Welcome to veto laws. Knife Crime update We're going to look out over the next 2030 minutes. Are some case law sentencing decisions on then some new offenses that are expected to come in in the next few weeks? Let's just remind ourselves of the offenses that were looking up. We're looking at Section one of the Prevention of Crime Act offensive weapons, where the defense will be lawful authority or reasonable excuse for possession. Section one A of the same act using a weapon and threatening or dangerous circumstances. Section 139 of the Criminal Justice Act 1988 Bladed article to which the defenses are use of work, religious reasons or national costume. The Section 139 a. Which is the use of a bladed article in dangerous circumstances. There is also an offence of possession of a bladed article on school premises under sexual 139 Capital A. Those of you who practice in big urban areas will not be unfamiliar with this offense in the youth court. Let's start with a recent case of Gary. I need to give you a summary of it, but I strongly advise that you read the whole judgment. In fact, what you might want to do is to open up, afford on your laptop for your iPod. Call it knife Crime Update August 2019. Put these notes in and then collect the cases that I'm going to refer to put those in. So you've always got immediate access to the law. But Gary is a bit of a game changer, as you're going to see on what we've got here is a defendant stopped on a Saturday morning. He says he's a plumber on an electrician's and he uses the butterfly knife. But work, it's it is love compartment. It's a Saturday morning. He's not on his way to work, is not on his way back from work, and he runs reasonable excuse under Section one of the prevention of crime out. So nothing remark was so far. Well, by the proof is upon him to demonstrate reasonable excuse or lawful authority on the burden is the balance of probabilities. So he used to make the court 51% sure that he has a reasonable excuse or lawful authority during the prosecution. If they're gonna win this match, I've got to prove and make the court shughur that he didn't have lawful authority or a reasonable excuse on the point about Gary. The high court say that reasonable excuse is far wider than simply saying, Oh, I had it for work to justify possession. So the court is going to need to look at the explanation. Why does he have this item with him? If you're looking at Section 139 then you're looking at whether he used it for work, whether it was part of a religious costume or some other reason or part of national costume. Having decided what the defendants explanation for possessing the for Big Night and Waas, the court has to decide whether it's reasonable. So the defendant has a subjective explanation. I've got it for work I put in my glove compartment. I forgot to take it out when I got home, that sort of thing. But the court has got to ask itself, and this is the critical thing. Whatever the explanation does, he nevertheless have a reason. A good reason for the item being with him at the time in the place that it was found. Gary doesn't have any evidence had been working that day, and that wasn't going to help. And the high court said that merely a juicing evidence that you carry the item regularly for work or you have it for some of the legitimate purpose doesn't found the defense. It's only going to found Lynn one. I have an explanation for possessing it. The mere fact he takes it to work doesn't of itself for possession of an offensive weapon prove that he has a good reason for having it now. So the court will want when it looks at whether or not he has a good reason. We want to ask itself, What sort of weapon is it? Where was it found? It's found in a tool box that's locked in the back of his van. Then it may well be that it's consistent with a work tool on. He's locked it in the back of his van. He clearly doesn't have any ill intent with it. It's the sort of thing that's well in keeping with a man doing his job. Let's look at the other extreme. He's got a machete down his trousers on his way to the real war match. Well, even if he's a gardener and he uses a machete for gardening. He's not going to be able to justify Wise, got it down his trousers on his way to the football on the high court, said the context of the offending, the temporal connection proximity, these Airil things that call need to look out. There are all important factors when you evaluate not why he's got it, but whether that is a good reason. The purpose of legislation is to outlaw possessing offensive weapons and bladed articles in a public place. And so the high court is putting the purpose of the legislation quite high up on the agenda when it comes to decide whether or no there is good reason for possession. So the fact that you can use the item for work as Mr Gary D doesn't describe doesn't in itself answer the question. You've still got to convince the court of the reasonableness of carrying the weapon or other article in the circumstances of the offence. Why have you got it? Is that reasonable? Those of the arguments that you're going to need to deal with if you're defending if you're prosecuting you may well say yes. I accept that you had it for work, but it wasn't reasonable toe have it in these circumstances. The case of Gary touches on Gary's convictions, it seems, although it's not possible to tell conclusively that he perhaps made an issue of his previous convictions during his trial, perhaps to demonstrate that he wasn't a violent man. But where somebody's purporting to be reasonable, they're trying to describe themselves as reasonable. Then they are at risk of open the door to character. Either Gateway have to create to stop by the Gateway F to correct a force and pressure, Uh, or they're making an issue of their character under Gateway A by making themselves out to be better than they are. So the high court decision Gary doesn't go as far as to say that if you run this defense of reasonable tohave it, you're going to put your for men. But if you really the judgment, there's there's a clear hint that that may be the way that things go a trial. The high court also said the court should ask whether or not the defendant perhaps had forgotten to move the item away from a public place. They don't justify this particularly. And if you go back to the case of sap t s, a P 2008 and you can find this at Archbold, the Crown Court version, Chapter 24 para 184 of course, merely may forgetfulness in itself is not a good reason for possessing a knife, any other weapon or, indeed, drugs. So although the high court says a court trial should ask itself this question about whether the defendants forgotten to move it, it's not clear whether or no that's actually good law. It may be the combination I use it for work I got home late last night are simply too tired to impact little kit. I went in and I had a shower. I went to bed. The combination of I've got it for work and I forgot to remove. It might work, but they live to the fact as a general proposition. I forgot I had. It does not negate possession, and it doesn't justify possessing an offensive weapon. Bladed article In the judgment, the court held that a tribunal of fact has a wide discretion in determining whether reasonable excuses made out. And here's this sting, an innocent purpose for having an offensive weapon in a public place does no equate to a reasonable excuse. Rather, the court is entitled to consider the necessity or immediate temporal connection between possession on purpose for which it is carried. In this case, the evidence did not lead to a finding of fact for that quotidian tusk of opening access panels and stripping aluminium she thing no other implement would serve ice. The evidence also included the attention of police being attracted since they suspected Mr Gary of smoking cannabis, and he was no on route to work on the 19th of May, the day of the offense. All of this must have contributed to the conclusion of the Crown Court on Innocent Purpose of Possession is not the same as reasonable excuse. And they conclude, under the 1953 act the questions applied to these facts or whether the appellant proved that it's more probable not that a reasonable man would think he had a reasonable excuse for carrying the butterfly knife. In the circumstances of that Saturday afternoon, on whether his assertion that the butterfly knife was used work were credible. So even if the defendant says yes, I had it because I use it at work in the circumstances which they are to miss. Found that may no be credible when he comes to justify in possession in the circumstances in which he's been stopped and arrested. So the defendant here couldn't establish his defense. Had he been able to establish a factual basis justifying possession, then the prosecution would have had to have made the court satisfied so that there sure in order to convict and where you have a defendant who no comments because there's a burden of proof upon him. He's got to assert this defense on the balance of probabilities. Then the prosecutor's going to say, Well, when you were into it at the police station, you knew you have the weapon. Yes, he knew why you've been stopped by the police and arrested. Yes, so you must have known why you had the weapon and you could have answered police questions at the time. Why are you saying this now? Where the adverse inference is likely to be drawn? It isn't a conclusion that the defendants guilty. It's the knock on effect for credibility. That's the problem. And if he's got to prove something on the balance of probabilities, making the court 51% sure. Then a lack of credibility is going to prevent him getting there at all on. The prosecutor doesn't have to do very much now to get a conviction. So let's move on to sentence a couple of cases here without adults. You probably know six months on summary conviction maximum of four years at the Crown Court years. The minimum sentences four months if it's a detention and training order because that's the minimum sentence permitted by law in any event, and it's a two year maximum sentence in the youth court. Knife crime is one of those areas of sentencing, where parliament has imposed a minimum mandatory sentence for a second conviction. It's not called the minimum mandatory sentence in the legislation is called the appropriate custodial sentence. But I'm going to call it the minimum mandate to resentence because it makes more sense. So it's easy to understand. So if your client is picked up for a second relevant offense, then he's looking at a minimum. Six months is an Addo, or a 1,000,004 months for the youth with a second or further offence. That takes us to the question of what? All of the relevant offense since, well, the relevant offenses are conviction under section one or one A of the Prevention of Crime Act Oh, under section 139139 a. Or 139 a. Or Section six of the ACT section six you're going to find out in a moment is the offense of possessing corrosive substance in a public place. And we'll come onto that in a moment where we look at what's in the pipeline. So whenever you're dealing with a second knife offense, you need to check whether or not this defendant is going to fall foul of the minimum sentence regime if you're defending. If providing your client is financially eligible, there should be no question but that you get a representation order. Let's look a recent case of white why it is authority for the proposition that you cannot suspend that minimum mandate return of imprisonment for a knife offense here. The defendant have pleaded guilty in the Magistrates Court, so he'd maximized his credit and he was committed for sentence. He was committed for sentence. He appealed that sentence. Mr Justice Baker sitting is the Court of Appeal, held as a matter of statutory construction. The law does not allow a court to suspend a minimum mandatory sentence course, have been spending sentences. But now at the Court of Appeal has given this judgment that's going to stop. And so if you're defending, a client needs to be warned that there is no power to suspend. The only hope is that you can prove exceptional circumstances to explain what he did, because that's the only get out the law allows. Next. We look at the case of Atkins, and this is the sort of case that you could come up against every day in the Magistrates court. Domestic Argument Indoors Spills Out into the Streets The defendant is a middle aged lady who's suffered from domestic abuse for many years. She's got a drink problem on the drug addiction. She's gone out into the street, and she's threatened her abusive partner with a knife. She's threatened to slash his bike tires. Unfortunately, she's terrified the lights out of people in the area, including a builder on a neighbor. A piercer was obtained. She didn't have very many convictions. She was clearly vulnerable. She was an alcoholic and she'd been involved in domestic violence. You might think in the circumstances that if you were defending your going to get up of mitigate on the basis that serious, that is, it crosses the custodial threshold. But given her vulnerabilities on relative lack of an decedent's, this is a case for a suspended sentence. The sentencing judge at the Crown Court Center to presume she appealed Lord Justice Holroyd gives the judgment. He said that the sentence was not wrong In principle, he said, We bear very much in mind the sad features of their parents life. We accept Mrs Board submission that it appears to be no coincidence. The criminal record only began around the town time when she entered the relationship with Cliff, the abusing partner. We also very mind she's never previously received a custodial sentence and has never had any form of sentence which she could benefit from the assistance of probation. All of those factors on which council quite rightly relies for you might have been thinking out, so they suspended it at the Court of appeal Buts Paragraph 20 world. As against those factors, however, the court cannot overlook three features of the case, which point to the conclusion that community order would not suffice in this case, the seriousness of the events which was aggravated, not mitigated by the fact she was heavily intoxicated, apparent reluctance or inability of the appellants to accept responsibility for her actions, as shown by her giving various more or less Xcor Patri accounts of the events without ever admitting she threatened Cliff with a knife on the fact that the assessments made of her resulted in her not be recommended for drug rehabilitation or alcohol treatment. And that's not a guideline case. But it's an indication that tough sentencing is unlikely to be overturned at the court appeal. Even in cases where you might have thought. Given this lady's history, a suspended sentence was in the offing. So let's look at what's around the cool now and the offensive weapons at 2009 team, which got the royal assent on the 16th of May of this year. It's not yet in force, but it's likely to come into force soon because a there's a general election and politicians, like look tough on crime on B. There's a lot of public concern already about knife crime and criminalising. More activities relating to knives and offensive weapons will go down well, generally with the public anyway, So the offensive weapons like 2019 is going to do the following That's of interest to criminal lawyers. It would criminalize the sale, delivery and possession in a public place of corrosive substances. Things like acid. Greater police, parents to search for corrosive substances. Knife crime prevention orders, which are a kind of knife as bone and have been widely dark, derided by professionals sale and delivery of knives to under eighteens will become criminalized on. Then they're going to be some new offenses relating to knives on amendments to current offenses and defense's, which will look out now. So the first matter is having it a corrosive substance in a public place. Corrosive substances defined as a substance that can burn the skin by corrosion. The defense will be either that the defendant comm proved that he had good reason or lawful authority for having the corrosive substance in a public place. He's just been to Wilkinson's and bolts and bleach to clean the toilet, for example, as opposed to he went into a nightclub with a bottle of Harvick in his man bag. All he has to prove that he had the substance with him for use at work. Perhaps he works for a drain, mumbling, I'm bunking business. Maximum sentence. Six months on summary conviction for years on indictment. But the offense is added to the list of relevant convictions that triggered the minimum mandatory sentence that we've just looked at for knives. Allowing for particular circumstances to be argued that relate to the offense, the previous offense or the offender, which would make the minimum mandate re sentence unjust in the circumstances. There are going to be some amendments under Part four of the act to the definition of flick knives. There's going to be an extension to the list of items that are offensive per se. Section 50 is going to change the test currently applied in the offenses relating to using a weapon or bladed in article. In dangerous circumstances, there will be an objective test. The threat must be such that a reasonable person exposed to the risk would think that they were risk of immediate physical harm. Previously, the prosecution had to prove the defendant acted in such a way, Uh, that there is an immediate risk of serious physical harm to the victim. Now it's a reasonable person exposed to the risk would think that they were at risk of immediate physical harm. So it's hypothetical rather than actual. It's also going to become, by virtue of section 52 on offense to threaten with an offensive weapon in a private place. Common phenomena to go to the Magistrates court. There's been an allegation of domestic violence. One partner has brandished a knife or even held a knife to the other one's throat. The prosecution just charge It is a common assault. Well, once this section comes in, it will be an offence if whilst that person A is in a private place there unlawfully and intentionally threatened another person, be with an article or a substance to which this subsection applies and does so in such a way that there is an immediate risk of serious physical harm to the person they threatened ongoing that will carry him the six months summary ONI sentence four years on, indictment on and it will become relevant offense for triggering the minimum mandatory custodial sentence. Well How am I gonna know where all of this comes into force? Well, your final slide shows a screenshot off www dot legislation doctor about UK. That's where you can find acts of Parliament. If you put the name of this act the Offensive Weapons Act 2019 into the search engine, it gives you options status, your instruments, public acts, general acts, all sorts. Click on statutory instruments. Click search when the act is implemented, as opposed to getting the royal assent because it's got the already then it bought in by what's called a commencement order. A commencement order is a statutory instrument. If your search reveals no commencement order for the Offensive Weapons Act and you're confident we've done the search properly, then it's no enforce. But if you click on a commencement order shows up, click on the order and open the arms, it will have a front. She It will have some wording showing the its coming into force, and it'll indicate which sections of the act coming into force on when, And there's also your ones these days, something called an explanatory note that's in there for non lawyers looking at statutes, but they're equally helpful to lawyers, particularly if you're rushing you young that time to think things through slowly. Sections of the act coming sometimes a few at a time. So the more recent the commencement order because they listed commencement order 123 and so on. So pick the clients in order with the highest number. When you click on that and you go to the back, it will show you which other sections of the act came in and when. Because if you, with your prosecutor defend what's important to know with new criminal legislation is that the police haven't charged on offense before. It became an offence, for example, the threatening somebody with a weapon in private. Let's imagine it comes into force tomorrow. You go to the police station tonight, and they charged him with the offense up today's date. It's no on offense as up to die under this act, so they're charging with offense that wasn't known to law until midnight. So no knowing where to find commencement warders for this act is important. But equally knowing where to find commencement orders generally will also help you, and you might want to collect the case is packed. Make a link to the parliamentary website so that you've got all this information at your fingertips so that when you're in court or you're advising at the police station, what have you you confined this simply by tapping on the screen of your iPad or laptop?
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