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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.

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Simon Bradshaw

June 2017

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