House of Commons - Home Affairs Committee

Knife Crime - Home Affairs Committee Contents

Memorandum submitted by Liberty

ABOUT LIBERTY

Liberty (The National Council for Civil Liberties) is one of the UK's leading civil liberties and human rights organisations. Liberty works to promote human rights and protect civil liberties through a combination of test case litigation, lobbying, campaigning and research.

LIBERTY POLICY

Liberty provides policy responses to Government consultations on all issues which have implications for human rights and civil liberties. We also submit evidence to Select Committees, Inquiries and other policy fora, and undertake independent, funded research.

Liberty's policy papers are available at

http://www.liberty-human-rights.org.uk/publications/1-policy-papers/index.shtml

INTRODUCTION

1. Knife crime has had a devastating effect on individuals, families and communities. The latest crime statistics (the first to collate data on knife crime) showed over 20,000 knife crime offences, against a general and significant fall in the number of crimes, including violent crimes. While the British Crime Survey suggests that "knife enabled" crime has remained stable over the past 10 years,[17] the Youth Justice Board has reported a significant increase in the number of young people carrying weapons since 2002.[18] Liberty shares the high levels of public concern about levels of knife crime. It is, indeed, clear that human rights law requires states to take reasonable steps to protect people from serious and violent crime.

2. Liberty welcomes the opportunity to respond to the House of Commons Home Affairs Select Committee inquiry on important issue. We are particularly pleased that the Committee has asked for evidence on the causes of knife crime. We are also pleased that the Committee is considering the important responses to knife crime which are outside of the criminal justice system. Liberty agrees that education, working with parents and community projects must be an important part of the response to this significant social problem. We would, in particular, highlight the work of charities like Kids Company which provides practical, emotional and educational support to vulnerable inner-city children and young people.[19]

3. Criminal justice measures must, of course, be a part of the response to knife crime. Indeed, human rights law requires states to investigate and prosecute serious and violent crimes. There is an obvious political appeal to the creation new criminal offences and police powers but, as we demonstrate in this brief response, there are already many criminal offences and police powers to tackle knife crime. In light of these we would urge caution before proposing yet more criminal offences and police powers. In Liberty's view new criminal offences and police powers should not only be proportionate but also designed and restricted to meet a specific need. In this response we also highlight the dangers of over-use of police powers and, in particular, stop and search. Used sparingly, stop and search can be a valid and useful tool of policing; used excessively, it can alienate more law abiding people than it protects.

EXISTING CRIMINAL OFFENCES AND POLICE POWERS

4. Under existing law it is a criminal offence: to have an article with a blade or point in a public place;[20] to have an article with a blade or point on school premises;[21] to sell a knife or article with a blade or point to a person under 16;[22] and to market a knife in a way which is likely to encourage violent behaviour.[23] In addition to the offences of possession, sale and marketing of knives, it is, of course, an offence of the highest seriousness to cause or threaten harm or death with a knife.[24] The sentencing framework for those convicted of knife-related offences is discussed at paragraph 11.

STOP AND SEARCH

5. Section 1 of the Police and Criminal Evidence Act 1984 (PACE) allows a constable to stop and search any person or vehicle for prohibited articles if he or she has reasonable grounds for suspecting that he will find prohibited articles. The threshold for reasonable suspicion is relatively low and can be satisfied "without specific information and intelligence and on the basis of some level of generalisation stemming from the behaviour of a person ... Where there is reliable information or intelligence that members of a group or gang habitually carry knives unlawfully and wear a distinctive item of clothing or other means of identification to indicate their membership of the group or gang, that distinctive item of clothing or other means of identification may provide reasonable grounds to stop and search a person".[25]

6. In addition to the power of stop and search with reasonable suspicion, police have additional powers to stop and search without suspicion. Section 60 of the Criminal Justice & Public Order Act 1994 (CJPOA) permits police officers to stop and search individuals for weapons without suspicion following the designation of an area based on reasonable belief that serious violence may take place or that persons are carrying weapons. The authorisation can initially last for a period of up to 24 hours and can be renewed for a further six hours. Section 44 of the Terrorism Act 2000 (TA) allows similar searches to occur following designation of an area when the designation is considered expedient for the prevention of acts of terrorism. Liberty does not take issue with exceptional police powers per se. We believe it is appropriate and proportionate to allow the police limited and targeted powers enabling stop and search without individual suspicion to take place to deal with a specific threat. Problems can however arise as a consequence of excessive authorisation leading to a general power of stop and search without suspicion.

7. Excessive authorisation of section 44 powers has been widely reported, however Liberty is concerned that section 60 authorisations may be going in the same direction. In September 2008 we were contacted by a concerned member of the public following a knife crime operation by Greater Manchester Police.[26] The operation consisted of police using airport-style metal detectors to scan for illegal weapons at random. When questioned about the legal basis of the operation a police spokesperson said that the operation had been carried out under section 60 CJPOA and was "all about reassuring the public". To rely on reassurance and deterrence as justification for random searching without specific intelligence is extremely questionable. This is not least because reassurance and deterrence are not valid triggers for section 60 authorisations. Liberty accepts that authorised stop and search without suspicion can be a useful tool for police in their efforts to reduce knife crime.[27] We do however believe that use of s60 powers must be tightly monitored to ensure that use remains within existing legal limits. This means, for example, that operations should not be authorised on the basis of assumptions about public reassurance and deterrence.

8. Past policing mistakes in this area must not be repeated.[28] In addition to lessons learnt from the use of the infamous SUS laws of the 1980s, lessons in this area can be learned from the more recent experience of s44 stop and searches. Section 44 has, for several years, provided a rolling blanket authorisation over central London. This approach led the Metropolitan Police Authority to state in written evidence to this Committee in 2004 that:

This evidence is telling. Overuse of stop and search without suspicion (whether in the context of counter-terrorism or knife crime) can be dangerously counterproductive. This has been recognized by Laura Richards, a criminal behavioral psychologist and the former head of the Metropolitan Police's Homicide Prevention Unit who warned against the overuse of stop and search without suspicion in fighting knife crime in a radio interview earlier this year:

9. It is also worth remembering that use of stop and search without suspicion does not take place in a vacuum. Extended police powers in relation to the young have been a feature of the past few years. The Anti-Social Behaviour Act 2003 (ASBA), for example, created dispersal powers which allow police and community support officers to disperse groups and remove under 16s to a place of residence.[31] Authorization for dispersal can last up to six months and includes the power to demand that those not resident in the area leave the locale immediately and do not return for a further 24 hours. Powers such as these, when combined with stop and search without suspicion, can allow for a heavy-handed approach to policing. Young people in certain areas may frequently be coming into contact with police (despite no reasonable suspicion of criminality) as a result of a number of broadly drafted extended policing powers. If theses powers, taken as a whole, are not used proportionately and with restraint they may well increase levels of distrust and, as has been seen in relation to section 44, make the already difficult task of effective policing even harder.

10. In addition to frequency, the manner in which stop and searches are carried out is extremely important. As such, it is vital that those permitted to carry out stop and searches are appropriately trained. Earlier this year Paul McKeever, head of the Police Federation, called for stop and search powers to be extended to Community Support Officers (CSOs).[32] Liberty would guard against the extension of section 60 powers to CSOs. While CSOs serve a useful community policing function, they do not receive the same level of training as full time members of the police force. As such, we believe that their powers should be limited to reflect their largely non-confrontational community engagement role. Stop and search without suspicion is a highly delicate policing function which requires experience and expertise; the difficult history of stop and search in the UK serves as a warning for what can happen when stop and search is not handled with the sensitivity it requires.

SENTENCING

11. There have recently been a number of calls for automatic or presumptive custodial sentences for those caught carrying knives.[33] Liberty would urge caution against knee-jerk and blanket sentencing reform. Under existing law, those convicted of knife possession in a public place can be sentenced to up to four years imprisonment.[34] Discretion is built into the sentencing process so that the sentence starting point for those convicted of possession but who did not use or threaten use differs to those who, for example, threatened use. Certain other factors can "aggravate" the offence of knife possession, such as: possession near a school or hospital, the offender operating in a group or gang, or possession of a particularly dangerous weapon.[35]

12. Those who have been convicted of using knives to hurt others can, of course, receive much longer sentences. Causing grievous bodily harm with intent, for example, can attract a sentence of up to 16 years imprisonment. Knife use in assault offences is treated as an aggravating factor, increasing the offence seriousness and the culpability of the offender which is then reflected in the severity of the sentence. Those convicted of murder are, of course, subject to the mandatory life sentence.[36]

13. There have been recent amendments to sentencing practice for knife possession. In 2007 Parliament increased the maximum sentence for those convicted of knife possession from two to four years and as of June 2008, cautions for over 16s found in possession of a knife were effectively abolished. An amendment to sentencing practice has also been made through the courts. The Court of Appeal decision in Povey[37] recommended that for knife-related offences committed by adult offenders, the sentencing guideline should be applied at most severe end of the appropriate sentencing range. The Sentencing Guidelines Council has published a note explaining how the sentencing guidelines should be interpreted as a result of the Povey decision.[38] The note states that a conviction for knife possession for a first time adult offender where the knife is not used to threaten or cause fear will attract a sentencing starting point of 12 weeks custody. Possession in a "dangerous circumstance" but where a knife is not used to cause or threaten fear will attract a starting point of six months in custody. The Council notes that this will result in many more offences crossing the custody threshold but that "when current concerns have been overcome, courts will be notified that the approach should return to the guideline as published".[39]

14. Liberty believes that the existing sentencing structure for knife-related offences adequately reflects the seriousness of knife possession and use while incorporating necessary discretion to ensure justice in individual cases. Many young people that now carry knives do so not because they are intending to cause harm but because they are afraid of being attacked themselves. A presumptive custodial sentence for possession would risk rounding up the foolish and frightened with those intending to cause harm. As the Prime Minister commented earlier this year: "young people need to understand that carrying knives doesn't protect you, it does the opposite—it increases the danger for all of us, destroys young lives and ruins families".[40] Liberty does not believe that the best way to help young people understand this is by introducing presumptive custodial sentences for knife possession. Perceptions and signals are important and sending a signal that the law does not distinguish between the vulnerable and those who carry weapons with intent, could further alienate youngsters who may already feel isolated and without protection from the State.

15. Presumptive custodial sentences for knife possession for under 18s would arguably conflict with the UK's obligations under international human rights law. Article 37(b) of the Convention on the Rights of the Child (CRC) states that:

The UN Committee on the Rights of the Child, a body of independent experts which monitors compliance with the Convention, reported on UK compliance with the Convention earlier this month. The Committee concluded that the number of children deprived of their liberty in the UK is high and that this indicated that "detention is not always applied as a measure of last resort".[42] The Committee recommended that the UK "develop a broad range of alternative measures to detention for children in conflict with the law; and establish the principle that detention should be used as a measure of last resort and for the shortest period of time as a statutory principle".[43] Liberty would urge the Government to take heed of this recommendation and at the very least to desist from legislating to allow for the increased imprisonment of young people.

16. We believe that existing police powers, criminalisation and sentencing rules provide a sufficient framework for tackling knife crime. As a result we would urge the Committee to focus on alternative policy responses to tackle the root causes of knife possession amongst the young.

ALTERNATIVES TO LAW REFORM

17. It is crucial that all those carrying knives, for whatever reason, are discouraged from doing so. Knife possession a vicious cycle which, when confrontations arise, can be all the difference between bruises and scratches on the one hand, and death on the other. As discussed at paragraph 14, young people are increasingly turning to knife possession because this is perceived as a safeguard against attack. While police powers of stop and search (when exercised in accordance with the law and with targeted and intelligence led operations) are useful in tackling knife crime, the key to reducing the number of knives carried will be through engagement with the young and fearful.

18. Liberty welcomes many of the Government initiatives already taken in this area. Early this year the Government launched a national campaign to challenge the glamour, fear and peer pressure associated with knife possession. The Government has also provided funding for workshops for young people on the dangers of weapon possession. The Youth Crime Action Plan 2008 proposes further policy initiatives in this area including youth forums to enable young people to engage with police and policy makers. Liberty believes that this type of engagement with the causes of knife possession is critical. While this approach evidently forms part of the Government's response to knife crime, we believe that more could be done to address, in particular, the fear factor that accounts for much knife possession. In addition to knife amnesties and public education campaigns we would encourage the authorities to consider providing self defence classes for those concerned for their safety. The case study below demonstrates how effective self-defence tuition can be in combating the fear and vulnerability that leads to knife possession.

CASE STUDY X

In October 2008 Liberty spoke to X. X, aged 29, grew up in South East London and attended secondary school between 1990 and 1998. X told us that by the time she was 11, every person in her class carried a knife. Although teachers regularly searched pupil's bags for knives they rarely found any as knives were passed around and hidden carefully. X has never carried a knife. Although she was concerned for her own safety she was aware that carrying a knife would increase her chances of being subject to a knife attack. When she reached sixth form, X's concerns for her safety motivated her to take up self-defence classes which were offered after-school at her sixth form. After leaving sixth form she continued studying martial arts. She now has a blue belt in Brazilian Jiu-jitsu. Having confidence in her own ability to defend herself from an attack has made a huge difference to her. She believes that self-defence classes could be key to tackling the prevalence of fear amoung young people. X would like to see additional funding for self-defence and martial arts. She believes that more youngsters could be discouraged from carrying knives if they felt able to protect themselves without recourse to a weapon.

October 2008

17 At between 6-7% of recorded crime. The number of murders involving sharp instruments has also remained largely stable. Metropolitan Police figures show that the number of victims of knife crime has dropped over the past few years, from 10,220 in the year to March 2008 compared with 12,124 for the previous year-a reduction of 15.7%. Back

18 Scotland Yard also reports that the murder rate for victims aged 20 and under trebled between 2005 and 2007. Back

19 http://kidsco.org.uk Back

20 Section 139(1) of the Criminal Justice Act 1988. Back

21 Section 139A(1) of the Criminal Justice Act 1988. Under section 139B a constable has a power of entry to a school premises to search the premises and any person on it if he has reasonable grounds to believe that somebody on the premises is in possession of such an article. Teaching staff also have search powers under section 550AA Education Act 1996 which gives members of staff the power to search school pupils for bladed and pointed articles and offensive weapons. Similarly, section 85B Further and Higher Education Act 1992 gives members of staff power to search students at an institute for further education for bladed and pointed articles and offensive weapons. Back

22 Section 141A Criminal Justice Act 1988 (as amended by the Offensive Weapons Act 1996). Back

23 Section 1 of the Knives Act 1997. Back

24 Non-fatal offences against the person which may involve knife use include among other offences: common law offences of assault and battery, and sections 18, 20 and 47 of the Offences Against the Person Act 1861 (respectively: wounding or causing grievous bodily harm with intent, wounding or inflicting grievous bodily harm and assault occasioning actual bodily harm). Back

25 PACE Code A 2.4 and 2.6. Back

26 http://www.manchestereveningnews.co.uk/ Back

27 For example, Operation Blunt II which took place between May and June 2008 saw the Metropolitan Police seize 500 knives: 1 knife for every 54 people searched. Back