The Case For Criminalizing Carrying A Knife In Public In England And Wales

Imagine that a decision has been made to repeal all existing criminal laws in England and Wales and, simultaneously, to introduce a new criminal code. The rationale for this is that the existing criminal law has developed haphazardly, as legislators have used it broadly and casually as a regulatory tool. This, according to some, has resulted in overcriminalization. Parliament has decided that we need a criminal code. A committee has been established to draft the new criminal code.

You are one of a group of researchers employed by the committee to do the following task. Draft a report which assesses the case for criminalizing one of the activities in the list below.

The list has been constructed from a public consultation exercise conducted by the committee designed to elicit public views on what conduct should be criminalized. Almost all of those who took part in the consultation exercise proposed the criminalization of conduct such as murder, theft, robbery and rape. However, a range of other suggestions were also made and, using these, the committee has constructed the list.

U.K. Legislations on Carrying a Knife in Public

The need for a new criminal code is certain and long overdue. The current criminal law has advanced haphazardly and lawmakers have utilized it broadly and casually as a regulatory tool. The result has been over-criminalization as unreasonable offences have been added to the criminal code. One such area that has been subject to this overuse of legislations is that of knife legislations. Provisions that make it a crime for one to carry a knife without good reason have not only lacked legal foundation with regard to elements of a crime, but have also failed to accomplish their purpose. They have been used to propagate injustice. The provisions are a true reflection of what a haphazardly developed legislation.

The legislation which governs the transaction or possession of knives in England and Wales is the 1959’s Restriction of Offensive Weapons Act (later revised in 1961) (ROWA). Section 1 of the Act provides that:

Any individual who hires, sells or even manufactures, or offers for hire or sale or exposes or possesses with the aim of selling or hiring or lending or giving it to another—

• any knife containing a blade which flicks out automatically by the pressure of a finger applied to a button, spring or anything in or attached to the knife’s handle, sometimes referred to as a flick knife or;
• any knife with a blade, which is freed from the handle by the gravitational force or any other force and which, after release, is referred back to place by either a lever, button or other device,

The Criminal Justice Act further expounds on this position as it relates to being in possession of knives in areas considered as public. Section 139 of the Act explicitly criminalizes the possession of any article with a blade or that which is sharply pointed (exclusive of only a pocketknife) in a public shall be guilty of a criminal offence. The provision encompasses a folding pocketknife with the cutting edge of its blade at least 3 inches long. Subsection 4 of the provision makes it clear that the only defense for such a person would be good reason or authority under the law to be in possession of such an article in a public place. It will be the accused person’s burden to prove these defenses.

The definition of “public place” has been taken to imply anywhere the people are expected to be because it is their legitimate right and thus could be any populous area within England and Whales. As for a rather unpopulated or remote area, what amounts to a public place can be: a National Park; public footpaths; an organized wilderness event or gathering or event; bridleways; forestry Commission land let out for public enjoyment; any area where a person can walk or camp without necessarily asking for permission from a landowner. 

Additionally, if you are found in illegal possession of a knife, even if it is an imitation, you will be detained and prosecuted according to the police department. Claiming it was for security purpose or it was carriage on behalf of someone else is not enough. 

Ideally, what this means is that if one chooses to carry what is perceived to be a weapon, he or she put his or her future in danger. If one chooses to be in possession of a knife in public, then there is an assumed risk the person takes. If the risk taker is arrested and charged, he or she can only defend himself or herself by showing that there was a ‘good reason’ as to why he or she was found with the knife. Still what amounts to good reason is left on the discretion of the court.

Critical Assessment of the Knife Legislation

In the face of it, one can easily see that the legislation is repugnant and inconsistent with the dictates of justice. That one can find himself or herself in a possible contravention of the law by possessing a knife is unimaginable. Therefore, there are three instances that prove the unreasonableness of this crime. First, it is the fact that it is a paradox legislation which legalizes the selling and illegalizes the purchase. Secondly, it fails on the elements of a crime as it lacks the mental element test. Finally, it fails on the purpose as to which it was formulated.

The paradox in knife legislation is the fact that while possession is illegal, selling is legal. Talking to Robby, a U.K. citizen, on his position on the issue, he was bemused that there are such legislations restricting the purchase of knives. “I know nothing about such legislations.” He admitted. “In fact, a few nights ago, I was in need of a lock knife for decorations. I was hosting a party and I needed a lock knife for some decorations. So I went to the high store across the street and purchased a lock Knife. I did not know that I could be found on the wrong side of the law by purchasing something I needed.” He was shocked by how lucky he was for not coming across the police.

The knife legislation is an unequivocal proof that the existing criminal law has developed haphazardly as legislators have used it casually and broadly as a regulatory tool. Ideally, when people purchase products from reputable high street stores, they trust that the store is of integrity and only sells products or goods that do not have the stance of being illegal. There is a presumed belief by the layperson that all the goods in the store are legal. The paradox in knife legislation is the fact that while possession is illegal, selling is legal. Electricians, decorators and campers, among other group of persons, all buy lock knives but do not know that its possession in the public is illegal.

The Criminal Justice Act, Section 139 describes a lock knife as a folding knife which is secured in an open position by a locking device and can only be released from the open position by the pressing of a release button. The ambiguity of the illegality of a lock knife is certain. It does not matter whether the blade is really open or locked when the arrest takes place. It is enough that one has been found in possession of the lock knife in a public place.

Tracing back to why the knife legislations have been enacted, one can perceive the enactment to be a rush. The intention was to reduce knife crime incidences resulting from possession of knives in public. However, the results really leave much to be discerned on whether this goal is being achieved. Ambulance service data put together in 2009 revealed a slow surge in occurrences of knife crime in the UK despite the knife laws. Factually, there is a greater chance that a police officer will arrest an innocent buyer of the knife because, just like Robby, such will have a more overt approach to the possession of the item. The streetwise gangster knows the legal position of the situation and will forge some convert methods of keeping the knife out of sight until it is required.

It is A Paradox Legislation

Last year, Woolworths disclosed that the utility knife it was selling was in compliance with the plausible trading requirements in conjunction with having strict under-age acquisition procedures. While this is admirable on the face of it, the reality is astonishing and unforeseen. The so called ‘utility knife’ is pretty the perfect gang weapon. It can be easily purchased, it is compact and thus can be easily concealed, has a blade that is sharp, replaceable and can be disposed of after propagating the protected crime and locks firmly in place.

From a legal standpoint, for an act to be considered criminal, there are to elements that need to be proven: the mens rea and actus reus. This is a fundamental principle of criminal law. in a crime, there is both the mental element and the physical element. Mens rea is the mental element and connotes that the person is aware of the fact that his or her conduct is criminal and actus reus is the physical element which is the act itself. Thus for a crime to suffice as one, there has to be a gully mind or a criminal intent and the act itself.

The case of ‘carrying a knife in public without good reason’ fails the test of this principle of criminal law and thus does not stand out as a criminal act. As will later be established, proving ‘good reason’ is almost impossible before the court if charged with the crime of knife possession in public. The possession of a knife is not enough. It should also be seen that the possessor had the intention to commit a crime. Since that cannot be told by merely being in possession of a knife, there is no mens rea aspect in the crime and if there is, it is almost impossible to prove since the accused person is the only one who can tell why he or she is in possession of the knife.

As a matter of fact, the crime contradicts the irrebutable presumption of innocence until proven guilty. It is a crime set with the belief that every person walking with a lock knife in public is likely to be in a mission to commit a felony. Instead of it being the prosecutor’s burden to prove that the accused person was in a mission to commit a felony, the burden is laid on the suspect to prove that his or her possession of the knife in public was for ‘good reason.’

The burden of proof for the crime of knife possession is raised in the part of the accused person. Instead of the ‘reasonable excuse’ provided for by the Prevention of Crimes Act 1953, Section 139 of the Criminal Justice Act 1988 requires one to show good reason. The burden here is greater and the interpretation much tighter such that it is unlikely one will convince judges as to why he or she was in possession of the knife. Forgetting that the knife was there is no excuse. That it is an instrument of work will not vindicate the accused and it will only be up to the court, in its discretion, to determine whether the explanation warrants an acquittal. Finally, explanations of the lock knife being a part of a national costume or religious instrument will never pass the ‘good reason’ test. The proof of good reason is therefore highly unattainable.

Notably, statutes may impose criminal liability without necessarily designating mens rea. However, this is only in cases of strict liability, where the legislators purposely omit the aspect of criminal intent because the suspect owes to conduct himself or herself in a certain way to ensure that a particular act does not occur. In such cases, a voluntary act is enough to be counted a crime. To the contrary, the crime of possession of a knife in a public place does not entail any elements of strict liability. It is supposed to have the act itself and the guilty knowledge and willfulness. It lacks on the latter and thus does not warrant to be considered as a crime.

Conclusion

Indeed the legislation on knife regulation does not pass the test for rationality and appears to be prima facie unjust. A number of countries do not have the knife legislation that restricts possession in public places. Perhaps it is because, just like the U.K., they do not really need it. Limiting knife related crimes is not a legal issue but rather a social problem. Believing that knife legislation which restricts possession in public would reduce incidences of knife crimes is pointless. The move fails on the elements of crime test, fails on purpose and is a paradoxical legislation.

Books

Ashworth, A., & Horder, J. 2013. Principles of criminal law. Oxford University Press.

Keating, H., Cunningham, S. K., Walters, M. A., & Elliot, T. 2014. Criminal law: text and materials. Sweet & Maxwell.

Williams, G. L. (2010). Criminal law: The general part. Stevens.

Statutes

Criminal Justice Act 2003, (c. 44)

Prevention of Crimes Act 1953

Restriction of Offensive Weapons Act 1959.

Websites

Finn, M. 2009. Law on lock knives is in need of re-examination. The Law Society Gazette, Retrieved from https://www.lawgazette.co.uk/analysis/law-on-lock-knives-is-in-need-of-re-examination-/49253.article

Layard, A. 2014. “A Right to Public Space?” The London School of Economics and Political Science. Retrieved from https://blogs.lse.ac.uk/constitutionuk/2014/03/31/a-right-to-public-space/

Police.UK, Possession of Weapons, Retrieved from https://www.police.uk/crime-prevention-advice/possession-of-weapons/

Rojer, J. 2018, The laws around when you can carry around a knife and when it is illegal Retrieved from https://www.chroniclelive.co.uk/news/north-east-news/laws-around-you-can-carry-14452340

Xavier, T, 2017. UK Knife Laws: Restrictions, Prohibitions, & What’s Legal to Carry. Retrieved from https://morethanjustsurviving.com/uk-knife-laws/

Reports

Disabled Caravanner, 61, prosecuted for having Swiss Army knife in his glove box to cut up fruit on picnics, Daily Mail, 15 April 2010

Fitzgerald, J. 2000. Knife Offenses and Policing. Bureau of Crime Statistics and Research.

Sikhs protest against knife rules, BBC News, 8 April 2009

UK Knife Law, Chris Hughes Multi Activity Services (CHMAS) Ltd.

Journal

Gray, J. T.; Walker, A. 2009. "At the sharp end": does ambulance dispatch data from south Yorkshire support the picture of increased weapon-related violence in the UK?" Emergency Medicine Journal. 26 (10): 741–742. doi:10.1136/emj.2008.067298. ISSN 1472-0213. PMID 19773502.