Offensive weapon in a public place; Prevention of Crime Act 1953, s. 1; Criminal Justice Act 1988, s. 139; maximum sentences; sentencing guidelines; offender's intention, circumstances of offence, nature of weapon; aggravating and mitigating factors; Crime and Disorder Act 1998, ss 37 and 128; Children and Young Persons Act 1933, s. 44

Any person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon shall be guilty of an offence.

Lord Justice Rose, giving the judgment of the court, said that the task of issuing sentencing guidelines in such cases was not made easier by the fact that the maximum penalty for having an offensive weapon in a public place, contrary to s. 1 of the Prevention of Crime Act 1953, had been increased in 1996 from two to four years' imprisonment, but for having a bladed article in a public place, contrary to s. 139 of the Criminal Justice Act 1988, the maximum penalty was still only two years' imprisonment.

It was not obvious to the court why the maximum sentences should be different. For the avoidance of doubt, this judgment concerned the former offence (Offensive Weapon in a public place, contrary to s. 1 of the 1953 Act).

As with all guidelines, the guidance was not intended to act as a straitjacket to sentencers. Where a weapons offence was committed in conjunction with another offence the usual considerations in relation to totality would apply.

Their Lordships agreed with the Sentencing Advisory Panel that in ascertaining the seriousness of an offence it was necessary to consider the offender's intention, the circumstances of the offence and the nature of the weapon involved. As to intention there were, in their Lordships' judgment, three specific factors which might aggravate the offence:

(2) the offence might be motivated by hostility towards a minority group which might give rise to a racial aspect: see s. 28 of the Crime and Disorder Act 1998; and

As to the circumstances of the offence, those might be aggravated if its commission took place at particularly vulnerable premises such as a school, a hospital or other place where vulnerable people might be present; likewise, if carried out at a large public gathering, especially where there might be a risk of disorder, on public transport, or licensed premises or at premises where people were carrying out public services, such as at a doctor's surgery or social security office.

As to the nature of the weapon, some weapons were inherently more dangerous than others but the nature of the weapon would not be the primary determinant of the offence because a relatively less dangerous weapon, such as a knuckle duster or billiard cue, might be used to create fear and such an offence might be as serious as one where a more obviously dangerous weapon was used.

On the other hand, light might be shed on an offender's intention if he was carrying a weapon which was offensive per se, such as a flick knife or butterfly knife designed or adapted to cause serious injury.

Mitigation was to be found if the weapon was carried only on a temporary basis and there might also be mitigation from personal factors, cooperation with the police and a timely plea of guilty. A defendant with previous convictions for violence with an offensive weapon who was convicted of carrying a particularly dangerous weapon could expect to receive a sentence at or near the statutory maximum.

In relation to an adult offender of previous good character, the custody threshold would almost inevitably be passed where there was a combination of dangerous circumstances and actual use of the weapon to threaten or cause fear. The nature of the weapon and other aggravating or mitigating factors would bear on the length of the term. Custody might still be appropriate, depending on the circumstances, where no threatening use was made of the weapon.

Alternatively, depending on the circumstances, there would be cases where there was none of the aggravating features identified above, where no threat was made and where the weapon was not particularly dangerous so that the custody threshold might not be passed and a community punishment at the top end of the range might be appropriate.

So far as young offenders were concerned, the courts of course would have regard to their statutory duty under s. 37 of the Crime and Disorder Act 1998 to prevent offending by young people and under s. 44 of the Children and Young Persons Act 1933 to take into account the interests of a young offender. It would invariably be appropriate to obtain a pre-sentence report before sentencing.

It was necessary for a sentencing court, in ascertaining the seriousness of an offence of having an offensive weapon in a public place, to consider the offender's intention, the circumstances of the offence and the nature of the weapon involved.

The Court of Appeal, Criminal Division, so held in issuing sentencing guidelines and allowing an appeal by Sarah Jane Poulton against sentences imposed in November 2001 at Hove Crown Court on her plea of guilty to attempted robbery, for which she was sentenced to three years' imprisonment, and having an offensive weapon in a public place, contrary to s. 1 of the Prevention of Crime Act 1953, for which she was sentenced to a concurrent prison term of 12 months. Poulton having served the equivalent of 22 months, the Court of Appeal substituted a 12-month probation order for the remainder of the term.

The appeal was also allowed of Mario Rolando Celaire, against sentences imposed on 12 July 2002 at Inner London Crown Court, on his plea of guilty to having an offensive weapon and conviction of dangerous driving for which he was sentenced respectively to 12 and six months' imprisonment to run consecutively, making a total of 18 months. He was also disqualified for driving for three years. The sentence of 12 months was reduced to nine months, making a total of 15 months' imprisonment

The carrying of weapons has become an issue of considerable concern over recent years. See, for instance, the Sentencing Advisory Panel's comments: Sentencing Advisory Panel Press Notice 3/99 Offensive weapons 3.2 In order to find out how offensive weapons offences are dealt with, it is necessary to examine the statistics for possessing an offensive weapon both as the principal offence and as a non-principal offence. An offence is always recorded as the principal offence when it is the only offence of which the defendant is convicted. When the defendant is convicted of two or more offences, the principal offence is the one for which the heaviest sentence is imposed. If the same penalty is imposed for two or more offences, the principal offence is the one for which the statutory maximum penalty is the most severe.

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