark. The penalty is exactly the same for a contravention of Section 49(1) that requires proof of possession only and no proof of intention to use it as a weapon.

127. One Sheriff with whom we consulted wondered why Fiscals chose to libel a charge that required more onerous proof when a Section 49 charge would prove more easily. Another took the view that prosecutors should carefully choose the correct section of the Act to reflect the circumstances of the case (and that was not always being done). In our case review we thought that, in general, the correct statutory charge was selected.

Using a knife

128. As became clear in the course of our case review, the ways in which knives are used to commit crimes are many and various. Many are Common Law crimes, that is to say judge-made law developed over the centuries. Crimes such as breach of the peace, assault, robbery and murder are all Common Law crimes.

129. The law has always taken a serious view of those who use weapons in the commission of crime. It is normal practice that the wording of the charge will reflect that a weapon such as a knife was used. A charge of assault with a knife might libel "stab him on the head and body with a knife". If injury occurred as a result of the way that assault was carried out with the weapon such injury, for example "to severe injury" or "to the danger of life" would be an aggravation to the crime.

130. In sentencing, the Judge or Sheriff would be expected to take account of the added seriousness of the crime brought about by the use of the weapon involved and the resultant injury.

131. Even where the knife was simply used to threaten but not injure it would still feature in the charge. Thus some breaches of the peace included such phrases as "brandish a knife" or similar wording depending on the facts and circumstances of the case. Such factors would be taken into account by the court in sentencing.

132. It is open to prosecutors to include charges of both using AND carrying a knife. A person who stabs someone in the street is guilty not only of the assault but also of the statutory offence of carrying the knife in a public place. Tactically prosecutors may consider that they should libel (that is, include in the charges) both even if they arise out of the same set of circumstances. One reason might be in the event of an acquittal of the assault charge (say for example because some witnesses did not speak up in court or a self defence was accepted by the court) then the court would still have a charge of possession of the knife in a public place (assuming it was in public) to consider.