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BLOG: Knife crime prevention orders – will they help police in the battle to keep the streets safe?

31/07/2019

Colin Aylott QC and Marie Spenwyn explore whether proposals to tackle knife crime will be effective.


Proposals for knife crime prevention orders were first announced in March 2019 by then Home Secretary Sajid Javid: “I have been clear that I will do everything in my power to tackle the senseless violence that is traumatising communities and claiming too many young lives.  The police already have a range of measures they are using to keep our streets safe, but there is more we can do to help them in this battle. I have listened to their calls and will be introducing these new orders to stop gang members carrying knives in the first place. It is vital we continue to focus on improving the law enforcement response while at the same time steering young people away from criminal activity in the first place.”

The Offensive Weapons Act 2019 received Royal Assent on the 16th May 2019.  An overview of the Bill indicated that the intention was to address various issues relating to offensive weapons to include strengthening the arrangements for online sale of bladed articles and other offensive weapons.  The Act also has a specific focus on the increase in offences committed utilising corrosive substances. The Government’s Explanatory notes to the Bill stated that “recent police recorded crime in England and Wales has shown an increase in the number of serious violent offences involving knives, corrosives and firearms. In the year ending June 2018, there was a 12 per cent increase in offences involving knives/sharp instruments…”. The Act sought to meet commitments within the Government’s Serious Violence Strategy (published on 9 April 2018) which aimed to take action to address serious violence and in particular the recent increases in knife crime, gun crime and homicide.

Part 2 of the Act, sections 14 to 33 deal with Knife Crime Prevention Orders (KCPO). The new order, when it is brought into force, can be issued to anyone aged 12 or over who the police believe is routinely carrying knives.  No conviction for carrying a knife is required for any of the forms of the KCPO that can be made.

Section 19 allows for a KCPO to be made on conviction for a “relevant offence” which is defined by section 19(10) as an offence of violence (including threats of violence) where a knife was either used or carried. The court must also be satisfied on the balance of probabilities that the order is necessary to protect the public or any particular member of the public (including the defendant) from risk of harm from bladed articles or to prevent the defendant committing an offence involving a bladed article.  

Significantly, the orders can also be imposed on those with no convictions whatsoever – section 14 relates to ‘knife crime prevention orders made otherwise than on conviction’. Under section 14(1) on application to a magistrates or a youth court the court can make the order otherwise than on conviction if satisfied that on at least two occasions in the two years preceding the date of the order “the defendant” (so named in section 14 even if the application is made for those with no prior convictions) had with them in a public place or a school or on ‘further education premises’ a bladed article provided the court thinks that it is necessary to make the order –

(a) to protect the public in England and Wales from the risk of harm involving a bladed article,

(b) to protect any particular members of the public in England and Wales (including the defendant) from such risk, or

(c) to prevent the defendant from committing an offence involving a bladed article.

The standard is the civil standard – at section 14(3) the court need only be satisfied on the balance of probabilities that the defendant had possession of a bladed article without good reason or lawful authority in the relevant locations on at least two occasions.

For a person under 18 the youth offending team must be consulted (section 15(5)) prior to the making of an order under either s14 (otherwise than on conviction) or s19 (on conviction).

However, a court can make an interim order without notice (s16 and s17) if it feels the order is necessary and in those circumstances the consultation requirements in s15 do not apply.  Before a full hearing imposing a final order the consultation with the youth offending team must then take place.  There is no limitation on the duration of an interim order (section 23).  There are notification requirements within 3 days as to names used and addresses that apply to all knife crime prevention orders made (interim or full).

The requirements that can be imposed under the orders are set out at section 21.  At section 21(1) such requirements and prohibitions that may be imposed are those which the court thinks necessary to:

(a) to protect the public in England and Wales from the risk of harm involving a bladed article,

(b) to protect any particular members of the public in England and Wales (including the defendant) from such risk, or

(c) to prevent the defendant from committing an offence involving a bladed article.

At 21(2) it is specifically set out that the requirements may in particular have the effect of requiring the defendant to be at a particular place at on particular days at particular times (i.e. a curfew), present themselves to a particular person at particular times on particular days (i.e. reporting of some form) and participate in particular activities between particular times on particular days.  Further at 21(4) the prohibitions may in particular have the effect of prohibiting the defendant from doing a list of things which would amount to geographical restrictions, conditions of non-association, preventing participation in certain activities, prohibition on using or having particular articles and/or using the internet to facilitate or encourage crime using bladed articles. It is envisaged that the inclusion of restrictions on the internet is seeking to target social media use in order to prevent the rapid escalation of disputes amongst groups/rivals.

Under section 22(1) the orders are to be supervised by an individual or an organisation and the court must [s.22(3)] receive evidence about the sustainability, enforceability and compatibility of any requirement before it is included in an order. There is also an obligation [section 22(7)(a)] imposed on a defendant to ‘keep in touch’ and to notify any change of their home address.

Orders are for a minimum of six months and a maximum of two years (section 23 (3)).  Breach of the order either by commission of an offence of carrying a bladed article or breach of the requirements (including the initial notification requirements) without reasonable excuse could result in imprisonment for up to two years.  

Under section 26 orders are be reviewed every 12 months in the case of an adult at which point the court should consider whether the order should be varied or discharged.   More frequent reviews were envisaged during the discussion of the bill for young offenders but there are no different provisions laid down in the Act for those under 18.

There are procedures by which a defendant can apply for a review of an order (section 27) and powers of appeal for both the person applying for an order that was refused, and against an order made, to the Crown Court (section 28).

It should be noted that these provisions have not yet been brought into force; section 31 requires a pilot to be carried out first and a report laid out before Parliament as to the operation.  

It obviously remains to be seen how and where the pilot will operate but a review of the provisions raises some immediate concerns as to the apparent lack of limitation on use of interim orders, on the breadth of conditions that could be potentially imposed and on the use of language such as ‘the defendant’ in the case of applications for orders against a person who has never been convicted of any offence.  

“This Government are determined to do all they can to protect the public and keep people safe. We must seize every opportunity to end the senseless cycle of violent crime that is corroding our streets. Knife crime prevention orders are not the complete answer to violent crime, but they most certainly will help.” (Hansard, 26 February 2019.)

This may well be the stated aim but it is difficult to see at first blush how these orders will even begin to help address violent crime, specifically that involving the use of knives, and the root causes of that crime. The legislation bears all the hallmarks of the executive hastily reacting to media generated pressure to deal with the perceived “knife crime crisis”. There is no assistance that can be discerned for the individual who may feel they need to carry a bladed article for protection, no recognition of that being a very real predicament and no linked policy or funding to deal with the social problems experienced by young people living in deprived circumstances.  

We have real concerns about the risks that KCPOs will be used in an arbitrary and potentially discriminatory manner given the already fraught relationship between the police and those more likely to be subjected to stop and search, who are most likely to be targeted with these orders.

Until the underlying issues can be addressed and longer-term solutions found the use of these orders is unlikely to improve the position. It remains to be seen whether these provisions will have any impact but at this stage our feeling is that they are reactive rather than proactive.

Colin Aylott QC

Marie Spenwyn

31/07/2019

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