Criminal law: Criminal Justice Act 1988 (Offensive Weapons)

On 6 April this year, new legislation to control curved bladed swords came into force. Since that time there has been a great deal of confusion over the intended interpretation of the statute.

The Criminal Justice Act 1988 (Offensive Weapons) (Amendment) Order is an addition to section 141 of the act and adds a new category to the existing weapons legislation. Problems have arisen where those in the legal profession, and especially police officers, are not familiar with martial arts terminology, sword-makers nomenclature, the background to martial arts training or that of re-enactment organisations.

This article is an explanation of the various facts concerning this statute.

DefinitionSection 141 of the Criminal Justice Act 1988 already lists a number of weapons that are prohibited within the terms of this act. Under 1(r), a curved bladed sword has been added to the list and is described as follows: ‘A sword with a curved blade of 50cm or over in length; and for the purpose 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’.

This definition refers to any curved bladed sword, not a specific type. It includes such weapons as a cutlass, sabre, falchion, scimitar or other curved sword, provided the curved blade is 50cm overall, from handle to tip of blade. The original intention appeared to be directed at Japanese swords. However, it now encompasses any sword with a curved blade. There is no inference that a halberd or sickle is included in this legislation, as the wording specifically says ‘sword’.

This definition does not specify the material the blade should be made of. Therefore, depending on the interpretation of the word ‘blade’ (dictionary meaning: the flat cutting edge of a knife or other tool or weapon) it could even include wood, alloy, carbon fibre, or plastic. Neither does the definition specify the degree of curvature of the ‘blade’, therefore this too is also open to variable consideration.

PossessionIf a person is found in possession of a blade described above, without recourse to the defences described below, there are specific reasons under section 141 of this statute that complete the ingredients for an offence.

The reasons for possession that complete the offence provide that: ‘Any person who manufactures, sells or hires, or offers for sale or hire, exposes or has in his possession for the purpose of sale or hire, or lends or gives to any other person, a weapon to which that section applies, shall be guilty of an offence. The importation of any such weapon is prohibited’. The definition does not include possession by itself; it must be possession for one of the above-described purposes. If a person is simply in possession of the weapon, depending on circumstances, an offence may be apparent under some other enactment (ie section 1 of the Prevention Of Crimes Act 1953).

Defences and exemptionsOnly two defences are listed within this statute. In both cases they are given as defences upon being charged. The first defence deals with people such as sword collectors, while the second defence deals with persons using such weapons in a lawful activity as defined in this legislation. When this statute was being proposed, there was an inference that there would be exemptions. In fact, many collectors and martial arts practitioners are still under the misapprehension that there are exemptions within this legislation. There are no exemptions (dictionary meaning: freedom from obligation or liability) for martial artists or anyone else, but there are defences (dictionary meaning: justification by way of evidence).

Defence relating to collectorsThe defence in the original statute stated ‘in respect of any conduct of his relating to a weapon to which section 141 of the Criminal Justice Act 1988 applies by virtue of paragraph 1(r) to show that the weapon in question was made in Japan before 1954 or was made in Japan at any other time according to traditional methods of forging swords’.

However, in late summer of this year the word ‘Japan’ was replaced with a broader term that meant swords made anywhere in the world could be covered, provided they were made in the traditional method.

The word ‘conduct’ in the previous paragraph refers to the act of manufacturing, selling, hiring etc (as described above). Therefore, a person who has a curved bladed sword described under paragraph 1(r) of the statute can use the following defence: that the sword in their possession was made before 1954 (however it was made), or was forged traditionally at any other time – the amendment (described above) now means that this can mean swords made anywhere in the world, but still relates to traditional Japanese methods of sword manufacture. There appears to be no defence for collectors of curved bladed weapons of Chinese, Indonesian, Korean, British or other origins. This defence particularly applies to collectors of traditional Japanese swords. This wording of course precludes anyone collecting replicas of swords fashioned on the Japanese style but not in the traditional manner, especially the cheap imitations bought by thugs and street gangs.

A sword made according to the traditional manner relates to a blade made of a lamellar of steels and metals, forged, beaten and folded into a blade, then highly polished. A sword made of one piece of steel or other metal is not one made in the traditional way. However, only a sword appraisal expert, or possibly a metallurgist, could quantify the authenticity of such a blade. Other evidence such as documentary evidence in terms of bills of sale, sword lineage, or expert opinion may help to determine the validity of the evidence.

Defence relating to sport and historical re-enactmentThe second defence for a person charged under this act is a little more complex: ‘In respect of any conduct of his relating to a weapon to which section 141 of the Criminal Justice Act applies by virtue of paragraph 1(r) to show that his conduct was for the purpose only of making the weapon available for the purpose of the organisation and holding of a permitted activity for which public liability insurance is held in relation to liabilities to third parties arising from or connected with the organisation and holding of such an activity’.

The term ‘permitted activity’ refers to historical re-enactment or sporting activity. Sporting activity is defined as the practice of a sport which requires the use of weapons described in paragraph 1(r) of the statute.

The above relates to possession in respect of manufacture, sale, hire etc, for the purpose of a permitted activity, which includes: (a) a sport requiring the used of weapons described in 1(r), or (b) historical re-enactment requiring the use of weapons described in 1(r), provided in both cases the organisation has the appropriate public liability insurance. This means that such organisations can sell the weapons to their members or allows shops to sell the weapons to bona fide members of such organisations. The burden of responsibility rests with the person selling the weapon and not the person buying. In Japanese martial arts there is a skill called Iaido which requires the use of either a katana (traditional sharp sword) or a Iaito, which is usually a blunt alloy replica of the samurai blade. This type of skill offers an acceptable defence. In fact, bona fide martial arts and historical re-enactment organisations can still use any sword (not just Japanese swords) as long as they fit the criterion of the defence.

Old guardThere are two other aspects that preclude weapons from this statute. The first related to any sword purchased before this act came into force, the second refers to antique swords (over 100 years old) wherever in the world it was made. Both categories are exempt.

The legislation is clearly aimed at wholesalers and retailers, but makes certain defences available for certain groups indulging in bona fide activities. It also targets the cheaper end of the market, where there is greater access to such weapons by gangs and thugs.

In the Knives Act 1997, the term ‘defence to a charge’ is used, in section 139 of the Criminal Justice Act 1988 the term ‘an accused has a defence’ is used, and in section 141 of the Criminal Justice Act 1988 it states ‘a defence to a charge’. However, in this present addition to the legislation, it clearly states ‘it shall be a defence for a person charged’. This, of course, has quite different connotations and is a matter worth some consideration.

Michael Finn, Elite International, Security consultant and ex-Met police officer.