major_clanger: Clangers (Royal Mail stamp) (Default)
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BBC: 'Zombie knives' ban to come into force

I'm clearly not down with the street, because I didn't realise that 'Zombie knives' were a thing, or that there was enough of a problem with them that the government was instituting a ban on their sale or import. A friend of mine wonders if this ban would include the Bat'leth, the iconic Klingon multi-bladed weapon from assorted Star Trek series, replicas of which are apparently quite the in thing for some Trek fans.

I readily admit to not having done any criminal law for about four years, but I like to think I still understand the general principles and the basics of how to follow and interpret legislation, so here are my thoughts on what is actually happening and whether it will indeed Ban the Bat'leth.

To understand what the government is doing, we first need to understand the law in this area.

Section 141 of the Criminal Justice Act 1988 bans certain acts in respect of 'offensive weapons'. These include the manufacture, sale or hire of them, having them for the purpose of selling or hiring them, or lending or giving them to someone (s.141(1)). It also bans the import of them (s.141(4)). There are various defences, for instance in respect of weapons in museums (s.141(9)) or ones used for film, TV or theatrical productions (s.141(11A-11C)).

But what is an offensive weapon in this context? Well, as is often the case with primary legislation (i.e. Acts of Parliament) the law has a provision that says 'we create the power for the relevant Minister to specify this separately', and sure enough s.141(2) provides this.

The actual bit of law that does the specifying is a statutory instrument (SI). An SI is a law made under the authority of an Act of Parliament but which is not debated in the same way as an Act (or rather, the Bill that becomes an Act). Most are subject only to 'negative resolution' meaning that unless the draft is objected to within 40 days they become law. Some, if the Act authorising them requires it, must be approved by both Houses of Parliament, but the approval is a simple yes/no affair rather than the extensive review and debate of a Bill.

Here, the SI in question is the Criminal Justice Act 1988 (Offensive Weapons) Order 1988. I've not linked to the online version of that at legislation.gov.uk because whereas Acts on that site are (albeit often belatedly) amended to reflect legal changes, it seems that SIs are published only in their original form. If as a lawyer I want the current version of an SI, I have to use a subscription service such as LexisNexis. However, given that this is a pretty important bit of legislation, the government does publish information on the current version of the law, and it is set out in this document (PDF): Knives and offensive weapons information.

This tells us that the Schedule to the 1988 SI, which defines 'offensive weapon' for the purposes of s.141 CJA 1988, is currently as follows:

a) ‘a knuckleduster, that is, a band of metal or other hard material worn on one or more fingers, and designed to cause injury, and any weapon incorporating a knuckleduster;
b) a swordstick, that is, a hollow walking-stick or cane containing a blade which may be used as a sword;
c) the weapon sometimes known as a ‘handclaw’, being a band of metal or other hard material from which a number of sharp spikes protrude, and worn around the hand;
d) the weapon sometimes known as a ‘belt buckle knife’, being a buckle which incorporates or conceals a knife;
e) the weapon sometimes known as a ‘push dagger’, being a knife, the handle of which fits within a clenched fist and the blade of which protrudes from between two fingers;
f) the weapon sometimes known as a ‘hollow kubotan’, being a cylindrical container containing a number of sharp spikes;
g) the weapon sometimes known as a ‘footclaw’, being a bar of metal or other hard material from which a number of sharp spikes protrude, and worn strapped to the foot;
h) the weapon sometimes known as a ‘shuriken’, ‘shaken’ or ‘death star’, being a hard non-flexible plate having three or more sharp radiating points and designed to be thrown;
i) the weapon sometimes known as a ‘balisong’ or ‘butterfly knife’, being a blade enclosed by its handle, which is designed to split down the middle, without the operation of a spring or other mechanical means, to reveal the blade;
j) the weapon sometimes known as a ‘telescopic truncheon’, being a truncheon which extends automatically by hand pressure applied to a button, spring or other device in or attached to its handle;
k) 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;
l) the weapon sometimes known as a ‘kusari gama’, being a length of rope, cord, wire or chain fastened at one end to a sickle;
m) the weapon sometimes known as a ‘kyoketsu shoge’, being a length of rope, cord, wire or chain fastened at one end to a hooked knife;
n) the weapon sometimes known as a ‘manrikigusari’ or ‘kusari’, being a length of rope, cord, wire or chain fastened at each end to a hard weight or hand grip;
o) a disguised knife, that is any knife which has a concealed blade or concealed sharp point and is designed to appear to be an everyday object of a kind commonly carried on the person or in a handbag, briefcase, or other hand luggage (such as a comb, brush, writing instrument, cigarette lighter, key, lipstick or telephone);
p) 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;
q) a straight, side-handled or friction-lock truncheon (sometimes known as a baton);
r) a sword with a curved blade of 50 centimetres or over in length; and for the purposes 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.’

All in all, quite the Mall Ninja wish list.

Now, what the government has just done is to get Parliament to approve the Criminal Justice Act 1988 (Offensive Weapons) (Amendment) Order 2016 (link to PDF). This amends the 1988 SI (which has already had a few additions, it seems) to add the following to its already impressive list:

“(s) the weapon sometimes known as a “zombie knife”, “zombie killer knife” or “zombie slayer knife”, being a blade with—
(i) a cutting edge;
(ii) a serrated edge; and
(iii) images or words (whether on the blade or handle) that suggest that it is to be used for the purpose of violence.”

The first point I'd make is that the law (via the list in the 1988 SI) is not broad or vague. In fact it is extremely specific, setting out a number of very closely and carefully drafted definitions. The wording of the Schedule to the SI does not say 'includes the following...', it says 'shall apply to the following'. In such circumstances, there is a long-standing rule of statutory interpretation, so old it's referred to by its Latin name 'expressio unius est exclusio alterius', i.e. 'the express mention of one thing excludes all others'. This is in contrast to the rule for interpreting laws of the form 'A, B, C and all similar things' which is 'ejusdem generis', or 'things of the same kind or class'.

What this means is that the SI will only ban a Bat'leth, or any other weapon, if it falls clearly within one of the express definitions provided. Since none of the existing definitions cover it (I think (r), which is clearly aimed at Samuri swords, would have to be stretched too far), we have to ask if the new (s) does.

(s) has three elements, which are expressed conjunctively, i.e. all must be present. A Bat'leth certainly meets (s)(i) in that it has a cutting edge. But the ones I've found pictures of lack a serrated edge, so don't meet (s)(ii). Nor do they have images or words suggesting that they are to be used for the purposes of violence. After all, if you know what a Bat'leth is, you don't need THIS SIDE TOWARD ENEMY TO BE DISEMBOWELLED' written on it.

(Interesting question here: what if it bore a threatening inscription, but in Klingon? I've not looked in detail at this, but presumably such words would have to be in a form that a person likely to see them would understand. That probably rules out most people against whom a replica Bat'leth might be used.)

So, I do not think that this new provision will ban the Bat'leth. But what about so-called 'Klingon knives'? Do a Google image search for 'klingon knife replica' and you will see some items I certainly wouldn't want to have waved anywhere near me? Well, I think many of them would meet the (s)(i) and (s)(ii) criteria, but again there's the question as to whether the bear images or words suggestive of violence, and it seems to me they don't.

This does not, of course, mean that it is legal to wander down your local high street brandishing or carrying a Bat'leth. Unless clearly a harmless replica, it would be an 'offensive weapon' under Section 1 of the Prevention of Crime Act 1953, which defines this at s.1(4) as "any article made or adapted for use for causing injury to the person, or intended by the person having it with him for such use by him. Carrying such an item in public, other than with lawful authority or reasonable excuse (and you'd need a good one) is, by s.1(1), a criminal offence. Threatening someone with it, by s.3, is an even more serious offence. Indeed, in 2009 Mr David Hellen, of Billingham, pleaded guilty to carrying an offensive weapon after walking through a local street with what was described in court as a Bat'leth, although from the pictures seems to be a weird hybrid of all the sorts of Klingon bladed weapon I've referred to. He got 13 weeks' imprisonment as a result.

In short: this won't ban the Bat'leth. It might ban some so-called 'Klingon Knives' if they bear words or pictures suggesting violence. But walking down the street with a Bat'leth is already liable to get you into a lot of trouble.

Date: 2016-08-15 10:43 am (UTC)
drplokta: (Default)
From: [personal profile] drplokta
Surely the concern about "words that suggest that it is to be used for the purpose of violence" is about their likely effect on the owner, not the victim, and so it is the owner who has to understand them. Which they probably will, if they've bought a bat'leth inscribed in Klingon, even if they don't know any other Klingon.
Edited Date: 2016-08-15 10:43 am (UTC)

Date: 2016-08-15 01:51 pm (UTC)
From: [identity profile] major-clanger.livejournal.com
Good point! However, Hansard does not provide much help; neither the Commons nor the Lords committees that approved the SI specifically commented on whether (s)(iii) was aimed at the owner of such a knife or the people it might be threatened by.

(Yes, those were the top two Google hits on a search for 'hansard zombie knives'...)
Edited Date: 2016-08-15 01:51 pm (UTC)

Date: 2016-08-15 10:44 am (UTC)
From: [identity profile] abigail-n.livejournal.com
Surely the important question here is whether these replica weapons have an edge? Most of the ones I've seen for sale have dull edges - it would be impossible to cut or stab someone with them.

(That said, a quick google for replica Bat'leths found one site that offers to put a "razor-sharp" edge on your weapon for an extra $5.)

In that case, I think it's very simple. If a replica weapon has an edge, then it's a weapon and is subject to all laws regarding weapons (and frankly, I don't think it should be legal to sell Bat'leths with an edge, whether or not they meet the definition of "zombie knives"). If it doesn't, then it's an ornament and laws about weapons don't apply.

Date: 2016-08-15 12:24 pm (UTC)
From: [identity profile] unwholesome-fen.livejournal.com
I think it's legal to own (but not carry) some edged weapons, so the question is rather which ones it's legal to own at all? Also, non-edged weapons are not necessarily just ornaments - for example a sword used for medieval re-enactment will have no edge, and I assume would be legal to carry if you're on your way to one.

Date: 2016-08-15 02:57 pm (UTC)
From: [identity profile] abigail-n.livejournal.com
That's my point. A sword with no edge is not a weapon. It's an ornament or a prop. Weapon laws wouldn't apply to it. A sword with an edge is a weapon, even if its intended use is for reenactment or role-playing. Weapon laws would, and should, be applied to it.

Date: 2016-08-15 03:06 pm (UTC)
From: [identity profile] major-clanger.livejournal.com
Still, waving such a weapon at someone might well be a public order offence, or even assault (you do not need to actually hit someone to assault them, just put them in immediate fear of violence.) For that matter, even a blunt sword, if heavy enough, could do you some damage.

(When I was an RAF officer cadet at Cranwell we used to practice sword drill with blunt and very plain training swords, the same weight and balance as the real thing. You would not have wanted someone to take a swipe at you with one.)

Date: 2016-08-15 06:08 pm (UTC)
From: [identity profile] unwholesome-fen.livejournal.com
A baseball bat would be an obvious example - if you aren't on the way to or from playing baseball, why are you carrying it? A metre of steel, however blunt, is rather more dangerous.

Date: 2016-08-16 10:38 pm (UTC)
ext_3375: Banded Tussock (Banded Tussock)
From: [identity profile] hairyears.livejournal.com
One of your points is correct: the other is dangerously wrong.

A blunted sword is still dangerous, and a filed-flat 1mm edge can still slash your skin, muscles and bone. It can and will cut into the neck far enough to kill you if you fail to identify and evade a half-circle swing. The point, even if blunted down to the rounded end of the knives in your company canteen, can still penetrate your neck or ribcage, if thrust by a beginner-level swordsman.

Even the bokken - the wooden training sword used in kendo and aikido - will flay your skin if used in a 'drawing' stroke or slash, and the 'point' will penetrate your ribcage or abdomen with a committed and accurate thrust from a moderately-capable swordsman.

Likewise, the rounded 'point' of a wooden tanto knife.

So will the point of a biro.

Your point about weapon laws is, of course, correct. But the law is both stricter than you think, and more lenient: screwdrivers, baseball bats, biros and bokkens will get you a prison sentence if you use them as weapons in committing a violent crime, or threaten to do so.

'Real' weapons, far more lethal than the bokken and wooden tanto I have used in training for the last decade, can lawfully be owned and used by fit and proper persons; the layman's working definition of them being 'members of a society or federation of clubs with articles of association that lay out lawful purposes for their use and credible membership and discipliniary procedures'. There may be other ways of owning and training with edged weapons, but I am not aware of them; and I would have no problems whatsoever with a more explicit scheme of licensing.

Date: 2016-08-15 11:56 am (UTC)
From: [identity profile] steer.livejournal.com
That is quite the list isn't it? I wonder if it's a proactive or reactive list. Did they sit down and work out what problem weapons were or did they go "ooh... and maybe they could have a butterfly knife" --- and was there a concern about swordstick attacks or a spate of blowpipe murders?

Is it me or is the provision of s(iii) relatively odd. I mean it's quite peculiar that two weapons functionally the same are rendered legal or not so by some words saying "Stab me".

That said I'm often to be found wandering about town with a dive knife (if I'm going to/from a dive site or selling or buying such). That would otherwise be illegal under that ruling. Some divers use knives that definitely fall under "push dagger".

http://www.scubaboard.com/community/attachments/cs12bs-jpg.100405/

Date: 2016-08-15 02:02 pm (UTC)
From: [identity profile] major-clanger.livejournal.com
The original SI only went up to (n), and subsequent amending SIs have added to the list. I would not be at all surprised to find that each one was in relation to a specific scare, as this one is.

Yes, you could defeat (iii) by selling stickers separately. Although it is an offence to sell parts of a gun under UK gun laws, I don't see any similar provision for other offensive weapons, although I strongly suspect that importing or selling a kit for an offensive weapon might be classed as importing or selling the item itself (oddly, I have just won a tax tribunal case on a very similar point, in respect of VAT on kits for trailer homes.)

So long as you are carrying the knife for the reasons you say, then you would fall under the 'reasonable excuse' defence of the Prevention of Crime Act 1953.

Date: 2016-08-15 02:16 pm (UTC)
From: [identity profile] steer.livejournal.com
I guessed that there would likely be some "Yes, but that person is SUPPOSED to have it" defence --- after all you can buy these things in reputable shops.

Does the prohibition on curved swords imply by omission that I'm fine to have a straight sword over 50cm? (Katanas I guess is the worry here.)

Thanks -- interesting post.

Date: 2016-08-15 02:28 pm (UTC)
From: [identity profile] major-clanger.livejournal.com
Actually, when you read s.141 carefully it does not ban possession per se - only dealing in such weapons, possessing them for the purposes of dealing with them, or giving or lending them. So it's not unlawful to own any of these weapons, unless it looks like you are holding them as stock. (Mind you, the Police may have some questions as to how you obtained them.)

It's thus lawful to own a straight sword, as far as I can tell (NB THIS IS NOT LEGAL ADVICE!!!) and even to sell or import them. As usual though, the laws about carrying such weapons in pubic would apply.

A colleague once had seven sabres in the boot of his car. He was bringing them to my first wedding, which was in RAF uniform, with swords for me and the honour guard. They were RAF property, made by Wilkinson Sword, gold-plated and worth about £2k each even back in 1998. You had to apply to borrow them from a central stock and promise to pay if lost or damaged!

Date: 2016-08-15 06:27 pm (UTC)
ext_3375: Banded Tussock (Aikido)
From: [identity profile] hairyears.livejournal.com
Fencers and martial artists do own straight swords; and we do so in the belief that we are within the law.

As I understand the advice given to our particular Federation...

Note that I am legally unqualified, so I do not offer this as Legal Advice, and anyone reading this needs to know that our situation and the legal opinion we rely upon is only applicable in particular set of circumstances and to a very specific group of people who aren't *you*

...That advice being that we can own them, and we can store them in our homes or at the places we train, and we can transport them from our homes to our dojo.

A burden of proof falls upon us, to demonstrate that we are fit and proper people - if we carry weapons, we carry our membership cards of a club or society whose articles of incorporation or charter are a matter of public record, and these articles clearly state that we use weapons for exercises and demonstrations of martial techniques which are lawful.

If the Police enter my house, I must have that evidence of 'fit and proper person' available for inspection, and I must show that the weapons are stored securely.

A further burden of proof is spelled out, quite clearly, in the advice we are given: we are never 'just carrying' our weapons. We are taking them to a published practice session (the list is on our website) for federation members and it is 'strongly recommended' that we have a printout of the session from the website (or a printout of the invitation, it it's a grading or a private lesson).

While in transit, the weapons are in an opaque container - we are not brandishing or displaying our weapons, and must not threaten or cause alarm to any member of the public by virtue of our possessing a weapon - and that container is locked: the weapons are not readily accessible for use. Further: the weapons bag or container is never unattended - it should not be left in the boot of an empty car - because we could be liable if the weapons fell into the wrong hands.

We store the weapons on open racks during our practice sessions at the dojo: the presence of several black-belt practitioners in a martial art exceeds all reasonable definitions of 'secure'.

A grey area exists for wooden weapons - the wooden tanto, the bokken (a wooden sword, identical in weight, size and balance to a katana) and the jo (a short fighting staff) - as they might be considered 'training equipment' rather than 'offensive weapons'. However, the advice we have is: treat them and transport them like the 'real' steel weapons.

Hopefully that gives a clearer picture of our position; and, as an unqualified layman, I would urge Trekkie Klingon cosplayers to form a club or society and seek a Legal Opinion on articles of association that explicitly describe a lawful purpose and lawful activities with the item in question. However, I would point out that no-one gets to own a shuriken: there really are items which are totally illegal. If the Bat'leth is explicity banned, or exactly matches the description of a banned item, that's the end of the matter.

There's one more potential issue: you can be arrested for anything at all, or for nothing. The police may briefly detain you and send you on your way, satisfied by your documentation and evidence of lawful intentions - they are generally reasonable - but they have a very wide discretion: there's no need for (and, as a matter of law, no meaningful concept of) an 'arrestable offence'... And an arrest record is almost as damaging to a career in finance or defence work as a criminal record. It'll come up in your background checks and your job or contract application will fall through 'for administrative reasons'. I do not carry weapons on public transport because no amount of legal advice will protect me from that.

Date: 2016-08-15 08:09 pm (UTC)
From: [identity profile] biascut.livejournal.com
Gosh, you've just reminded me of when I was nineteen and moved to Germany with a group, and one of our number was a huge tai chi enthusiast. He said, "yeah, I didn't think I'd get the metal sword through customs, so I just brought the wooden one" - and pulled it out of his bag as he spoke, and we all stepped about three feet back!

Date: 2016-08-16 03:30 pm (UTC)
ext_3375: Banded Tussock (Banded Tussock)
From: [identity profile] hairyears.livejournal.com
One of the turns in the Tai Chi long sword form is notorious for leaving an unsightly gash in the student's earlobe. This, with a wooden practice sword: they are far from harmless!

Date: 2016-08-15 06:28 pm (UTC)
From: [identity profile] unwholesome-fen.livejournal.com
"carrying such weapons in pubic" - I think I've seen that Japanese film... ;-)

Date: 2016-08-15 07:55 pm (UTC)
From: [identity profile] ffutures.livejournal.com
I always wanted to know more about the airline that had katana holders by the passenger seats in Kill Bill.

Date: 2016-08-16 12:40 pm (UTC)
From: [identity profile] steer.livejournal.com
That is very cool... though I have to wonder what use the RAF would have had for swords?

"Dash it Biggles, the wretched Vickers has jammed again."

"Never mind Algy old bean, bring us round dashed close and I'll take a swipe at Jerry with old faithful here."

Date: 2016-08-16 08:20 pm (UTC)
From: [identity profile] major-clanger.livejournal.com
Tradition. Officers had swords in the Army and Royal Navy, so when the RAF was established, it had swords as part of formal dress uniform too.

They were only ever worn at the most formal or important of occasions. In 17 years I wore one twice; once at my first wedding, and once at a colleague's wedding when I was on the honour guard.

Date: 2016-08-15 12:17 pm (UTC)
From: [identity profile] ms-cataclysm.livejournal.com
I have always wondered what an inoffensive weapon would be like.

Date: 2016-08-15 12:48 pm (UTC)
From: [identity profile] biascut.livejournal.com
A knife with (i) a cutting edge; (ii) a serrated edge; and (iii) the words "ooh, don't mind me" on it?

Date: 2016-08-15 01:56 pm (UTC)
From: [identity profile] major-clanger.livejournal.com
I'm now imagining a Culture knife missile that's coloured itself pink and written "Harmlessly Minding My Own Business" down its side.

(One of the things I liked about Guardians of the Galaxy was that Yondu's weapon was, pretty much, a knife missile straight out of Iain M Banks.)

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