Simon Bradshaw

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.

First Jaffa Cakes, then Torq Bars, now Snowballs; is there no end to the confectionary products that the VAT Tribunal has to rule upon?

Clearly not, because following on from the case I posted about a while back we now have a joint appeal by Lees and Tunnocks as to whether their Snowballs are cakes. As before, this is actually a quite important point for all involved, because the question of whether a product is subject to VAT means a 20% price difference (or a substantial cut in your profit margin to maintain the same price.)

The judgment makes it clear that the tribunal took their task very seriously.

20. We would consider ourselves to fall into the category of “ordinary persons” who have been informed, in the sense of having some knowledge, but not specialist knowledge of both cakes and confectionary. It was explained by us that certainly Judge Scott, in common with the millions of men and women who bake cakes or make confectionery or watch TV programmes such as Great British Bake Off, or read the many books and publications covering these topics, has a relatively sophisticated and wide ranging understanding of the many and varied types of cakes, meringues and chocolate confections that are available and their probable modes of manufacture, at least in a domestic setting.

21. We, Messrs Simpson and Cornell and a witness were each provided with a plate comprising a number of confections including one each of a Jaffa cake, Mr Kipling Bakewell Tart, Waitrose meringue, a tea cake manufactured by each appellant, a Lees snowball and a mini jam snow cake. We found that the plate looked like a plate of cakes. We were also left with samples of all of these together with Tunnock’s snowballs. We tasted all of them, in moderation, either at the hearing or thereafter.

22. What are our findings in fact about the Snowballs as far as taste, texture, appearance, and circumstances of consumption are concerned, from our experience?

(a) They are very fragile products,
(b) They are very sweet,
(c) The mallow filling is very similar in the tea cakes and snowballs but slightly looser and sweeter in the snowballs; however if it had not been a comparative tasting, but each had been tasted separately, we find that the mallow would be found to be more or less identical,
(d) The coconut has a strong flavour and adds notable and contrasting texture,
(e) Pieces of coconut fell off as soon as the snowballs were moved or touched,
(f) The chocolate is not particularly noticeable in the Lees’ snowball,
(g) The snowballs are soft and slightly chewy,
(h) They were the most difficult of the confections to eat with one’s fingers,
(i) We, and the witness were left with very sticky fingers, which, as we explained to parties was not dissimilar to eating a cake such as a vanilla slice (or mille feuille or croquembouche); we required to clean our fingers,
(j) The snowballs are of an equivalent size to the other confections on the plate; they are very similar in shape to the teacakes. The snowballs are of a similar size to traditional cakes such as French fancies or cupcakes.
(k) Tunnock’s snowballs are larger than those manufactured by Lees and have a slightly more moist mallow;
(l) Tunnock’s snowballs are individually wrapped in cellophane and, on opening the wrapper, loose coconut which had presumably been dislodged in transit falls out unless one is particularly careful,
(m) Neither of the Appellants’ own brand products were reasonably capable of being eaten in one bite;
(n) The ASDA mini snowballs (produced by Lees) might be capable of being eaten in one bite, as are the mini tea cakes,
(o) The snowballs would normally be consumed with a beverage,
(p) We would not choose to eat a snowball if not seated, preferably at a table, because of the pieces of coconut which fall off;
(q) The snowballs hardened even in the few hours for which they remained on the plate.

They were careful to reason on their observations in light of the proper authorities:

44. As we indicate above, we carefully considered the various factors, identified by the authorities, which come into play when looking at the characteristics of snowballs. Beyond that were we assisted by the authorities themselves? Swedish Snowball is the first reference point in this matter. Although the name is the same, the ingredients, the cooking process and the shelf life of these snowballs are completely different. The ingredients, cooking process and shelf life of these snowballs are in fact very similar to that for teacakes as indeed HMRC acknowledge (see paragraph 33 above).

45. We agree with the reasoning in Goodfellow where it is stated that “This Tribunal is satisfied that there are no objective tests which can be imposed to determine of themselves whether a particular item of confectionary is or is not a ‘cake’”.

46. We agree entirely with the reasoning in Ferrero 2 where Lord Woolfe stated “I do urge Tribunals, when considering issues of this sort, not to be misled by authorities which are no more than authorities of fact into elevating issues of fact into questions of principle when it is not appropriate to do so on an enquiry such as this. The Tribunal had to answer one question and one question only, was each of these products properly described as biscuits or not?”. We substitute the word cake for biscuits.

And in reaching their decision, they gave some helpful judicial guidance on the etiquette of eating such products:

53. A snowball looks like a cake. It is not out of place on a plate full of cakes. A snowball has the mouth feel of a cake. Most people would want to enjoy a beverage of some sort whilst consuming it. It would often be eaten in a similar way and on similar occasions to cakes; for example to celebrate a birthday in an office. We are wholly agreed that a snowball is a confection to be savored but not whilst walking around or, for example, in the street. Most people would prefer to be sitting when eating a snowball and possibly, or preferably, depending on background, age, sex etc with a plate, a napkin or a piece of paper or even just a bare table so that the pieces of coconut which fly off do not create a great deal of mess. Although by no means everyone considers a snowball to be a cake we find that these facts, in particular, mean that a snowball has sufficient characteristics to be characterized as a cake.

I think we should establish the specialist Confectionary VAT Status Tribunal to deal with such matters; I for one will be polishing up my CV when the call comes for applications to be its first judge.

Barristers tend to have a reputation for being conservative (indeed Conservative), restrained and traditionalist. It may provide some idea of just how angry the Government's cuts to legal aid and ham-fisted court 'reforms' have made the criminal bar in particular to see the Criminal Bar Association's poster for its next event:

( Comrades of the Bar, Unite! )

(From original at event home page here)

Once upon a time English law was strewn with Latin. A lot of it was formally thrown out around 1999 when Lord Wolff imposed an updated terminology; alongside plaintiffs becoming claimants, terms such as 'writ of mandamus' and 'subpoena duces tecum' being replaced with 'mandatory injunction' and 'summons to produce evidence'. But many terms have become helpful shorthand and we still commonly talk about someone having locus standi to bring a claim, or apply the ejusdem generis rule when trying to work out if X is included in a list of 'A, B, C and similar'. And I recently spent a good part of a morning arguing whether it was absolutely necessary for my clients to be able to give restitutio in integrum of a loan that we said was voidable for misrepresentation.

A slightly longer form of legal Latin is the legal maxim, a principle of law so well-worn that early commentators set in down in Latin (or even in some cases took it from Roman law). Some have become sufficiently established that they are part of legal jargon, e.g.:

ex turpi causa non oritur actio - no legal claim arises from an unlawful act (although this is a principle somewhat tempered by laws such as the Occupier's Liability Act 1984).

mutatis mutandis - a handily short term for 'having amended or reinterpreted this part of a document in light of new circumstances, make consequential amendments or reinterpretations throughout'.

res ipsa loquitur - 'the thing speaks for itself', used to mean 'the facts admit of no other explanation'. Put another way, it's lawyer-speak for Well, du'h.

volenti non fit injuria - sorry, it's your own damn stupid fault. Again, rather tempered by modern legal and public policy, but often applied in part via the doctrine of contributory negligence and sometimes still effective to completely throw out a claim, no matter what the Daily Fail would have you believe.

One less-commonly used one is cuius est solum, eius est usque ad coelum et ad inferos. Literally, it translates as 'who owns the soil, also owns it to the heavens above and to the fires beneath'. It's used to denote the legal concept that ownership of a parcel of land extends vertically in both directions. As a strict doctrine of law it was questioned in terms of the ad coelum bit over two hundred years ago, when the legal questions arising from balloon flights started to come to court. (Yes, aviation law goes back to the Napoleonic era.) But it's still the case that a structure that protrudes over you land can be a trespass, and indeed I had to advise on such a dispute this week - which is what reminded me of this maxim.

If you want a really, really thorough examination of cuius est solum then you need only look to the very extensive discussion by Lord Hope at paragraphs 8 to 27 of the UK Supreme Court's decision in Star Energy Weald Basin Limited and another v Bocardo SA [2010] UKSC 35. I can't help but feel that His Lordship leapt at the chance to finally write his monograph on 'The Development of the Cuius est Solum Doctrine, 1250-2009'.

Incidentally, the Star Energy case concerned oil extraction from under land in Surrey (yes, we have oil where I come from). The oil field in question is Palmers Wood, but as this story notes part of it lies under the Oxted Estate, owned by... Mohamed Al Fayed. The exploration company was drilling from nearby but for maximum extraction it had to drill sideways to the apex of the oil field, and that was the bit under Mr Al Fayed's land. At this point, having seen There Will Be Blood, I have the image of Daniel-Day Lewis taunting Mohamed Al Fayed with "I drink your milkshake!".

I mentioned this case over on Facebook and my old university chum Simon Spero helpfully pointed me at 'The Great Onyx Cave Cases - A Micro-History' by Professor Bruce Ziff of the University of Alberta's Faculty of Law. One of many battles in the Kentucky Cave Wars, Edwards v Sims (1929) 24 S.W.2d 619 was a case on subterranean trespass, and a fascinating story it is too, not least in respect of the wonderfully-named Justice Marvel Logan. And, although it's not evident from the decision as posted on BAILLI, the fully-referenced report in the All England Law Reports confirms, as Prof Ziff notes, that the Kentucky case was indeed cited to the UK Supreme Court.

Much kudos to my learned friend Tim Sapwell, who becomes the only member of our chambers (or probably any other set) to have prosecuted someone for assaulting Darth Vader's wife.

In Osmium Shipping v Cargill the High Court has ruled that the placement of a comma was crucial in deciding whether or not seizure by pirates fell within a crucial clause of the shipping contract*.

The clause provided that if the vessel should “be put back whilst on voyage by reason of any accident or breakdown, … or capture/seizure, or detention or threatened detention by any authority including arrest, the hire shall be suspended”.

The Charterers said that 'capture/seizure' stood alone as one of a number of events that would suspend hire. The Owners said that it was qualified by the 'any authority' wording afterwards, and that as Somalian pirates were not any sort of authority, the clause had not come into effect.

Not surprisingly, when the matter went to arbitration it was held that the Charterers' interpretation was correct, and on appeal to the High Court Mr Justice Cooke agreed. This sort of thing is why I am sympathetic to my friend T's views (based on his experience as a programmer) that laws and legal documents ought to adopt a structured programming approach and clearly indicate by their layout which parts apply to what. I often have to draft Orders of Court recording decisions or agreements regarding matters such as child contact with separated parents, and it can take a lot of care and sub-paragraphs to ensure that what you end up with is clear and unambiguous.

The full judgment is here, with the relevant discussion being at paragraphs 16 onwards. However, I must note the mention at paragraph 6 of Clause 16 of the contract:

"…The act of God, enemies, fire, restraint of Princes, Rulers and People, and all dangers and accidents of the Seas, Rivers, Machinery, Boilers and Steam Navigation, and errors of Navigation throughout this Charter Party, always mutually excepted."

I rather suspect that clause was drafted quite a long time ago and may have been copied as standard wording since the days of, oh, Queen Victoria?



* Yes, I know the correct term is 'charterparty', but I assume that most of my friends haven't done a module in shipping law.

I use a legal update aggregator that dumps into my inbox every morning a collection of articles about recent cases in my areas of interest. (These are usually pieces written by law forms to highlight their specialist knowledge in such fields.) One such area is employment law and today my attention was caught by this story:

A belief in a 'conspiracy theory' surrounding 7/7 and 9/11 terrorist attacks is not a philosophical belief under UK discrimination law

In Farrell v South Yorkshire Police Authority, an Employment Tribunal has considered whether a dismissed employee’s belief in a conspiracy theory surrounding a ‘New World Order’ and the terrorist attacks in 2001 and 2005 constituted a philosophical belief, such as to attract protection under the Employment Equality (Religion or Belief) Regulations 2003 (“the Regulations”).

The article goes on to explain just how Mr Farrell, a police intelligence analyst, was dismissed for holding view that, one might indeed think, could call into question his ability to perform his job:

Mr Farrell was employed as a Principal Intelligent [sic] Analyst by the South Yorkshire Police Authority. He claimed to hold a belief in a ‘New World Order’, under which a ‘global elite’ (including the UK and US governments and world financial institutions) were seeking to “introduce a secret satanic ideology to enslave the masses and claim control of the world’s resources”. To this end, he believed in particular that the UK and US governments perpetrated the terrorist attacks of 11 September 2001 and 7 July 2005.

During his employment, Mr Farrell was asked to prepare a report for the South Yorkshire Police area, analysing the level of threats posed by various crimes (including terrorism). Mr Farrell made various comments in his report, specifically referring to his views regarding the New World Order and, in particular, his belief that the terrorist attacks in 2001 and 2005 were “sham” operations authorised by the US and UK governments “to divert attention from their own secret scheming and evil ways of the elite”. In light of the content of his report, Mr Farrell was invited to a disciplinary hearing. The South Yorkshire Police Authority took the view that Mr Farrell’s expression of his views was incompatible with his employment and that his position was therefore untenable. Mr Farrell was consequently dismissed.

As an aside, I do like that 'Intelligent Analyst'. Sadly, it seems that whilst Mr Farrell may indeed have been intelligent, he lacked somewhat in common sense, discrimination and the ability to reflect on the logic of one's own conclusions - all qualities, one might think, crucial to his job.

The full decision of the Employment Tribunal is available here (NB: large scanned PDF). It makes for very interesting reading. I'd say 'entertaining' but one shouldn't really take any pleasure in reading evidence of how a clearly smart and articulate person has headed off into woo-woo land. Nonetheless I confess to a degree of schadenfreude when I read the account of what happens when a full-blown conspiracy theorist is politely but exactingly cross-examined on the implications of his own theory. It seems that counsel for the police authority was able to lead Mr Farrell into the recursion of endless epicycles, as he was forced to concede that the only way his conspiracy theories could hang together was to keep on adding new levels of conspiracy on top.

Presumably, Mr Farrell will now add the Employment Tribunal too, alongside the Trilateral Commission, the Illuminati and the Driver and Vehicle Licensing Agency*. If he goes to the Employment Appeal Tribunal with that as his central submission, I don't see him getting very far.

*They have photographs of everyone who drives, don't you know!

EDIT Second link flakey** so I've changed it.

**Doubtless due to the influence of [insert alphabet-soup covert agency of your choice]

Back to civil work and I'm doing some research in relation to music contracts. One of the relevant cases is John Wadlow v Henry Samuel (performing as Seal), a 2006 case about alleged unfairness in Seal's original recording contract. As I often do I looked up legal articles discussing the case, and found one in Entertainment Law Review by one Matt McKenzie. Reading through it, I got to the final few sentences (my emphasis added):

...any rights of action that Seal had from the original agreement were never going to survive. Previously the position had been a little hazy but the fact that Seal had independent advice in relation to the settlement agreement proved a killer point.

[Slow clap] Oh well done, Mr McKenzie. Well done.

And it's going to be a Trilogy - I discuss the news that the Knockoff Stormtrooper Helmet Case is heading all the way to the Supreme Court.

My Darling Beloved (darth_hamster) has asked me a question.

Me: Hmmm... I'll have to check. Pass me that really thick dark blue book called Blackstone's, will you?

(Riffle of pages)

Me: Well, section 69(1)(b) of the Sexual Offences Act 2003 makes bestiality an offence, but only with a living animal. And section 70(1)(b) criminalises necrophilia, but only with a dead person.

DH: So if Fred shoots his horse then has sex with it...?

Me: ...He hasn't, on the face of it, actually broken the law...

It was so much simpler when friends and family asked about root-undermined fences, or copyright in old photographs.

Addendum: As I went on to explain, necrophiliac bestiality (bestial necrophilia?) would, if done it public, almost certainly lead to a conviction for the handy all-purpose common-law offence of outraging public decency (which I've wittered on about before.) And of course there's the legality of shooting the horse, although having looked up the law on animal welfare my understanding is that it's only an offence to cause suffering to an animal you own; killing it quickly and humanely is not against the law.