Offensive Weapons Bill

Written evidence submitted by Steven W Kendrick (OWB73)

Introduction

1. I have made many submissions over the years to Governments around the world relating to firearms and weapons legislation, including for example the Dunblane Public Inquiry, various Home Office consultations and the Home Affairs Committee. I am generally considered an expert on the subject of firearms and weapons law in the UK, Ireland and Commonwealth countries.

2. References to the Home Office come from the impact statement for the consultation exercise relating to the Bill.

Clause 5

3. This clause prohibits the possession of a "corrosive substance" in a public place without lawful authority or good reason. I think the provision of: "lawful authority" is a carry over from other provisions of law (e.g. section 19 of the Firearms Act 1968 and section 1 of the Prevention of Crime Act 1953). The Bill provides no express way to grant lawful authority, so is redundant in this clause. There are only indirect provisions that would support the "good reason".

4. The clause only assumes that work-related reasons are a prima facie "good reason" and vaguely gives a general defence in subsection (2).

5. Worryingly, the Home Office supports the idea of keeping this clause as vague as possible, in the impact statement saying: "We are not intending to define "corrosive substance" in this offence. As the proposed offence must be flexible enough to cover a range of possible situations…"

6. The problem is this vagueness could lead to the police making it up as they go along. Technically, car battery acid is a: "corrosive substance" so a person would require: "good reason" to drive a car from point A to point B on a public road. One can envisage all manner of activities requiring the use of batteries in public places that would become subject to: "good reason".

7. My view is that: "corrosive substance" needs to be further defined, as written the clause is simply too vague and although the Home Office will no doubt claim clarification through guidance to the police, courts would be free to take a different view and the police have no obligation to follow guidance. "Corrosive product" is defined in clause 1, so why not define "corrosive substance" more accurately in clause 5? No doubt the Home Office would argue it would cease to be flexible, but flexible is another way of saying: "vague" and the law must provide reasonable notice to the public as to what it means.

8. Also, there is a difference between Scotland and the rest of the UK in that a "reasonable excuse" is sufficient in Scotland and a "good reason" is sufficient in the rest of the UK. The Home Office is presumably doing this to be consistent with section 139 of the Criminal Justice Act 1988 but there is no reason why they have to. "Reasonable excuse" would seem to be a better standard than "good reason", as we are talking about something that is not inherently designed for use as a weapon. "Reasonable excuse" implies a lower standard of justification than: "good reason".

Clauses 12-18

9. These clauses establish a rather complex system of control relating to sale of knives to under-18s, bearing in mind sales to under-18s are already illegal.

10. The Home Office justifies these clauses on the basis that:

"…hospital admissions in England for assault with sharp instruments shows a rise of 13% in the year ending March 2016 compared with the previous year (from 3,590 in the year ending March 2015 to 4,054 in the year ending March 2016. Among them, 771 cases were children or teenagers aged 19 or under 6."

11. The Home Office has conducted some research on availability of knives to under-18s and designed the language of these clauses accordingly, however I draw attention to these statistics because of the use of the words: "sharp instruments".

12. There are obviously many types of sharp instrument that can be substituted for a knife and as with alcohol, straw purchases will still be possible to evade the age restriction on knife sales.

13. It is frankly hard to believe these clauses will have much of an impact on crime.

Clause 22

14. This is the most poorly written and troublesome clause in the Bill, in my view.

15. The clause prohibits possession of offensive weapons, which are already banned from import, manufacture or transfer under section 141 of the Criminal Justice Act 1988. The list of banned weapons is contained in the Criminal Justice Act 1988 (Offensive Weapons) Order 1988 which has been amended multiple times over the years to add numerous other weapons.

16. The clause would further the prohibition to apply to simple possession and therein lies the major problem with it, because the definitions used in the Order are vaguely written and were intended to ban the trade in these weapons, not simple possession. Here are some examples:

"the weapon sometimes known as a ‘blowpipe’ or ‘blow gun’, being a hollow tube out of which hard pellets or darts

are shot by the use of breath"

17. A "hollow tube" could include any manner of tubing.

"a stealth knife, that is a knife or spike, which has a blade, or sharp point, made from a material that is not readily

detectable by apparatus used for detecting metal and which is not designed for domestic use or for use in the

processing, preparation or consumption of food or as a toy"

18. Essentially this describes a sharpened piece of plastic.

"a straight, side-handled or friction-lock truncheon (sometimes known as a baton)"

19. And also known as a: "stick".

20. It’s hard to conceive how a prohibition on the possession of hollow tubes, sharpened pieces of plastic and sticks would work in practice. These definitions are clear enough to be used by HMRC for example at a port of entry, but when applied to mere possession of weapons that any person can easily fabricate, the prohibition seems ridiculous.

21. The clause then goes on to provide a variety of extremely vague exemptions to the prohibition:

"It is a defence for a person charged with an offence under subsection (1A) to show that the weapon in question is one of historical importance."

22. Historical importance in what context? To whom? How long ago?

"It is a defence for a person charged with an offence under subsection (1A) to show that they possessed the weapon in question for educational purposes only."

23. What educational purposes, as there are surely many for sharpened pieces of plastic, hollow tubes and sticks? Vague definitions combined with vague exemptions render the clause impossible to clearly understand.

Clause 23

24. This clause takes the cringe-worthy approach of amending secondary legislation using primary legislation. This is a legislative technique admittedly used once in awhile, but what makes me cringe is that the secondary legislation has already been amended a great many times and amending it further with primary legislation makes something that is already inaccessible to a casual reader even harder to comprehend.

25. It would be far better if the clause consolidated the list of offensive weapons into the Bill, rather than amending a heavily amended SI made under the Criminal Justice Act 1988. The Bill is entitled the: "Offensive Weapons Bill", so wouldn’t it make sense to list the weapons in the Bill?

26. The clause includes a ban on zombie knives, which is a bit odd as the exact same language appears in The Criminal Justice Act 1988 (Offensive Weapons) (Amendment) Order 2016, further confusing the issue and illustrating that even the Home Office has lost track of what is already banned.

27. The clause also updates the exemptions in the SI for religious purposes – once again this is a reason to bring the language into the Bill itself, rather than amending an SI. It makes no sense to have various exemptions spread out over the Bill and a separate SI, simply place them all in the Bill.

Clauses 24 and 25

28. These clauses require a hand-in of prohibited offensive weapons and a compensation scheme. Compensation is effectively required by the Human Rights Act 1998.

29. The Home Office reckons the cost for clause 24 would be £600,000 but for clause 25 they say: "It is not possible to estimate the cost as the Home Office does not have data on the average value of restricted offensive weapons or the volume of offensive weapons that are kept in private."

30. The Home Office justifies the prohibition on the following basis: "…we see no case for such dangerous weapons to be in someone’s home and possession. Even if the owner of the weapon in question has no intention at all of using it, there is a risk that they may be targeted by criminals intending to steal it."

31. How can the Home Office possibly make that claim if they have no data on the volume of offensive weapons that are kept in private? It is simply a fluffy assertion and plainly makes no sense as the idea that people would be targeted for their possession of sticks, hollow tubes, sharpened pieces of plastic or knives with "violent" writing on them is laughable. Literally anything could be banned using the justification that criminals might steal it.

32. Given that many of the types of weapon have been prohibited since 1988, it’s also impossible to understand on what basis compensation would be calculated as the trade in these weapons is banned, so what would the fair market value of them be? Are people supposed to have kept their shop receipts for thirty or more years?

33. My opinion is that the far more logical solution to the problems I’ve outlined with clauses 22-25 would be to provide a grandfather clause in the legislation. This is a far more typical approach. In essence the legislation already provides a grandfather clause by outlawing the trade in these weapons but it is hard to establish whether a person came into possession lawfully or unlawfully.

34. By providing a specific grandfather date, the police would then have the ability to recommend prosecution of people who came into possession after that date. This is the approach taken for example in Canada with a very similar ban in 1998. Having a grandfather clause completely eliminates the need for a mandatory hand-in or compensation provisions. The police would no doubt argue people would claim to have taken possession prior to the grandfather date, but this claim becomes harder and harder to make with the passage of time. A grandfather clause could be phrased merely as a defence against prosecution, so the burden of proof would still be with the possessor of the weapon to show that they benefit from it. I suggest the following wording amending section 141 of the Criminal Justice Act 1988:

"It is a defence for a person charged with an offence under subsection (1A) to show that the weapon in question was in their possession prior to the date of a statutory instrument coming into force prohibiting that weapon under subsection (2) of this section."

35. Because of the reference to section 141, this wording would ban possession from the date that the trade in the weapons was banned, not the enactment date, which would achieve the effect the police want without the expense of a mandatory hand-in and compensation scheme.

Clauses 28 and 29

36. These clauses ban rifles with a high muzzle energy (mainly those chambered for .50BMG or 12.7 x 108mm), so-called: "rapid-fire" rifles as well as "bump" stocks.

37. The main flaw in this clause is the ban on rifles with a high muzzle energy as it does not achieve the intended objective.

38. The idea of prohibiting .50 calibre rifles has been floating around for a long time, the Home Office originally asked the Firearms Consultative Committee to look into the matter in 2002 and it was expected then that a prohibition on rifles with a muzzle energy of more than 10,000 ft/lb would be included in the Anti-Social Behaviour Act 2003.

39. On further examination though, the proposal had a number of problems:

40. At high power levels, there is no obvious connection between muzzle energy and penetration. This is a logic applied to airguns at low power levels, however at high power levels the design of the projectile and other factors become more significant. Thus, a prohibition such as this could be easily circumvented by using a lower power rifle with a better designed projectile.

41. Section 5(1A)(e) of the Firearms Act 1968 (as amended by The Firearms Acts (Amendment) Regulations 1992) prohibits: "any ammunition for military use which consists in or incorporates a missile designed, on account of its having a jacket and hard-core, to penetrate armour plating, armour screening or body armour" which effectively already bans the types of ammunition used for anti-materiel purposes.

42. My understanding (which might be wrong) is that the now defunct Forensic Science Service looked into this matter at the time and concluded the prohibition would be ineffective because it could be easily circumvented.

43. Since 2002, the situation has evolved. To begin with, there has been no criminal offence committed with a .50 rifle in Great Britain (although one was stolen), which tends to indicate the fears of the police are exaggerated. More importantly, other calibres have been developed for long-range shooting that are more ballistically effective, such as .416 Barrett and .408 Cheytac. Another longer standing calibre is .338 Lapua Magnum, which is used by the British Army. None of these calibres would be affected by a prohibition as proposed by the Home Office.

44. For example, Cheytac’s brochure: http://usarmorment.com/pdf/cheytac408.pdf indicates that:

"The CheyTac® LRRS as an Anti-Material Rifle

The high remaining kinetic energy characteristics of the 419 grain projectile make it a very effective anti-material rifle. The .50 BMG has a higher initial muzzle energy of 11,200 ft. lbs. vs. the 408s energy of 7,700 lbs. At 700 yards however, the remaining energy of the 408 is higher than that of the .50 caliber rifle. Ranges past 700 yards are the realistic engagement-range for anti-material rifles." (Emphasis added).

45. The Home Office’s proposal is based on a fundamental misunderstanding of ballistics and if enacted would not in any way enhance public safety at all. It would simply lead to other remaining calibres such as .416 Barrett and .408 Cheytac becoming more popular, and these calibres are more effective for anti-materiel use. The Govt. would essentially be paying owners to replace their rifles with firearms that are arguably more dangerous. This would be a perverse outcome.

46. The wording of the clause is also poor as it uses the words: "any rifle from which a shot, bullet or other missile, with kinetic energy of more than 13,600 joules at the muzzle of the weapon, can be discharged". It is not clear what the words: "can be" mean. No doubt many firearms can be discharged with a muzzle energy that high at great risk and probably blowing up the firearm as a result. A more sensible wording would use the words: "designed to be discharged" at that power level. However, the Home Office would no doubt argue someone would simply design a rifle with a muzzle energy of 13,599J. The only alternative I can think of is to insert the word: "reasonably" between: "can" and "be".

"Rapid-fire" rifles

47. This characterisation is flawed, for the simple reason that the Home Office doesn’t argue that semi-automatic shotguns or semi-automatic .22 rimfire rifles should be banned and by any metric they can be fired more rapidly than firearms labelled as: "rapid-fire". These rifles do fire ammunition that is more lethal than .22 rimfire (but not necessarily certain types of shotgun ammunition), but if the public safety worry is: "rapid-fire" they clearly are not. Even more bizarre is that the prohibition extends to Northern Ireland, where semi-automatic handguns are still legal for target shooting and personal protection. To argue that lever-release or MARS rifles are inherently more dangerous than a semi-automatic handgun is absurd.

48. Clearly these rifles were developed as a response to the ban on centrefire semi-automatic rifles in 1989, but what makes them different is that they do not fire as rapidly. Using the one characteristic they are designed to lack as the reason to ban them makes no sense. One can subjectively argue about certain types of bolt-action rifles that can be fired as quickly but it seems pointless given the legality of semi-automatic shotguns, for example.

Bump stocks

49. These devices have become infamous because of the mass shooting in Las Vegas. As a practical matter there are only a limited number of models of .22 rimfire semi-automatic rifles and semi-automatic shotguns legally available in the UK that they can be fitted to.

50. The main problem with a prohibition is that anyone minded to could easily evade it as any number of videos on Youtube show how to achieve the same effect using elastic bands and the like.

51. All three of these prohibitions appear to be based largely on paranoia rather than facts, especially the first two. To date, none of them have been used in crime in Great Britain. My view is that clauses 28-35 should be removed from the Bill.

Northern Ireland

52. This Bill takes the unusual approach of amending a variety of statutory instruments (such as the Firearms (Northern Ireland) Order 2004) that apply to Northern Ireland by using primary legislation. Typically, these statutory instruments are amended under the Northern Ireland Act 2000 by using amending SIs. I appreciate there are problems with consulting with the Northern Irish government at the moment but using primary legislation in this way will make Northern Irish law harder to understand. My view is that references to Northern Ireland should be deleted from the Bill and a separate SI made.

Steven W Kendrick MBA

12 July 2018

 

Prepared 23rd July 2018