Scottish knife law - a reply from the office of Lord Boyd QC

[Dr. Gonzo]

Dear all, a few weeks ago I was moved to email the Lord Advocate of Scotland Lord Boyd QC. I wanted some clarification on his policy that "anyone tempted to carry a knife" will be arrested.

Below I've pasted my original email, and a reply from Lord Boyd's office, which came today. Please note that the reply is not from Lord Boyd himself, as probably expected. I feel that it didn't answer my question as clearly as I had hoped, but please see for yourselves, and post your opinions/interpretations here. I highlighted what I think is the relevant bit in red.

I hope I didn't mess up my Law quotations.

__________________________________________________ ____________________
My email:

Dear Lord Boyd,

For some time now the media has carried quotes from your office on the
subject of carrying a knife in Scotland. Today's article from BBC News
online (http://news.bbc.co.uk/1/hi/uk_politics/5132046.stm) contained
the following passage:

"Lord Advocate of Scotland Lord Boyd QC has warned that anyone tempted
to carry a knife in Scotland now faces automatic custody if caught.
Under new guidelines issued by his office, anyone caught with a knife
faces being held in custody after arrest until he or she appears in
court. "

Allow me to present you with the following facts. It is true that
according to the Prevention of Crime Act 1953 (Section 1):

"Any person who without lawful authority or reasonable excuse, the
proof whereof shall lie on him, has with him in any public place any
offensive weapon shall be guilty of an offence."

It is upon upon the police office to judge if a knife is being carried
as an offensive weapon (I am only concerning myself with knives). For
example, a medieval re-enactment participant, a gardener or a chef
should receive special dispensation if found carrying edged tools in
public, but with a satisfactory excuse. Acceptable excuses are: for
use at work, religious reasons, or part of a national costume. In
fact, a Scot by birth can carry a Sgian Dubh dagger in public as part
of his Highland national costume.

However, for general and law-abiding citizens such as myself the
following dispensation exists. According to Section 139 of the
Criminal Justice Act 1988, a person shall NOT be guilty of an offence
if carrying in public a non-locking, folding pocket knife with a
cutting edge of under 3 inches. This means that people do have a right
to carry such a knife without having any reason for doing so (schools
being exceptions after an amendment to Section 139 in the Offensive
Weapons Act 1996). I cannot imagine that many people carrying such a
pocket knife would dream of using it as a weapon. Which is why your
comments about a crackdown on people carrying ANY knife are so
worrying.

I would be very grateful if you took the time to write back to me and
clarify this issue. Is carrying small non-locking gentlemen's or Swiss
Army pocket knives really banned in Scotland now? Has Scottish law
changed from the UK law with the "new guidelines"?

Sincerely yours,
XXXX XXXXXXXXX (Leicestershire, UK)

ok, there were less kisses in the actual email


__________________________________________________ ____________________
The reply: (I have not included the name of the Clerk)

Dear Mr XXXXXXXXX

Thank you for your e-mail of 30 June to the Lord Advocate about carrying a knife in Scotland. I have been asked to reply.

Our consultation paper Tackling Knife Crime issued in June 2005 set out a range of proposals to tighten the sale of these weapons, including introducing a licensing scheme for the sale of non-domestic knives. It also included options to restrict the availability of swords, including a licensing scheme for sellers, a total ban on the sale of swords (or only samurai swords), or a ban with exemptions for particular groups or individuals.

Those proposals attracted a wide range of responses from the police, local authorities, business organisations, sports groups and historical societies and are in addition to measures already being taken forward in the Police, Public Order and Criminal Justice Act which was passed by the Scottish Parliament at the end of May, to double the maximum sentence for carrying a blade in public, give the police the unconditional power of arrest if they suspect someone of carrying a knife or offensive weapon in public, and raising the age for buying a non-domestic knife from 16 to 18.

http://www.scotland.gov.uk/Publicati.../0394432/44339

http://www.opsi.gov.uk/legislation/s...0060010_en.pdf

We are considering the responses to Tackling Knife Crime in detail and the Justice Minister is expected to make an announcement about licensing and swords and the way forward shortly. We will be taking forward legislation in the Sentencing Bill due to be introduced to the Scottish Parliament in the autumn. Meantime here is a link to the analysis and a link to the recent announcement by the Minister for Parliamentary Business about the forthcoming legislative programme. In it she states that the Sentencing Bill would focus on knife crime and release of offenders.

http://www.scotland.gov.uk/Publicati...30165358/53589



http://www.scotland.gov.uk/News/Rele...06/06/22093141

The Lord Advocate is committed to providing an independent, modern prosecution service for the 21st century. The aim is to deliver professional excellence, pursuing cases fairly and consistently in the public interest and being responsive to the public’s needs. As a result of this commitment the Lord Advocate instructed a review of prosecution policy on knife crime.

The new policy addresses three particular issues. The first is that people carrying or using a knife will, except in exceptional circumstances, be held in custody by the police before appearing at court. Secondly the prosecutor will oppose bail for people carrying or using a knife who have a previous conviction for a similar offence. Finally there will be a presumption that people carrying or using a knife who have a previous conviction for carrying or using a knife will be prosecuted before a sheriff and jury enabling sheriffs to impose a more severe punishment.

We recognise that exceptions will have to be safeguarded or built into changes in legislation to cover legitimate aspects of knife/sword sale and ownership, for example for work, sporting or cultural purposes. The law seeks to protect individuals, and our aim is to remove knives from the hands of those who have no legal reason to own and use them, and to address the level of violent crime on the streets.

You mention section 139 of the Criminal Justice Act 1988. I attach below section 49 of the Criminal Law (Consolidation) (Scotland) Act 1995 which states that ‘it shall be a defence for a person charged with an offence under this section to prove that he had good reason or lawful authority for having the article [with blade or point] with him in a public place’. We have no plans to change this, however it is unlikely that the police will seek to charge individuals for carrying a knife in the circumstances that you describe.

Criminal Law (Consolidation) (Scotland) Act 1995

Offence of having in public place article with blade or point.

49. – (1) Subject to subsections (4) and (5) below, any person who has an article to which this section applies with him in a public place shall be guilty of an offence and liable–

(a) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both; and

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both.

(2) Subject to subsection (3) below, this section applies to any article which has a blade or is sharply pointed.

(3) This section does not apply to a folding pocket knife if the cutting edge of its blade does not exceed three inches (7.62 centimetres).

(4) It shall be a defence for a person charged with an offence under subsection (1) above to prove that he had good reason or lawful authority for having the article with him in the public place.

(5) Without prejudice to the generality of subsection (4) above, it shall be a defence for a person charged with an offence under subsection (1) above to prove that he had the article with him–

(a) for use at work;

(b) for religious reasons; or

(c) as part of any national costume.

6) Where a person is convicted of an offence under subsection (1) above the court may make an order for the forfeiture of any article to which the offence relates, and any article forfeited under this subsection shall (subject to section 193 of the FN1 Criminal Procedure (Scotland) Act 1995 (suspension of forfeiture etc, pending appeal)) be disposed of as the court may direct.

(7) In this section "public place" includes any place to which at the material time the public have or are permitted access, whether on payment or otherwise.



Clearly those who have genuine and legitimate reasons for possession of bladed articles for work or cultural purposes are not the intended targets of this policy and the statutory defence mentioned earlier will remain in force.

I hope this reply is helpful.

Yours sincerely

XXX XXXXX

Scottish Executive Justice Department

Criminal Law Division

Mail Point 3

GW.15

St Andrews House

Edinburgh

EH1 3DG

[thomas]

they could have answered your question in so much less dribble than that surely?
could have said ' the law in scotland has not changed'.
well thats what i would have said.

[soa]

I read this as section 49 applies to bladed or pointed articles

4/5 are defences
ss 4 - good reason or lawful authority (I'm on callout 24/7 for blue light SAR duties... would possibly be mine)
ss 5 - work/religous/national costumes

ss 3 is the kicker. It says "This section does not apply to a folding pocket knife if the cutting edge of its blade does not exceed three inches (7.62 centimetres)."

If it is three inches or less you *cannot* be charged under this section.

I'd add my guess is they don't publicise this 'cos they don't want street monsters to have to deal with loads of lippy neds.

I'd say don't be a smart-arse about it though. *Never* argue with a bobby on the street - I'd be tempted to allow him to confiscate with a receipt *or* offer willingly to go down to the factory. LEOs current or past by all means chip in with your view as to the wisdom of that approach.

[Ross]

Plenty of dribbling but also a fairly sensible answer IMHO.

[Ross]

I read this as section 49 applies to bladed or pointed articles

4/5 are defences
ss 4 - good reason or lawful authority (I'm on callout 24/7 for blue light SAR duties... would possibly be mine)
ss 5 - work/religous/national costumes

ss 3 is the kicker. It says "This section does not apply to a folding pocket knife if the cutting edge of its blade does not exceed three inches (7.62 centimetres)."

If it is three inches or less you *cannot* be charged under this section.

I'd say don't be a smart-arse about it though. *Never* argue with a bobby on the street - I'd be tempted to allow him to confiscate with a receipt *or* offer willingly to go down to the factory. LEOs current or past by all means chip in with your view as to the wisdom of that appraoch.

soa has it right. I would never suggest arguing with a cop on the street but a polite reminder or a gentle prompt for him to find out for certain (radioing his sgt etc) would not be amiss.

[Etalon]

All that excitement about section 49 was building up inside me, untill as soa points out...

Blades lengths of less than 3inches are excluded. Is it just me, or is section 49 basically covered by section 139?

And personally, if im stopped on the street with my UKPK, I will not argue with the police, if they want to take it off me, ill go to the police station with them, where I can make my case under recorded conditions. At that point, im sure the situation will be much easier to sort out rather than arguing the finer points of law with a policeman on the street which I can only imagine will lead to big problems.

[Colin KC]

"Lord Advocate of Scotland Lord Boyd QC has warned that anyone tempted
to carry a knife in Scotland now faces automatic custody if caught.
Under new guidelines issued by his office, anyone caught with a knife
faces being held in custody after arrest until he or she appears in
court. "

Allow me to present you with the following facts. It is true that
according to the Prevention of Crime Act 1953 (Section 1):

"Any person who without lawful authority or reasonable excuse, the
proof whereof shall lie on him, has with him in any public place any
offensive weapon shall be guilty of an offence."

It is upon upon the police office to judge if a knife is being carried
as an offensive weapon (I am only concerning myself with knives). For
example, a medieval re-enactment participant, a gardener or a chef
should receive special dispensation if found carrying edged tools in
public, but with a satisfactory excuse. Acceptable excuses are: for
use at work, religious reasons, or part of a national costume. In
fact, a Scot by birth can carry a Sgian Dubh dagger in public as part
of his Highland national costume.

However, for general and law-abiding citizens such as myself the
following dispensation exists. According to Section 139 of the
Criminal Justice Act 1988, a person shall NOT be guilty of an offence
if carrying in public a non-locking, folding pocket knife with a
cutting edge of under 3 inches. This means that people do have a right
to carry such a knife without having any reason for doing so (schools
being exceptions after an amendment to Section 139 in the Offensive
Weapons Act 1996). I cannot imagine that many people carrying such a
pocket knife would dream of using it as a weapon. Which is why your
comments about a crackdown on people carrying ANY knife are so
worrying.

I would be very grateful if you took the time to write back to me and
clarify this issue. Is carrying small non-locking gentlemen's or Swiss
Army pocket knives really banned in Scotland now? Has Scottish law
changed from the UK law with the "new guidelines"?

Sincerely yours,
XXXX XXXXXXXXX (Leicestershire, UK)

ok, there were less kisses in the actual email


__________________________________________________ ____________________
The reply: (I have not included the name of the Clerk)

Dear Mr XXXXXXXXX

Thank you for your e-mail of 30 June to the Lord Advocate about carrying a knife in Scotland. I have been asked to reply.

Blah blah blahdy blah

Blah blah blahdy blah...

...and raising the age for buying a non-domestic knife from 16 to 18.

http://www.scotland.gov.uk/Publicati.../0394432/44339

http://www.opsi.gov.uk/legislation/s...0060010_en.pdf

Blah blah blahdy blah...


...In it she states that the Sentencing Bill would focus on knife crime and release of offenders.

http://www.scotland.gov.uk/Publicati...30165358/53589



http://www.scotland.gov.uk/News/Rele...06/06/22093141

The Lord Advocate is committed to providing an independent, modern prosecution service for the 21st century. The aim is to deliver professional excellence, pursuing cases fairly and consistently in the public interest and being responsive to the public’s needs. As a result of this commitment the Lord Advocate instructed a review of prosecution policy on knife crime.

The new policy addresses three particular issues. The first is that people carrying or using a knife will, except in exceptional circumstances, be held in custody by the police before appearing at court. Secondly the prosecutor will oppose bail for people carrying or using a knife who have a previous conviction for a similar offence. Finally there will be a presumption that people carrying or using a knife who have a previous conviction for carrying or using a knife will be prosecuted before a sheriff and jury enabling sheriffs to impose a more severe punishment.

We recognise that exceptions will have to be safeguarded or built into changes in legislation to cover legitimate aspects of knife/sword sale and ownership, for example for work, sporting or cultural purposes. The law seeks to protect individuals, and our aim is to remove knives from the hands of those who have no legal reason to own and use them, and to address the level of violent crime on the streets.

You mention section 139 of the Criminal Justice Act 1988. I attach below section 49 of the Criminal Law (Consolidation) (Scotland) Act 1995 which states that ‘it shall be a defence for a person charged with an offence under this section to prove that he had good reason or lawful authority for having the article [with blade or point] with him in a public place’. We have no plans to change this, however it is unlikely that the police will seek to charge individuals for carrying a knife in the circumstances that you describe.

Criminal Law (Consolidation) (Scotland) Act 1995

Offence of having in public place article with blade or point.

49. – (1) Subject to subsections (4) and (5) below, any person who has an article to which this section applies with him in a public place shall be guilty of an offence and liable–

(a) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both; and

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both.

(2) Subject to subsection (3) below, this section applies to any article which has a blade or is sharply pointed.

(3) This section does not apply to a folding pocket knife if the cutting edge of its blade does not exceed three inches (7.62 centimetres).

(4) It shall be a defence for a person charged with an offence under subsection (1) above to prove that he had good reason or lawful authority for having the article with him in the public place.

(5) Without prejudice to the generality of subsection (4) above, it shall be a defence for a person charged with an offence under subsection (1) above to prove that he had the article with him–

(a) for use at work;

(b) for religious reasons; or

(c) as part of any national costume.

6) Where a person is convicted of an offence under subsection (1) above the court may make an order for the forfeiture of any article to which the offence relates, and any article forfeited under this subsection shall (subject to section 193 of the FN1 Criminal Procedure (Scotland) Act 1995 (suspension of forfeiture etc, pending appeal)) be disposed of as the court may direct.

(7) In this section "public place" includes any place to which at the material time the public have or are permitted access, whether on payment or otherwise.



Clearly those who have genuine and legitimate reasons for possession of bladed articles for work or cultural purposes are not the intended targets of this policy and the statutory defence mentioned earlier will remain in force.

I hope this reply is helpful.

Yours sincerely

XXX XXXXX

Scottish Executive Justice Department

Criminal Law Division

Mail Point 3

GW.15

St Andrews House

Edinburgh

EH1 3DG

It occurs to me that this is a piece of political sleight of hand (see the parts in blue)

[Colin KC]

First of all:

The first is that people carrying or using a knife will, except in exceptional circumstances, be held in custody by the police before appearing at court.

That sounds just like the media there


Then:

Clearly those who have genuine and legitimate reasons for possession of bladed articles for work or cultural purposes are not the intended targets of this policy

Agreed.


But:

statutory defence

Section 3 is not a statutory defence, it is an exception!


This seems to be a bit of a fob off.

[Bogflogger]

That is one damn fine email Dr.Gonzo!

(I would rep you, but need to spread some around.)

To be fair, the Scottish Executive did take the time to provide a Comprehensive reply.

The ambiguity in the reply, seems to be more to do with the current slightly disfunctional Legislation, plus the Media Disinfomation Campaign, which is being compounded by the proposed (and therefore, not yet written) changes.

I am slightly reassured by the statement that there is a recognition that Campers, Bushcrafters, Kayakers, etc, require knives for both practical and safety reasons.

This aspect is probably being considered sensibly, due to the fact that the Scottish Economy is so heavily dependant on Tourism!

[ANDYLASER]

Nice work Dr G. As long as we know, we cany carry a legal EDC, I dont care if the "scrotes" arent aware of this. As long as the rules have the desired effect to protect people then everyone should be happy.

[TLM]

Interesting and very british. Somewhat bluntly: you form your question very politely but also a bit unclearly in the sense that there is no clearly set question, like "can I or cannot I do this". This allows the answerer to squible around by referring to sections of law without actually answering.

From this answer I would not deduce anything but that it is a very "diplomatic" one, (short, unclear and does not reveal anything the questioner did not know beforehand).

TLM