Statutory guidance

Statutory guidance: Offensive Weapons Act 2019 (accessible)

Updated 27 July 2022

Applies to England, Scotland and Wales

Statutory guidance issued under section 66 of the Offensive Weapons Act 2019.

April 2022

Introduction

This statutory guidance provides advice for those required to comply with, or enforce, the measures in the Offensive Weapons Act 2019 set out below, and with other legislation that is amended by the Act, in England and Wales. It also provides advice in respect of sections 1 to 4 of the Act in Scotland in relation to the sale and delivery of corrosive products. This statutory guidance does not apply in Northern Ireland.

The scope of this guidance

This guidance relates to the following Parts of the Act:

• Part 1: Corrosive products and substances
• Part 3: Sale and delivery of knives etc.
• Part 4: Possession etc. of certain offensive weapons
• Part 5: Threatening with offensive weapons
• Part 7: Enforcement

Part 2 of the Act concerns Knife Crime Prevention Orders. These measures are subject to separate guidance.

Part 6 of the Act concerns Firearms. The measures in Part 6 include the prohibition of certain firearms, their surrender and compensation arrangements. These measures are subject to separate guidance and are discussed further below. Part 6 also includes measures relating to enhanced security for certain firearms, which have been included in a separate consultation on a number of firearms safety issues, which ran from 24 November 2020 to 16 February 2021. Further information in respect of this consultation is available on gov.uk.

The purpose of this guidance

The guidance is primarily for the police, retailers, delivery companies and Trading Standards Authorities. It will also be of interest to the Crown Prosecution Service, HM Courts and Tribunals Service, manufacturers and suppliers of bladed articles, bladed products, and corrosives, as well as members of the public.

The guidance sets out how duties imposed by the Offensive Weapons Act 2019 should be complied with, and what factors should be taken into account when making decisions on whether and how to proceed with individual cases that are concerned with the possession, sale and delivery of knives, corrosives and offensive weapons, and the use of these to threaten others.

Organisations and bodies may issue additional guidance in relation to these matters for clarification if they wish to do so.

Prohibitions introduced by the Offensive Weapons Act 2019

Measures in Part 4 and Part 6 of the Act prohibit the possession of offensive weapons and certain firearms. The Act requires that these prohibitions must be preceded by arrangements for the surrender of the items concerned to the police, and for compensation to be paid to those who lawfully owned the weapons on the dates specified in Parts 4 and 6 of the Act and who surrender the items in accordance with arrangements made by the Secretary of State.

The arrangements were set out in the relevant regulations^{[footnote 1]} and a surrender and compensation scheme ran from 10 December 2020 to 9 March 2021.

Purpose of the provisions of the Offensive Weapons Act 2019 covered by this guidance

The Act includes new legislative measures to control the sale of knives and corrosive products, and it introduces new offences relating to their possession and use.

The Act creates a new criminal offence of selling a corrosive product to a person under the age of 18. The substances and concentration levels that constitute corrosive products for this purpose are set out in Schedule 1 of the Act. The Act contains a delegated power to amend the Schedule to add, remove or modify substances and concentration levels as required.

The Act creates a new criminal offence of possessing a corrosive substance in a public place. There is a defence provided to this offence where the person can prove that they had good reason or lawful authority for having the corrosive substance with them.

The Act provides defences that can apply to the offence of selling bladed articles to under 18s, in the case of the remote sales. Remote sales include online sales, mail-order or over the phone sales. The defence requires proof that the seller took all reasonable precautions and exercised due diligence to avoid committing the offence of selling to an under 18 offence. To rely on the defence, as a minimum, all of the conditions set out in section 35 of the Act must be met.

The Act provides defences to the offences of delivering, or arranging delivery of, a bladed product to residential premises or to a locker and the offence of delivering bladed products to an under 18 at residential premises unless the seller meets certain conditions (had procedures in place which were likely to ensure that any bladed product would be delivered into the hands of someone over 18 and took all reasonable precautions and exercised all due diligence, to ensure the product was delivered to someone over 18, or the product was designed, manufactured, adapted for the buyer in accordance with their specifications or if the products was for sporting purposes or historical re-enactment). The term “bladed product” is a new term introduced in the Act and is intended to cover a subset of bladed articles and it means an article with a blade that is capable of causing a serious injury to a person which involves cutting that person’s skin.

Where the seller is based outside of the UK, the delivery of a bladed product to a person under 18 is a criminal offence for the delivery company that delivers the product on behalf of the overseas seller. There are defences to this offence where the delivery company takes all reasonable precautions and exercises all due diligence to avoid delivering the bladed product into the hands of a person under 18.

The Primary Authority scheme, that applies to Trading Standard Authorities, has been extended to cover the sale, delivery etc of knives (including bladed articles and bladed products), corrosive products and other offensive weapons.

The Act updates the definition of a flick knife to include those where the mechanism is not within the handle. It also prohibits the possession of flick knives and gravity knives in private. The sale, importation, manufacture, supply and possession in public is already prohibited.

It amends existing legislation in respect of offensive weapons to make it a criminal offence to possess in private certain offensive weapons, such as knuckledusters, zombie knives and death stars. The sale, importation, manufacture, supply and possession in public of these items is already prohibited. The Act also extends the existing offences of possessing a bladed article or offensive weapon on school premises to include further education premises in England and Wales.

The Act amends the legal test for threatening in public with an offensive weapon in England and Wales. It now considers whether a reasonable person, in the victim’s place, would interpret such a threat as being one where there was an immediate risk of physical harm.

1. Corrosive products and substances - Offensive Weapons Act 2019, Part 1

Part 1 of the Act responds to the threat posed by the use of corrosive substances as a weapon to inflict serious harm. Whilst this type of crime is not new, the use of corrosives as a weapon is of significant concern given the life changing injuries that these substances can inflict. The measures provided by the Act strengthen the powers of the police, Trading Standards and other partners to be able to tackle these crimes.

The provisions in Part 1 are designed to restrict access to those products containing the most harmful corrosive substances by prohibiting the sale and delivery of corrosive products to under 18s. Part 1 also strengthens the powers of the police, making it an offence to possess a corrosive substance in a public place without good reason or lawful authority.

Sale and delivery of corrosive products

The Act will restrict access to the most harmful corrosive substances by under 18s by making it an offence to sell a corrosive product, whether over the counter or online, to someone under 18 years of age.

This part of the guidance sets out the statutory obligations placed on retailers, online sellers and marketplaces to ensure that they comply with the law and explains the defences available, which require that all reasonable precautions are taken and all due diligence exercised to avoid committing an offence.

In Scotland, the seller is required to have undertaken a number of specific steps in order to be able to make use of the defence. These would be that seller believed the person to whom the corrosive product was sold to be aged 18 or over, and either the seller had taken reasonable steps to establish the purchaser’s age or no reasonable person, based on the purchaser’s appearance, could have suspected they were under 18. Reasonable steps are prescribed as being that the seller was shown any of the documents listed (a passport, a EU photocard driving licence or such documents that Scottish Ministers may prescribe by order) and the document would have convinced a reasonable person. Following the UK’s exit from the European Union, there is a need to add UK driving licences to the list of prescribed documents. The Scottish Government intends, subject to approval being received from the Scottish Parliament in due course, to add them to the list once the Act has been commenced. This section of the guidance will be revised to list UK driving licences once the changes have come into force.

Definition

For the purposes of sections 1 to 4 of the Act relating to sales and deliveries, the definition of a “corrosive product” is as provided by Schedule 1 of the Act. Schedule 1 lists the particular substances and the concentration limit at which they fall within the definition of “corrosive product” for the purposes of this Act, reproduced in the table below. The definition also includes these substances with a higher concentration than the concentration limit set out in the table.

Name of substance and Chemical Abstracts Registry Number (CAS RN)	Concentration limit (weight in weight)
Ammonium hydroxide (CAS RN 1336-21-6)	10% w/w
Formic acid (CAS RN 64-18-6)	10% w/w
Hydrochloric acid (CAS RN 7647-01-0)	10% w/w
Hydrofluoric acid (CAS RN 7664-39-3)	0% w/w
Nitric acid (CAS RN 7697-37-2)	3% w/w
Phosphoric acid (CAS RN 7664-38-2)	70% w/w
Sodium hydroxide (CAS RN 1310-73-2)	12% w/w
Sodium hypochlorite (CAS RN 7681-52-9)	10% w/w
Sulfuric acid (CAS RN 7664-93-9)	15% w/w

The approach to defining corrosive products by substance, chemical abstracts registry number and concentration limit in Schedule 1 provides clarity on the products which will be subject to the new age restrictions on sales. This type of approach is one which should be familiar to retailers and manufacturers and, by setting out the exact substance and the specific concentration limit, this will assist sellers in identifying those products that they may be selling which will be captured by these age restrictions.

The substances and concentrations limits are based on scientific advice provided by the Defence Science and Technology Laboratory and previously from the former Home Office Centre for Applied Science and Technology. The substances defined as corrosive products in Schedule 1 include those which we know have been used in attacks and also those which have the potential to be used as a weapon to inflict serious harm and life changing injuries. The concentration limits reflect the thresholds at which these substances would be most likely to cause potentially permanent or life changing injuries.

The Defence Science and Technology Laboratory provided a paper during the House of Commons Committee stage of the Offensive Weapons Act 2019, which summarises the scientific advice to the Home Office on the type and identity of corrosive substances used in attacks.

Some of the substances defined as corrosive products are commonly used in such products as high strength drain cleaners/unblockers, paint strippers, brick and patio cleaners, cleaning products, rust or limescale removers. However, products such as normal strength household bleach and cleaners will not be caught by the age restrictions on sales as they tend to be more of an irritant and do not contain corrosive chemicals at the concentrations set out in the Schedule. Sellers will, however, need to check their product ranges to ensure that they know which products meet the definition of a corrosive product and must not be sold to a person under 18.

We have not listed current products on the market in this guidance that are likely to contain substances at a concentration limit that will bring them within the definition of corrosive product in Schedule 1. Any such list would need to be constantly updated and subject to change as new products come on to the market and there is always the risk of omitting a product. It is the responsibility of the seller to ensure that they identify any products that they stock which meet the definition of a corrosive product to which the age restriction applies. This may mean that sellers will need to consult with suppliers (including manufacturers, importers and distributors) in order to identify these products.

Exemption

The Act exempts any form of battery from the sales and delivery provisions given the wide uses of batteries in everyday items and the volume of batteries which are in everyday use. The substance or product has to be contained within a battery. This does not exempt battery acid itself from the sales and delivery provisions nor acid filler bottles.

Identification of products caught by the age restrictions

Sellers will need to identify any products that they sell which contain these substances at the concentration levels which would bring them within the Act’s definition of a corrosive product. Where necessary, they should work with their suppliers in doing so.

The REACH Regulation (as preserved by the European Union (Withdrawal) Act 2018 and amended by the REACH etc. (Amendment etc.) (EU Exit) Regulations 2019)^{[footnote 2]} will be of assistance in helping sellers to identify products. It places a specific duty on suppliers (whether manufacturers, importers, distributors, or downstream users) of certain chemical substances or mixtures to provide a safety data sheet (SDS). SDSs include information about the properties of the substance or mixture, its hazards and instructions for handling, disposal and transport, as well as first-aid, fire-fighting and exposure control measures. SDSs enable this information to be passed down through the supply chain including to retailers to help ensure that substances are safely managed.

An SDS must be provided to the recipient free of charge, on paper or electronically, e.g. postal delivery, fax or email, no later than the date on which the substance or mixture is first supplied. There is a positive duty on the supplier to deliver the SDS (and every required update) rather than just make it available passively, for example on the internet or reactively by delivering it on request. Where the recipient re-orders substances or mixtures, the supplier does not need to re-supply the SDS, unless the content has changed, or the sheet has been updated.

If the purchasing of any corrosive products is done through wholesalers, they would be considered to be a distributor and SDSs should be provided to the seller. Where this does not occur, this should be raised with the wholesaler concerned, to establish whether the products in question are caught by the age restrictions.

Separate to the REACH Regulations, as well as identifying any corrosive products that they sell, sellers need to take steps to ensure that their staff are aware that these products are subject to age restrictions through actions such as awareness raising, flagging those products caught by the age restrictions to staff, and incorporating corrosive products into any internal training programmes provided to staff on the sale of age restricted products.

In advance of the Offensive Weapons Act 2019 being introduced, the government worked with retailers to put in place a set of voluntary commitments on the responsible sale of corrosive products to help encourage responsible sales of those products which contain harmful levels of corrosives. These commitments were developed with the British Retail Consortium and tested with the British Independent Retailers Association and the Association of Convenience Stores to ensure that they were proportionate and that they worked in the retail environment.

A number of retailers have signed up to these voluntary commitments, and Section 1 of the Act now places key elements of these on to a statutory footing.

In the case of business to business supply and purchasing of corrosive products, the sale and delivery provisions would not apply as the sale is being made to a business and not to a person under 18. The only exception is where a business is run by a sole trader who is under 18. In these circumstances, the sole trader would need to make arrangements for the corrosive products to be purchased by, and delivered to, a person who is over 18.

Defences

England and Wales – It is a defence for a seller charged with selling a corrosive product to an under 18 to show that they had taken all reasonable precautions and exercised all due diligence to avoid committing the offence. This is similar to the defence available in relation to the sale of knives etc to under 18s provided by section 141A of the Criminal Justice Act 1988.

The seller will need to decide which precautions would be reasonable and how to satisfy the requirement of exercising all due diligence. This could, for example, be through checking ages of buyers by requiring the person to produce recognised documents such as a passport or driving licence to prove age or, if it is an online sale, through the use of a system to check the age of the purchaser.

Sellers and collection points will need to consider whether to apply ‘Think 21’ or ‘Think 25’ policies as appropriate when verifying age. As part of this, they will also need to consider how best to support their staff through their existing internal processes, such as till alerts, supervision, awareness raising about corrosive products subject to age restrictions, and the inclusion of any corrosive products that they sell or handle as a collection point in age restricted sales training. The government anticipates that applying a common-sense approach would mean that by undertaking measures such as those set out above, the seller will have exercised all due diligence to prevent the under-age sale of corrosive products.

Scotland – It is a defence for a seller charged with this offence to show that they believed the person to whom the product was sold was aged 18 or over and either the accused had taken reasonable steps to establish the purchaser’s age or no reasonable person, based on the purchaser’s appearance, could have suspected they were under 18. This is similar to how the defence for the sale of bladed articles to under 18s operates. Reasonable steps are prescribed as being that the accused was shown any of the documents listed in subsection (5) (passport, EU photocard driving licence or such documents that Scottish Ministers may prescribe by order) and the document would have convinced any reasonable person. Following the UK’s exit from the European Union, the Scottish Government with approval from the Scottish Parliament has added United Kingdom photocard driving licences to the list of prescribed documents. This amendment was made by the Offensive Weapons Act 2019 (Prescribed Documents) (Scotland) Order 2022 which came into force on 28 June 2022.

The legislation does not set out what age verification systems should be utilised by the seller or delivery company to satisfy the defences available to them in England, Wales and Scotland. The intention of this guidance is to preserve flexibility for the seller or delivery company in determining which of the wide range of age verification products or systems that are available are best suited to their business requirements in order to fulfil the requirements of the defence.

Amending Schedule 1

Section 1(12) of the Act provides the relevant national authority (i.e. the Secretary of State) with a power to be able to amend, add or remove substances and concentration limits in Schedule 1 through secondary legislation after consultation with persons likely to be affected by the regulations and whom the Secretary of State considers appropriate to consult.

The Home Office will keep the substances and concentration limits under review by working closely with the National Police Chiefs’ Council and forensic providers on the substances and concentrations that police forces are reporting finding either in relation to attacks or individuals being found in possession of corrosive substances. We will also continue to work closely with retail trade associations, manufacturers and the Defence Science and Technology Laboratory as part of this process.

Defence to remote sale of corrosive products to persons under 18

Section 2 of the Act defines a remote sale as being where the seller or the seller’s representative was not in the presence of the buyer, and therefore includes sales which are made online, over the telephone or by post.

When a corrosive product is sold remotely, the seller needs to meet certain conditions if they want to rely on the defence under section 1 of the Act that they took all reasonable precautions and exercised all due diligence to avoid selling to a person under 18.

In England and Wales all the following conditions must be met, as a minimum:

• the seller has a system in place to verify that the purchaser is not under 18 and that the system is likely to prevent the purchase of a corrosive product by a person under 18
• the package when dispatched by the seller is clearly marked that it both contains a corrosive product and that it can only be delivered and handed over to a person aged 18 or over (whether the purchaser or someone representing them)
• the seller has taken all reasonable precautions and exercised all due diligence to ensure that when the package is delivered, it is handed over to a person aged 18 or over. This applies whether the seller delivers the package themselves or through a third party i.e. by staff at a collection point
• the seller does not deliver the package, or arrange for it to be delivered, to a locker

In Scotland it will be a defence for the seller to show that all the conditions set out above have been met, and a seller will have shown that they have met a condition by producing sufficient evidence and the contrary has not been proved beyond reasonable doubt.

Age verification systems

The Offensive Weapons Act 2019 does not prescribe a specific age verification system that a remote seller must have in place. It is up to sellers to decide whether the system meets the requirement that it ‘is likely to prevent persons under the age of 18 from buying corrosive products by that method’.

• In store age verification:

Sellers might decide to adopt their existing ‘Think 21’ or ‘Think 25’ policies to ensure that anyone who appears to be below the age of 21 or 25 must provide acceptable identification before purchasing a corrosive product; i.e. a passport, driving licence or other valid form of identification. This approach will also mean that visual assessment is sufficient for anyone who is clearly over the ages of 21 or 25.

• Remote age verification:

There are a range of age verification processes or systems available, and the government was clear during the passage of the legislation that it did not want to issue standards for systems for electronic age verification as decisions on which systems to procure and use are a matter for the seller and for them to determine whether they meet the requirements of the Act. It is for the seller to decide what system works best for their business model and will allow them to demonstrate that they took all reasonable precautions and exercised all due diligence.

Where a retailer is prosecuted for an offence under Section 1, the courts will take into account whether the retailer has an adequate age verification system in place when considering the defence under Section 2. It is the government’s view that the following examples used by remote sellers would be insufficient to demonstrate that the seller had an adequate system and that robust age verification has taken place:

• relying on the person purchasing the item ticking a box confirming they are over 18
• relying in any other way on information provided by the buyer that they are over 18 without conducting additional checks
• using payment systems that may require the customer to be over 18 but which do not verify age at point of purchase

Age verification at collection points:

For collection points, sellers need to ensure that at the point of dispatch to the collection point any package is clearly marked that it contains a corrosive product and should not be handed over to anyone under the age of 18. Sellers also need to take all reasonable precautions and exercise all due diligence to ensure that, when supplied to the buyer from a collection point, that the package would be delivered into the hands of a person over 18. This includes precautions and due diligence to ensure that collection points would not hand over any packages containing corrosive products to under 18s if they wanted to rely on the defence if charged with an offence. In the government’s view, this could include ensuring that collection points would adopt and apply ‘Think 21’ or ‘Think 25’ policies, if these are not already in place, to ensure that anyone that looks under 21 or 25 must provide identification to show they are over 18 before collecting a corrosive product, whether they are the actual purchaser or collecting on the purchaser’s behalf (though sellers will have to satisfy themselves in any event that all reasonable precautions have been taken).

Package labelling

All packages containing a corrosive product must be clearly marked to indicate that it contains a corrosive product and that it should only be delivered into the hands of a person aged 18 or over. The legislation does not stipulate the type of labelling or any of the characteristics of it, and this allows sellers to determine how to comply with the labelling requirement. A seller will need to determine whether the requirement may be met by a sticker stating that the item is a corrosive product and not to be handed over to someone aged under 18.

Sellers could consider the use of symbols as part of the package labelling process. However, sellers will not be able to use the GB CLP (Classification, Labelling and Packaging of substances and mixtures) corrosive hazard pictogram except where the substance or mixture has been classified as corrosive using the CLP criteria and as part of a complete CLP hazard label. This is because the GB CLP Regulation (retained and amended version of Regulation (EC) No. 1272/2008) provides the legal framework for suppliers to classify all intrinsic hazardous properties (classification) of the substances and mixtures they place on the market, and to communicate that hazard information throughout the chemicals supply chain. The measures in the Offensive Weapons Act 2019 are only concerned with preventing the sale and delivery of corrosive products to under 18s.

The GB CLP Regulation allows for additional labelling information to be included on packaging provided that such information does not make it more difficult to identify the hazard elements already provided and does not contradict or cast doubt on the validity of those elements. Where the GB CLP corrosive pictogram appears, it must sit alongside the relevant legally mandated GB CLP hazard and precautionary phrasing. Therefore, it may be possible for sellers to use a separate, differently designed corrosive hazard symbol to ensure it does not appear as a black image on a white background inside the diamond with distinctive red borders used for the legally designated GB CLP hazard pictograms. A differently designed corrosive hazard symbol could, for example, be used separately together with wording that this product should only be delivered to someone aged 18 or over.

The GB CLP Regulation also has requirements about the packaging used to supply hazardous substances and mixtures, including those classified as corrosive. The packaging has to be strong and solid and be designed and constructed to securely contain the chemical throughout its supply. In certain cases, such packaging may also need to include child resistant fastenings and tactile warning devices.

More information about the GB CLP Regulation and its labelling requirements can be found on the Health and Safety Executive’s (HSE) website.

The final arbiter in any particular case will be the courts. However, in the government’s view, it is unlikely that electronic labels used on handheld signature devices often used by delivery companies and couriers would satisfy the requirement to label the product. The Act says that the package itself must be clearly labelled. Clear and visible labelling will be important for retail and delivery staff and couriers so that they are fully aware that the package contains a corrosive product and must not be handed over to someone under 18.

Definition of a locker

A locker is defined as a lockable container to which the package was delivered with a view to it being collected by the purchaser or someone representing them such as those positioned at petrol stations or retail outlets which involve a code being sent to the purchaser in order to open the locker. These do not easily enable age verification to be carried out at the point of collection.

Delivery of corrosive products to residential premises

When a corrosive product is sold remotely, section 3 of the Act makes it an offence for the seller to arrange to deliver or arrange for its delivery to residential premises. It is also an offence for the seller to deliver or arrange for its delivery to a locker for collection. The purpose of this section is to ensure that a corrosive product that is sold remotely cannot be delivered into the hands of a person who is under 18 or just left either at the address or a collection point because age cannot then be verified at the point of delivery.

This provision also ensures that for remote sales, the purchaser or their representative will be subject to age verification checks when they collect the corrosive product instore or from a collection point

Residential premises

“Residential premises” are defined for the purposes of the Act as premises which are used solely for residential purposes. This definition has been used to ensure that deliveries of corrosive products can be made to businesses that are run from residential premises.

Defences

England and Wales – It is a defence for a seller charged with this offence to prove that they had taken all reasonable precautions and exercised all due diligence to avoid committing the offence. The seller will need to determine what checks need to be made to ensure that delivery is not made to residential premises and that a business is carried out at the address. Examples of these types of checks may include looking up the sole trader, the company or the partnership on the internet and checking the address or asking the buyer to provide evidence that he or she is running a business from the address.

Scotland – It is a defence for a seller charged with this offence to show that they took all reasonable precautions and exercised all due diligence to avoid committing the offence. The accused would need to produce sufficient evidence in relation to the defence and the contrary not be proved beyond reasonable doubt.

Delivery of corrosive products to persons under 18 where the seller is outside the UK

Section 4 of the Act makes it an offence for a delivery company that has entered in an arrangement with a seller of corrosive products who is outside the UK, to deliver the products to a person under 18 in the UK. This applies where corrosive products have been sold remotely, whether by telephone, online or by post. The purpose is to reduce the risk that under 18s seek to buy corrosive products from overseas sellers in an attempt to circumvent the law that applies to UK based sellers.

For an offence to have been committed, the UK delivery company would need to have entered into an arrangement with an overseas seller to deliver corrosive products in the UK, and the delivery company would need to have delivered the corrosive product into the hands of a person aged under 18 or left it at the address without age verification taking place.

Defences

England and Wales – It is a defence for a delivery company charged with this offence to prove that they had taken all reasonable precautions and exercised all due diligence to avoid committing the offence. This would entail ensuring that age verification had taken place at the point of delivery to ensure that the corrosive product was not handed to a person under 18.

Scotland – It is a defence for a delivery company charged with this offence to show that they believed the person to whom the product was delivered was 18 or over and either the accused had taken reasonable steps to establish the purchaser’s age or no reasonable person, based on the purchaser’s appearance, could have suspected they were under 18. Reasonable steps are prescribed as being that the accused was shown any of the documents listed in subsection (8) (passport, EU photocard driving licence or such documents that Scottish Ministers may prescribe by order) and the document would have convinced any reasonable person. Following the UK’s exit from the European Union, the Scottish Government with approval from the Scottish Parliament has added United Kingdom photocard driving licences to the list of prescribed documents. This amendment was made by the Offensive Weapons Act 2019 (Prescribed Documents) (Scotland) Order 2022 which came into force on 28 June 2022.

Enforcement of measures on sales and delivery of corrosive products

Both the police and Trading Standards are able to enforce sections 1 to 4 of the Act.

Although not a specific requirement within the Act, in relation to over the counter sales, there is likely to be a need to identify which shops are selling corrosive products (within the terms of this Act) in the local area to ensure that they are complying with the provisions of the Act through measures such as awareness raising and test purchasing operations. The legislation does not require sellers of corrosive products to register in their local area, but this does not preclude the police or Trading Standards from deciding to establish a local register. For online sellers, there will also be a need to identify which online sellers and marketplaces are selling corrosive products, for the purposes of test purchasing operations.

The enforcement of the provisions on the sales of corrosive products is likely to be through similar practices and approaches as taken by the police and Trading Standards for the sale of knives.

Presumptions in proceedings in Scotland for offences in respect of sale and delivery of corrosive products

Section 5 of the Act relates to Scotland only. It provides for certain evidential presumptions in Scotland relating to the nature of substances that are, or were, in containers in relation to offences under sections 1, 3 or 4 involving a corrosive product. The presumptions have effect unless any party is able to rebut them, and notice must be given at least 7 days ahead of trial of an intent to rebut the presumptions. The presumptions are that:

• a description on a container (whether open or sealed) where the container is found to have a substance within it, is presumed to be a description of the substance within the container; and

• in the case of an open container where no substance, or a substance in an amount insufficient to allow analysis, is recovered, and if the container was sealed at the time it was sold or delivered, then the description on the container is presumed to describe what was in the container at the time of sale or delivery.

Possession of corrosive substances

Section 6 of the Act makes it an offence for a person to have a corrosive substance – a substance which is capable of burning human skin by corrosion (see the definition below) – with them in a public place. It sets out a defence for the person charged with the offence to prove that they had good reason or lawful authority to have the substance in public, including for use at work.

Section 6 addresses concern about people carrying corrosive substances on their person for use in a violent attack or other criminal acts. It places the onus on the person in possession of the substance, rather than the police or prosecution, to prove that they had good reason or lawful authority to have the substance in a public place.

Previously, the offences under the Prevention of Crime Act 1953 have been used to prosecute anyone in possession of acid or other corrosive substances with the intention of causing harm, as the individual in possession of the corrosive substance may be considered to be in possession of an offensive weapon. However, the police and prosecution needed to prove that the person in question was carrying the corrosive substance with the intention of causing injury. This is no longer the case with the offence in section 6 of the Offensive Weapons Act 2019, with the approach mirroring legislation for the possession of knives in public.

Use of persuasive and evidential burdens

The offence places a reverse burden on the individual if charged with the offence to prove facts within his/her knowledge which should be relatively easy to establish, such as when and where they had purchased the substance, the nature of their employment, for what purpose and if they used it as part of their work.

We expect that the circumstances in which the individual is likely to need to establish a defence are those where there is a suspicion or intelligence that an individual or group are carrying a corrosive substance which they might use for an attack. If the person or member of the group were intending to use the substance for a legitimate purpose, the facts enabling them to establish the good reason defence would be within their knowledge and they would readily be able to provide evidence for this. For example, if they were in possession of a drain cleaner, they should be able to explain why they had it, for what they were going to use it, and how.

The government response to the Joint Committee on Human Rights provides useful information on this issue.

Definition

For the purposes of section 6, a “corrosive substance” is defined as a substance capable of burning human skin by corrosion. The definition is specific to the offence in section 6 and is focused on the effects of the substance, as it is known that corrosives are often decanted into containers or bottles to make them easier to conceal and use as a weapon.

The definition means that the most common household cleaning products would not be captured by the possession offence. It would not cover, for example, household bleach or standard household cleaners or liquids such as table vinegar which are not strong enough to burn human skin by corrosion. It would, however, capture strong drain cleaners and unblockers, brick and patio cleaners, paint strippers and industrial cleaning agents which members of the public may purchase for legitimate purposes. Most of these products will also be marked to show that they contain a strong corrosive and that they can seriously burn the skin. The term “corrosive substance” includes the corrosive products listed in Schedule 1 of the Act but is intended to cover a wider set of products and substances.

The definition of public place for the possession offence in England and Wales includes any place to which, at the time in question, the public have or are permitted access, whether on payment or otherwise.

Defences

It is a defence for a person charged with this offence, in England and Wales, to prove that they had good reason or lawful authority to have the corrosive substance with them in a public place. The government’s view is that a member of the public who had bought a corrosive substance and was taking it home for the purpose for which it had been designed – for example, to unblock their drain or for decorating/DIY purposes – would have a good reason.

In the government’s view a person would have good reason to have possession of a corrosive substance that they used in the course of their business or employment. For example, a plumber who has a drain unblocker, a builder who has a brick cleaner, an employee of a cleaning company who has industrial strength cleaning agents or an employee of a swimming pool cleaning company who has swimming pool chemicals.

The government response to the Joint Committee on Human Rights provides useful information on this.

In terms of lawful authority, under the Poisons Act 1972 there is a licensing regime for regulated substances and members of the public require a Home Office licence to import, acquire, possess or use a regulated substance. Regulated substances under the Act include certain corrosive acids, for example nitric acid at above 3% concentration and sulfuric acid at above 15% concentration. As a result, there may be situations where a Home Office licence holder has purchased these acids or a corrosive product containing one of these substances and is transporting the substance or product home.

Relationship with the Poisons Act 1972

A number of corrosives listed in Schedule 1 of the Act are also listed, in the same concentrations, as explosive precursors and poisons under the Poisons Act 1972 controls. These are:

Regulated substances

• Nitric acid: 3% w/w
• Sulfuric acid: 15% w/w

Reportable substances

• Hydrochloric acid: 10% w/w
• Hydrofluoric acid: 0% w/w
• Sodium hydroxide: 12% w/w
• Ammonium hydroxide: 10% w/w

The Offensive Weapons Act 2019 also defines Phosphoric acid at 70% or above and Formic acid at 10% or above as corrosive products. The concentration limits are based on scientific advice from the Defence Science and Technology Laboratory on the thresholds at which these substances would be most likely to cause permanent or life changing injuries. However, they are also both reportable substances under the Poisons Act – Formic acid at 25% w/w and Phosphoric acid at any concentration threshold.

The Poisons Act 1972 was amended via the Deregulation Act 2015 and the Control of Poisons and Explosives Precursors Regulations 2015 were introduced to create a cohesive regime to control sales of explosives precursors and poisons.

Certain chemicals can be used in the illicit manufacture of explosives or to cause harm and, since 26 May 2015, members of the public who want to acquire or import these chemicals must hold an explosives precursors and poisons (EPP) licence issued by the Home Office and an associated photographic identity document. Since 3 March 2016, members of the public who want to possess or use these chemicals must also hold an EPP licence issued by the Home Office and an associated photographic identity document.

Any suspicious transactions (business to consumer and business to business) of regulated substances and reportable substances must be reported. Please make your report online: Report suspicious chemical activity.

However, if you are unable to report in this way you can currently still make a report to the national contact point on 0800 789321.

Any significant disappearances or thefts of regulated substances and reportable substances must be reported to your local police force using 101 (or 999 in an emergency). Please include a reference to the Poisons Act in your report and if it is a regulated/reportable explosive precursor/poison.

The guidance on selling or supplying explosives precursors and poisons provides further information to businesses.

Search for corrosive substances: England and Wales

Section 10 of the Act provides the police with the appropriate powers under the Police and Criminal Evidence Act 1984 to be able to investigate and enforce the new offence of possession of a corrosive substance in a public place. This includes ensuring that a police officer may search any person or vehicle or anything which is in or on a vehicle for a corrosive substance, and able to seize a corrosive substance if it is discovered during the course of the search. The police officer must have reasonable grounds or suspicion that the person is carrying a corrosive substance on their person or within their vehicle before conducting a stop and search.

Consequential amendments relating to sentencing

Section 13 makes consequential amendments to:

• the Prevention of Crime Act 1953 and the Criminal Justice Act 1988 to provide that a conviction in England and Wales under section 6 of the Offensive Weapons Act 2019 is a “relevant conviction” for the purposes of the sentencing provisions set out in sections 139, 139A and 139AA of the 1988 Act and in the 1953 Act

• section 37(1A) of the Mental Health Act 1983 to ensure that where a person is convicted of the section 6 possession offence and has at least one relevant conviction, and the court is satisfied that they are suffering from mental health problems, they would be able to authorise the person’s admission and detention in such hospital specified in the order or place the person under the guardianship of a local social services authority or such person approved by a local social services authority

• the Criminal Justice Act 1988 in relation to the review of sentences in cases where a court did not impose an appropriate custodial sentence to enable a conviction required by section 8(2) of this Act to be taken into account. The section also amends the offences which are previous relevant convictions in relation to the offences under sections 139 and 139A of the 1988 Act (offences relating to bladed articles and offensive weapons) to include a conviction under section 6 for possession of a corrosive substance in public

• section 12(1A) of the Powers of Criminal Courts (Sentencing) Act 2000 to prevent a court from making an order for absolute or conditional discharge when sentencing an individual where they have been convicted of possessing a corrosive substance in public and have at least one relevant conviction under section 6

• section 144 of the Criminal Justice Act 2003, and reduction in sentences for guilty pleas, to include cases where an individual has been convicted of possessing a corrosive substance in public and has at least one relevant conviction, and an appropriate custodial sentence is being considered by the court under section 6

Key note

Corrosive products are substances with certain concentration limits (or higher) that must not be sold or delivered to under 18s. Corrosive products, if misused, can lead to serious harm and life changing injuries.

Corrosive substances are substances which are capable of burning human skin by corrosion. It includes substances that would be regarded as corrosive products but it also covers a wider set of substances and products that do not cause the same level of serious harm and injuries.

A person must not have a corrosive substance in a public place without a good reason or lawful authority.

2. Sale and delivery of knives etc - Offensive Weapons Act 2019, Part 3

Part 3 of the Offensive Weapons Act 2019 strengthens the law on prohibiting the sale of knives and other bladed articles to under 18s, and in relation to ‘remote’ sales; that is, where the seller and the buyer are not in each other’s presence when the sale takes place, such as online sales, mail order or over the telephone sales.

Sale of bladed articles to persons under 18

It is already an offence to sell articles with blade or sharp point to a person under 18, unless it is a knife with a folding blade of 3 inches (7.62 cm) or less^{[footnote 3]}. Section 34 of the Offensive Weapons Act 2019 extends the range of items to which the existing offence applies.

The existing law

Section 141A of the Criminal Justice Act 1988 prohibits the sale of the following bladed articles to under 18s:

• any knife, knife blade or razor blade (other than a razor blade permanently enclosed in a cartridge or housing where less than 2mm is exposed)^{[footnote 4]}
• any axe
• any other article which has a blade or which is sharply pointed and which is made or adapted for use for causing injury to the person

The 1988 Act does not provide legal definitions of these items, so the words carry their normal meanings. This means, for example, that an item that would commonly be described as a knife would be considered as such for the purposes of the legislation. While it is ultimately for the courts to determine whether a specific item falls within the above categories, the government expects retailers to act responsibly and to consider carefully whether an item could commonly be considered as a knife when selling to under 18s.

The government’s view is that the following items are likely fall within the meaning of the 1988 Act prohibition on the sale to under 18s:

• any kitchen knife regardless of size or design
• cutlery knives
• bread knives
• knives that can be used for the purpose of hobbies and trades regardless of whether they are marketed as knives, for instance, Stanley knives and snap-off cutters
• cut-throat razors
• gardening and farming tools or any other trade tool that could commonly be described as a knife
• butcher knives, including meat cleavers
• utility knives
• survival knives
• machetes
• swords

What the Offensive Weapons Act 2019 now changes

Section 34 extends the prohibition on sales to under 18s to include those offensive weapons that are prohibited by section 141 of the Criminal Justice Act 1988^{[footnote 5]}, which includes butterfly knives and push daggers^{[footnote 6]}. When the 1988 legislation was passed, the sale and supply of these weapons was already prohibited^{[footnote 7]} and it was not considered necessary to specifically prohibit sale to under 18s. However, legislative exclusions and defences relating to these weapons introduced since 1988 means that it is possible that offensive weapons covered by section 141 could be sold to a person under 18. The Offensive Weapons Act 2019 now puts beyond doubt that weapons covered by section 141 of the 1988 Act cannot be sold to under 18s and that none of the existing exemptions, which can include use for a sporting activity, historical re-enactment, or religious reason, can apply in the case of under 18s.

Key note

It is not an offence to sell or supply a pocket knife to someone under the age of 18 where the knife has a folding blade which is 3 inches (7.62 cm) or less in length^{[footnote 8]}.

Annex A to this guidance sets out the full list of weapons that are prohibited by section 141 of the Criminal Justice Act 1988 and set out in the Criminal Justice Act (Offensive Weapons) Order 1988 (SI 1998/2019) as amended.

Flick knives and gravity knives

The Restriction of Offensive Weapons Act 1959 prohibits the supply of flick knives and gravity knives but does not have the exemptions or defences that can apply to the offensive weapons prohibited by the 1988 Act. All sales of these knives, irrespective of the age of the purchaser, are and remain an offence^{[footnote 9]}.

Defence to sale of bladed articles to persons under 18: England and Wales

Section 35 of the Act provides defences that can apply to the offence of selling to under 18s, where the sale was made remotely. As set out above, remote sales include online sales, mail-order or over the telephone sales. The defence requires proof that the seller took all reasonable precautions and exercised all due diligence to avoid committing the offence of selling to an under 18^{[footnote 10]}. To rely on the defence, as a minimum, all the following conditions below must be met:

• the seller has a system in place to verify the age of the purchaser and that they are not under 18, and that the system is likely to prevent purchases by under 18s

• the package when dispatched by the seller is clearly marked that it both contains a bladed article and that it can only be delivered and handed over to a person aged 18 or over (whether the purchaser or someone representing them)

• the seller has taken all reasonable precautions and exercised all due diligence to ensure that when the package is delivered, it is handed over to a person aged 18 or over. This applies whether the seller delivers the package themselves or through a third party, for example by staff at a collection point

• the seller does not deliver the package, or arrange for it to be delivered, to a locker

Age verification

The Act does not prescribe a specific age verification system that the seller must have in place. It is up to sellers to make a decision on whether the system they use meets the requirement that it ‘is likely to prevent persons under the age of 18 from buying such articles by that method’^{[footnote 11]}.

• In store age verification:

Sellers might decide to adopt their existing ‘Think 21’ or ‘Think 25’ policies to ensure that anyone who appears to be below the age of 21 or 25 must provide acceptable identification before making the purchase, such as a passport, driving licence or other valid form of identification. This approach will also mean that visual assessment is sufficient for anyone who is clearly over the ages of 21 or 25.

• Remote age verification:

There are a range of age verification processes or systems available, and the government was clear during the passage of the legislation that it did not want to issue standards for systems for electronic age verification as decisions on which systems to procure and use are a matter for the seller and for them to determine whether they meet the requirements of the Act. It is for the seller to decide what system works best for their business model and will allow them to demonstrate that they took all reasonable precautions and exercised all due diligence.

The courts will be the final arbiter as to whether the seller has put in place an adequate system, taking into account the particular facts in individual cases. However, it is the government’s view that the following examples used by remote sellers would not be sufficient to demonstrate that the seller had an adequate system and that robust age verification has taken place:

• relying on the person purchasing the item to tick a box confirming they are over 18

• relying in any other way on information provided by the buyer (other than a valid form of identification) that they are over 18 without conducting additional checks

• using payment systems that may require the customer to be over 18 but which do not verify age at point of purchase

Age verification at collection points

Collection points used by sellers must comply with the requirement that the sale of a bladed article should not be made to a person under 18 by taking all reasonable precautions and exercising due diligence. The seller will also need to ensure that the package containing the article is clearly marked as containing a blade or sharply pointed article and that it should only be supplied to a person aged over 18. Consideration should be given to whether to adopt and apply ‘Think 21’ or ‘Think 25’ policies, if not already in place, to require acceptable proof of age in appropriate circumstances, whether the person collecting the article is the purchaser themselves or collecting on his or her behalf.

Package labelling

All packages containing a bladed article must be clearly marked to indicate that it contains a bladed article and that it should only be delivered into the hands of a person aged 18 or over. The legislation does not stipulate the type of labelling or any of its characteristics, and so sellers will need to determine how best to comply with the labelling requirement.

In the government’s view, it is unlikely that electronic labels used on handheld signature devices as often used by delivery companies and couriers would satisfy the requirements of the Act. This requires that the package itself must be clearly labelled. Clear and visible labelling will be important for retail and delivery staff and couriers so that they are fully aware that the package contains an article that must not be handed to someone under 18.

Definition of a locker

The Act makes it an offence for the seller to deliver, or to arrange the delivery of, a bladed article to a locker because there is no means of verifying age at the point of collection. This covers lockable containers from which items are collected by purchasers or their representatives, such as lockers installed at petrol stations and retail outlets which involve a code being sent to the purchaser to open it. These do not easily enable age verification to be carried out at the point of collection.

Delivery of bladed products to residential premises

Bladed products

Section 38 of the Act makes it an offence for a seller to deliver, or arrange the delivery of, ‘bladed products’ to residential premises or to lockers. The term “bladed product” is a new term introduced by the Act and specifically means an item with a blade that is capable of causing a serious injury to a person which involves cutting that person’s skin.

Bladed products are a subset of the wider range of bladed articles to which section 141A of the Criminal Justice Act 1988 applies (i.e. any article with a blade or sharp point) discussed above.

The government’s view is that the items in the list below are unlikely to be considered bladed products for the purposes of section 38:

• cutlery knives (other than sharply pointed steak knives)
• utility knives with small cutting blades
• snap off cutters
• pizza cutters
• small cheese knives

The objective is to reduce access to dangerous knives and blades and their use in violent crime. Bladed articles, such as those listed above, in the government’s view are unlikely to fall within the definition of bladed product and may therefore still be delivered to residential premises.

Key note

Bladed articles

These are any knife, knife blade, razor blade, axe, or other article with a blade or sharp point and which is made or adapted to use for causing injury to a person. Bladed articles must not be sold to under 18s.

Bladed products

These are a subset of bladed articles and must not be delivered to residential premises unless certain conditions are met if sold remotely. To be a bladed product within the meaning of the Act the item must have a blade and be capable of causing serious injury to a person that involves cutting that person’s skin. This means that knives that could not cause such an injury will not fall within the definition of bladed product and can be delivered to residential premises. Most cutlery knives, for example, are therefore unlikely to be considered as bladed products.

Residential premises

The Act defines “residential premises” as premises used solely for residential purposes. This means that if premises are used for both residential and business purposes i.e. where a person runs a business from their home, it is possible to deliver bladed products to their address. It is for the seller to satisfy themselves that the address is not used solely for residential purposes.

The seller

The offence of delivering, or arranging the delivery of, bladed products to residential premises or to lockers applies to sellers who themselves deliver items (i.e. through their delivery arm) and to sellers who arrange for delivery to a residential address by a delivery company.

There are defences available to the seller under section 40 of the Act, including where the company took all reasonable precautions and exercised all due diligence to prevent the item being delivered to a person under 18. This is likely to include where the seller complies with the conditions set out in section 35 of the Act such as having an adequate system of age verification in place, labelled packaging, and taking measures to ensure the package is only delivered into the hands of someone over 18 years of age.

Where no such arrangements are in place in respect of deliveries to residential premises, the item will have to be collected in person at a collection point instead of being delivered to residential premises. It will then be for the collection point to make sure the package is handed to someone over the age of 18.

Defences to offences of delivering bladed products

Section 40 of the Act provides defences to the offences of delivering, or arranging delivery of, a bladed product to residential premises or to a locker and the offence of delivering bladed products to a person under 18 at residential premises.

Defences – offence under section 38: the seller

The seller has a defence where they can show that they exercised all reasonable precautions and due diligence to prevent the item being delivered to a residential premises or locker. The seller will need to satisfy the court that they took appropriate steps to check the address was a business address; for example, by checking with Companies House, looking for details on the internet to confirm the recipient is a sole trader, company or partnership, or asking the buyer to provide information that he or she is running a business from the address given.

Where a seller is delivering the products themselves, e.g. through their delivery arm, they have a defence where they can demonstrate internal procedures were in place which were likely to ensure that, when delivered, the bladed product would not be handed to a person under 18. They also need to prove that they have taken all reasonable precautions and exercised all due diligence to ensure that this occurred. Whether or not the seller had adequate procedures in place would, ultimately, be a matter for the court, but the seller may be able to satisfy this requirement by following measures in respect of an adequate age verification system, labelled packaging and ensuring age checks are undertaken at the point of delivery.

Where a seller is arranging delivery of the product by a delivery company, the seller has a defence where they can demonstrate that they have arrangements in place with the delivery company which requires it to have arrangements in place to ensure that the bladed product would not be handed to a person under 18. The seller also needs to be able to show that they took all reasonable precautions and exercised all due diligence to ensure this occurred. Again, whether this is met is a matter for the courts, but sellers may want to consider contractual arrangements with the delivery company requiring age verification at the point of delivery and ensuring they monitor whether this is effective at preventing items reaching under 18s.

It is also a defence:

• if the bladed product was designed, manufactured or adapted for the buyer in accordance with the buyer’s specifications. Examples may include bespoke knives made to specific weight, length or shape; and

• if the seller reasonably believed the bladed product was for a sporting purpose or for historical re-enactment. Examples may include fencing foils or replicas of medieval swords.

These additional defences do not apply to the offence of a delivery company delivering products to a person under 18. They must still be handed to a person over the age of 18 at the point of delivery.

Defences – offence under section 39: the delivery company

There is a defence available to delivery companies, under section 40(7) of the Act, where the company took all reasonable precautions and exercised all due diligence to prevent the item being delivered to a person under 18.

Age verification

It is up to the seller and the delivery company to decide how they will ensure that packages containing bladed products (in the case of sellers based in the UK) are not delivered to a person under 18. All packages containing a bladed product must be clearly marked to indicate that it contains an age restricted product and that it should only be delivered into the hands of a person aged 18 or over.

Delivery companies may need to make anyone who delivers the product on behalf of the company aware of the legislation and the importance of age checks. They will want to ensure that they have internal systems in place that confirm that the package has not been delivered into the hands of a person under 18 in order to reassure themselves that their systems are robust, as well as to reassure sellers and the courts, if needed.

Delivery of bladed articles to persons under 18 - seller is based outside the UK

Section 42 of the Act makes it an offence for a delivery company, who has entered into an arrangement with a seller based outside the UK, to deliver a bladed article to a person under 18.

The criminal liability attaches to delivery companies who enter into arrangements with a non-UK based seller for the delivery of bladed articles. If the delivery company has not entered such arrangements, or they do not know when entering the arrangement that it covered the delivery of a bladed article, no offence is committed. This is a corporate criminal liability, not one with individual liability. There is a defence available to delivery companies where they can prove that they took all reasonable precautions and exercised due diligence to avoid the commission of the offence.

This offence largely mirrors the offence on delivery companies in section 39 of the Act but, in this case, it applies to bladed articles and to deliveries to both residential and business premises. As set out previously, a bladed article is a knife or knife blade or razor blade, axe or other article with a blade or sharp point made or adapted for use for causing injury to the person^{[footnote 12]}. The offence in section 42 covers bladed articles (rather than just bladed products) because sellers based abroad may not be able to determine when they sell a bladed article whether the delivery address is for a residential or a business address.

Age verification on delivery

It is up to the seller and the delivery company to decide how they will ensure that packages containing bladed articles (in the case of sellers based outside of the UK) are not delivered to a person under 18. To assist delivery companies, all packages containing a bladed article should be clearly marked to indicate that it contains an age restricted product, and that it should only be delivered into the hands of a person aged 18 or over.

Delivery companies may need to make anyone who delivers the product on behalf of the company aware of the legislation and the importance of age verification. They will want to ensure that they have internal systems in place that confirm that the package has not been delivered into the hands of a person under 18 in order to reassure themselves that their systems are robust, as well as to reassure courts if needed.

Further guidance is available on the legislation and case law relating to knives and offensive weapons pre-dating the Offences Weapons Act 2019:

• Knives and offensive weapons legislation
• Offensive weapons case law

3. Possession etc of certain offensive weapons - Offensive Weapons Act 2019, Part 4

Part 4 of the Act strengthens legislation in relation to the possession of bladed articles and certain dangerous and offensive weapons. It extends the existing possession offences in a public place and school premises to include further education premises.

The Act also prohibits the possession in private of dangerous and offensive weapons to which the Restriction of Offensive Weapons Act 1959 and the Criminal Justice Act 1988 apply. Prior to the changes made by the Act, where the police find a zombie knife, a flick knife or a butterfly knife, for example, in someone’s home, they can only take action and remove the knife in question if it is considered to be evidence in a criminal investigation. The Offensive Weapons Act 2019 will allow the police to remove such weapons held in private.

The Act also amends the definition of a flick knife to update it to ensure that modern designs are also prohibited.

Finally, Part 4 of the Act expands the list of prohibited offensive weapons to include cyclone knives.

The measures in Part 4 prohibiting the possession of offensive weapons cannot come into force until a period for the surrender of these items has taken place. The Act provides for compensation to be paid to those who lawfully owned the offensive weapons covered by the relevant provisions of the Act on or immediately before 20 June 2018 when the Offensive Weapons Bill was first introduced in Parliament, and who surrender these in accordance with arrangements that have been set out in the Surrender of Offensive Weapons (Compensation) Regulations 2020. Following Parliamentary approval of the Regulations, the required surrender and compensation scheme commenced on 10 December 2020 and closed on 9 March 2021.

Amendments to the definition of “flick knife”

The sale, importation and supply of flick knives and gravity knives have been banned since 1959^{[footnote 13]}. Section 43 of the Act amends the definition of a “flick knife” in the Restriction of Offensive Weapons Act 1959^{[footnote 14]}. The amended definition now includes any knife that opens automatically from a closed position, or partially opened position, to a fully opened position by means of any manual pressure that is applied to a button, spring or other device which is contained either within the knife or is attached to the knife.

The previous definition of a “flick knife” referred to the mechanism that activates the blade being in, or attached to, the handle of the knife. This did not capture more recent designs of knives which are now available which mimic the speed and way in which a flick knife can be opened through a mechanism not in the handle itself.

It should be noted that knives that open manually, including those which can be opened with a thumb stud, do not fall under the amended definition of a flick knife. Similarly, those knives with a mechanism that opens the blade slightly, but not completely, and can only be fully opened by hand are also not within the amended definition. This means that there are types of knives that can still be sold which allows for the knife to be opened with one hand such as, for example, where a person is climbing a rockface and who needs to support their weight with one hand and open the knife with their other hand.

Prohibition on the possession of certain dangerous knives

Section 44 of the Act prohibits the possession in public and in private, of a flick or gravity knife as described in section 1 of the Restriction of Offensive Weapons Act 1959 (as amended by section 43 of the Offensive Weapons Act 2019).

Defences are provided for museums and galleries and persons acting on behalf of a museum or gallery in order for them to hold items of historical importance as part of their collections for cultural, artistic or educational purposes. There is also a defence for those in possession of the dangerous weapons who can prove that they have the weapon in their possession in order to make it available to a museum or gallery – this defence applies to both possession and importation^{[footnote 15]}.

Prohibition on the possession of offensive weapons on further education premises

Section 45 of the Act extends the existing offence under section 139A of the Criminal Justice Act 1988 prohibiting possession of an article with a blade or which is sharply pointed or an offensive weapon on school premises to also cover further education premises. An offensive weapon is any article made or adapted for use for causing injury to the person or intended for such use^{[footnote 16]}.

This change has been made in order to ensure that the legislation in relation to possession of bladed articles keeps up with the changes to the education environment. Section 45 provides the police with the powers they need where there are concerns that an individual is carrying an offensive weapon on further education premises.

The defences provided in section 139A of the Criminal Justice Act 1988 also apply to the possession of offensive weapons on further education premises; namely:

• good reason or lawful authority
• for use at work
• for educational purposes
• for religious reasons
• as part of any national costume

Where such a potential defence is available, it will be for the further education establishment to decide the policy on whether to allow such items on their premises.

Section 45 also provides the police with a power of entry to search for offensive weapons on further education premises by amending section 139B of the Criminal Justice Act 1988. This includes a power to search the premises and any person on those premises who the police officer has reasonable grounds for suspecting has unlawfully with them an article with blade or point, or offensive weapon.

Prohibition on the possession of offensive weapons

Section 46 of the Act amends section 141 of the Criminal Justice Act 1988 to make it a criminal offence to possess in private any weapon listed in the Criminal Justice Act 1988 (Offensive Weapons) Order 1988^{[footnote 17]}. The Criminal Justice Act 1988 made it an offence to manufacture, sell, hire, offer to sell or hire, possess for the purposes of sale or hire, import, lend or give weapons to which section 141 of the 1988 Act applies, and the amendment introduced through section 46 now makes unlawful the simple possession of these weapons. Annex A to this guidance lists the weapons subject to this prohibition, which includes knuckledusters, handclaws, disguised and stealth knives, and zombie knives.

In England and Wales, and in relation to this legislation, a private place is a place other than:

• a public place
• school premises
• further education premises, or
• a prison.

Possession in the places listed above is already prohibited under other legislative provisions.

The defences that already exist under section 141 of the Criminal Justice Act 1988 also apply to their simple possession. This includes that the weapon in question is:

• of historical importance
• to be used for historical re-enactments
• to be used for sporting activities
• for use in film and theatre
• possessed on behalf of a museum or gallery, or lent or hired by a museum or gallery for cultural, artistic or educational purposes
• possessed for religious reasons

Antique weapons, over 100 years old, are exempted from section 141 of the Criminal Justice Act 1988^{[footnote 18]}. This exemption now also applies to the offence of possessing such antique weapons.

There is also an exemption for swords with curved blades of 50cm or longer made before 1954 or those made at any time by traditional methods by hand.

Prohibition on the possession of offensive weapons: cyclone or spiral knives

Section 47 of the Act amends the Criminal Justice Act 1988 (Offensive Weapons) Order 1988 (SI 1988/2019) to include weapons known as cyclone knives or spiral knives. A cyclone or spiral knife is a weapon comprised of a handle with a blade with two or more cutting edges, each of which forms a helix and a sharp point at the end of the blade. The effect of including these weapons is that, as offensive weapons, the sale, importation, supply and possession of these knives is now prohibited.

Kirpans

Some kirpans fall under the definition of an offensive weapon to which section 141 of the Criminal Justice Act 1988 applies^{[footnote 19]} (although a kirpan which is less than 50cm is not captured by the legislation). It is already a defence under section 139 of the Criminal Justice Act 1988 to possess such a sword in public for religious reasons to ensure that a person of Sikh faith can possess a kirpan. It was similarly a defence to the offence under section 141 of the 1988 Act where such conduct was for the purposes of use in religious ceremonies. This defence applies to possession in private, and this section modifies the defence extending it from “religious ceremonies” to “religious reasons”^{[footnote 20]}.

Section 47 of the Offensive Weapons Act 2019 now provides a new defence to the offence of possession in private for Sikhs possessing such swords for the purposes of presenting them to others at a religious ceremony or other ceremonial event and for the recipients, whether they are a Sikh or not, to possess swords that they have been presented with. It also provides a defence for the ancillary acts where they are for that end purpose e.g. the manufacture and sale, act of giving etc. This ensures the act of ceremonial gifting of the Sikh kirpan can occur lawfully.

Surrender of prohibited offensive weapons and payments in respect of them

Section 48 of the Act makes provision for those who legally hold offensive weapons, the possession of which has become prohibited by the Offensive Weapons Act 2019, to be able to surrender those weapons at designated police stations. The Surrender of Offensive Weapons (Compensation) Regulations 2020 provided for a three month period during which the legal owners of these weapons were able to surrender them to the police and claim compensation. The surrender period commenced on 10 December 2020 and closed on 9 March 2021. While it remains possible to surrender such weapons to the police, it is no longer possible to claim compensation.

4. Threatening with offensive weapons - Offensive Weapons Act 2019, Part 5

Part 5 of the Offensive Weapons Act 2019 strengthens the law in relation to threatening with offensive weapons. The Act amends the existing offences of threatening with an offensive weapon in a public place by changing the test to one where an offence has been committed if the threat is such that a reasonable person who was exposed to this threat would think they were at a risk of immediate physical harm. The Act extends the offence of threatening with an offensive weapon from schools to further education premises. It also creates a new offence of threatening with an offensive weapon in a private place. There are existing offences covering threatening behaviour in private, but the Act provides for a specific offence to enable the penalties open to the courts to be in line with the penalties available if such threatening behaviour was committed in public. Part 5 of the Act also provides the police with the power to search for corrosive substances if they suspect that someone is being threatened with a corrosive substance in a school or further education premises.

Offence of threatening with offensive weapon in a public place

Section 50 amends the legal test for threatening with an offensive weapon in a public place. It replaces the requirement of the threat causing immediate risk of serious physical harm to the victim, with a new test that the threat is such that a reasonable person who was exposed to this threat would think that they were at a risk of immediate physical harm. Section 50 amends the offences provided for by section 1A of the Prevention of Crime Act 1953 and section 139AA of the Criminal Justice Act 1988.

The previous legal test was based on the objective assessment of the immediate risk of serious physical harm to the victim rather than being based on how a reasonable person would perceive the threat. The new test considers how a reasonable person, in the victim’s place, would interpret such a threat, and not whether the victim was objectively at risk of immediate physical harm. This test is not based on the victim’s fear of suffering harm, as the reasonable person test removes the element of subjectivity on the part of the person that is threatened. In addition, changing the test from ‘serious physical harm’ to ‘risk of immediate physical harm’ removes the need to prove the physical harm threatened was serious. The Act does not provide a statutory definition of “physical harm”. These words therefore carry their normal meaning.

Threatening with an offensive weapon on further education premises or in a private place

Section 51 of the Act amends section 139AA of the Criminal Justice Act 1988 to extend the offence of threatening with a bladed or pointed article or an offensive weapon on school premises to further education premises.

Section 52 creates a new specific offence of threatening with a corrosive substance, bladed or pointed article or an offensive weapon in private. Whilst there are already offences covering the act of threatening someone with an offensive weapon in private, the offences that were most likely to be used in such circumstances, namely common assault, did not attract the same penalties as for an offence of threatening in public.

It is now an offence for a person to unlawfully and intentionally threaten another person with a corrosive substance, a bladed or pointed article or an offensive weapon in a way that there is an immediate risk of serious physical harm to that person.

Serious physical harm is defined as amounting to grievous bodily harm for the purposes of the Offences against the Person Act 1861. Grievous bodily harm is defined in case law^{[footnote 21]} as really serious harm as assessed by a jury, and a wound defined as a break in the continuity of the skin falls within the parameters of grievous bodily harm.

The offence of threatening in a private place adopts a higher test in respect of serious physical harm than the offence of threatening in a public place, school, or further education premises, as now amended under sections 50 and 51 of the Act respectively. This is because the offence in section 52 covers threats in the private sphere, such as in a person’s home, and so other criminal charges may be more appropriate for less serious threats. For example, the conduct in question in private may amount to common assault under the Criminal Justice Act 1988. The offences of using threatening, abusive or insulting words or behaviour intending to cause a person to believe that immediate unlawful violence will be used against him or another, or with intent to cause a person harassment, alarm or distress, under section 4 and 4A of the Public Order Act 1986, are also available. These offences apply both to acts in private and public, except that no offence is committed where both the person who threatens and the person being threatened are in the same or another dwelling.

Depending on the conduct, it may also be possible to bring a charge of attempted wounding or attempted grievous bodily harm contrary to section 18 of the Offences Against the Person Act 1861. In some circumstances, it might also be possible to bring a charge of threat to kill under section 16 of the 1861 Act which carries a maximum sentence of 10 years if tried on indictment.

The offence in section 52 applies in any private place. For bladed and pointed articles and offensive weapons this means anywhere other than a public place or school or further education premises, where it is already an offence. For corrosive substances, a private place means anywhere other than a public place, so it would be an offence under section 52 to threaten someone with a corrosive substance in a school or further educational premises for example.

Search for corrosive substance on school or further education premises

Section 53 provides powers for the police to enter and search for a corrosive substance on school and further education premises in support of the new offence provided by section 52. These powers will enable the police to enter and search a school or further education premises, and any person in them, to prevent an offence of threatening with a corrosive substance. The reason for extending police powers in this way is that they already have the power in relation to other offensive weapons. This power would only be used when a police officer has reasonable grounds to suspect that such an offence will be committed or has been committed. A report from a teacher, a parent or student may constitute reasonable grounds for the police to exercise this power.

5. Enforcement - Offensive Weapons Act 2019, Part 7

This Part does not form part of the statutory guidance but is included for background information.

Part 7 of the Act confers powers on Trading Standards to enforce relevant legislation on sales of knives, offensive weapons and corrosive products. It also includes provision to extend the Primary Authority scheme for Trading Standards Authorities to include the sale of knives (bladed articles etc), corrosive products and other offensive weapons.

Enforcement of offences relating to sale of offensive weapons

Section 64 of the Act confers a power on local Trading Standards to enforce within their area the new offences under the Offensive Weapons Act 2019 and existing offences relating to the sale, delivery etc of knives, corrosives products and other offensive weapons. The relevant provisions are:

• Section 1(1) of the Restriction of Offensive Weapons Act 1959 (penalties for offences in connection with dangerous weapons)
• Section 1 of the Crossbows Act 1987 (sale etc of crossbows to persons under 18)
• Section 141(1) of the Criminal Justice Act 1988 (offensive weapons)
• Section 141A of that Act (sale etc of bladed articles to persons under 18)
• Section 1 of the Knives Act 1997 (unlawful marketing of knives)
• Section 2 of that Act (publication of unlawful marketing material relating to knives)
• Section 1 of the Offensive Weapons Act 2019 (sale of corrosive products to persons under 18)
• Section 3 of that Act (delivery of corrosive products to residential premises etc)
• Section 4 of that Act (delivery of corrosive products to persons under 18)
• Section 38 of that Act (delivery of bladed products to residential premises etc)
• Section 39 of that Act (delivery of bladed products to persons under 18)
• Section 42 of that Act (delivery of bladed articles to persons under 18)

The investigatory powers available to Trading Standards for the purposes of enforcing a provision are listed in Schedule 5 to the Consumer Rights Act 2015^{[footnote 22]}.

Application of Regulatory Enforcement and Sanctions Act 2008

Section 65 applies Parts 1 and 2 of the Regulatory Enforcement and Sanctions Act 2008 to the enforcement of provisions relating to the age restricted sale and delivery of knives, corrosive products and offensive weapons, which includes extending the Primary Authority scheme to these provisions.

The Primary Authority scheme was created in response to recommendations in the Hampton Report (2005) which noted widespread inconsistencies of regulatory interpretation between different local authorities. The statutory basis for the scheme is provided by the Regulatory Enforcement and Sanctions Act 2008 (as amended) and associated secondary legislation. The Primary Authority scheme was introduced in April 2009. The Enterprise Act 2016 included measures to amend the 2008 Act to enable many more small businesses and pre-start-up enterprises to participate in Primary Authority.

The scheme is based on the creation of a statutory partnership between a business and its ‘Primary Authority’ (PA). The scheme has been received positively and it has had widespread uptake and support from businesses, trade associations and local authorities.

The key elements are:

• there are two types of PA partnership. A business can form its own direct partnership with a chosen local authority. It then receives PA advice tailored to its specific needs. Alternatively, a business that belongs to a trade association that has a PA (or another type of ‘regulated group’) can benefit from a co-ordinated partnership. In this case, the PA advice is still provided by the PA but it is shared via the trade association (the ‘co-ordinator’) and tailored to the general needs of its members. In the case of age restricted sales of knives enforcement responsibilities are split between local authorities and police forces. Police forces operate outside the scope of PA and there is no plan to change this

• the PA has a role to play leading regulation of the business on behalf of local authority regulators, including through the co-ordination of intelligence and of responses to specific issues that arise

• the PA is able to share compliance information with enforcing authorities and may, with consent from the Secretary of State, publish an inspection plan where this will be of benefit in guiding and co-ordinating the activities of enforcing authorities. As a result, protections are enhanced, although enforcing authorities are not constrained from responding to and investigating complaints

• the PA is able to provide advice and guidance on compliance to the business (known as PA Advice) in areas of regulation covered by the partnership, on which the business can rely

• where the business faces potential enforcement action by an enforcing authority, the PA will assess whether the proposed action is inconsistent with any PA Advice given. If the action is inconsistent, the PA is able to direct the enforcing authority not to take action

• The Secretary of State is empowered to make a determination in the case of a disagreement as to whether proposed enforcement action is inconsistent with PA Advice given by the PA, and whether that advice was correct and properly given

• PA Advice does not affect the responsibility that a business has to comply with legal requirements, but supports it in meeting its obligations by:

  • helping it to understand what needs to be done to achieve or maintain compliance
  • setting out a way of achieving and maintaining compliance
  • providing assurance that the method of compliance chosen by the business is acceptable

The Primary Authority Statutory Guidance and Guide for Local Authorities may provide useful further reading.

Annex A – list of offensive weapons

Specified Weapons

Section 141 of the Criminal Justice Act 1988 provides that it is an offence for any person to manufacture, sell or hire, offer for sale or hire, expose or have in his possession for the purpose of sale or hire of or lending or giving to any other person certain specified weapons.

The Criminal Justice Act (Offensive Weapons) Order 1988 (S.I 1988/2019) (as amended) provides that the following are specified weapons for the purpose of section 141:

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’

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

t) the weapon sometimes known as a “cyclone knife” or “spiral knife”, being a weapon with — (i) a handle; (ii) a blade with two or more cutting edges, each of which forms a helix; and (iii) a sharp point at the end of the blade.

1. The Surrender of Offensive Weapons (Compensation) Regulations 2020 ↩

2. REGULATION (EC) No 1907/2006 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (Text with EEA relevance) (2006 Retained EU Regulation 2006/1907) ↩

3. The Criminal Justice Act 1988 Offensive Weapons (Exemption) Order 1996 excludes folding knives with a folding blade of 3 inches (7.62 cm) or less. ↩

4. The Criminal Justice Act 1988 Offensive Weapons (Exemption) Order 1996 excludes razor blades permanently enclosed in a cartridge or housing where less than 2 millimetres of any blade is exposed beyond the plane which intersects the highest point of the surfaces preceding and following such blades. ↩

5. Knives and Offensive weapons information, Gov.uk, 11/12/2012 p3-4 (25/06/2019) ↩

6. See the Criminal Justice Act 1988 (Offensive Weapons) Order 1988, SI 1988/2019 (as amended), which specifies offensive weapons for the purposes of section 141 of the Criminal Justice Act 1988. ↩

7. The supply is prohibited by section 141 of the Criminal Justice Act 1988 and the Criminal Justice Act 1988 (Offensive Weapons) Order 1988 (as amended). ↩

8. The Criminal Justice Act 1988 Offensive Weapons (Exemption) Order 1996 excludes folding knives with a folding blade of 3 inches (7.62 cm) or less. ↩

9. See section 1 of the Restriction of Offensive Weapons Act 1959 (as amended). ↩

10. See section 141A(4), and new section 141B, of the Criminal Justice Act 1988 (as amended). ↩

11. See section 141B(4) of the Criminal Justice Act 1988 (as amended). ↩

12. A bladed article is an article to which section 141A of the Criminal Justice Act 1988 applies. ↩

13. See section 1 of the Restriction of Offensive Weapons Act 1959. ↩

14. See section 1(a) of the Restriction of Offensive Weapons Act 1959. ↩

15. Importation of flick or gravity knives is prohibited under section 1(2) of the Restriction of Offensive Weapons Act 1959, and an offence under section 50(2) and (3) of the Customs and Excise Management Act 1979. ↩

16. See section 1 of the Prevention of Crime Act 1953 ↩

17. Knives and Offensive weapons information, Gov.uk, 11/12/2012 p3-4. ↩

18. See paragraphs 1 and 2 of the Criminal Justice Act 1988 (Offensive Weapons) Order 1988. ↩

19. See paragraph 1(r) of the Schedule to the Criminal Justice Act 1988 (Offensive Weapons ) Order 1988. ↩

20. See paragraph 5A of the Schedule to the Criminal Justice Act 1988 (Offensive Weapons ) Order 1988. ↩

21. DPP v Smith 1961 ↩

22. http://www.legislation.gov.uk/ukpga/2015/15/schedule/5/enacted ↩