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CIRC 063: POSSESSION OF BATONS IN A PRIVATE PLACE
As a consequence of Section 46 of the Offensive Weapons Act 2019 coming into force, there have been significant changes to the law as it relates to the possession of offensive weapons. It is particularly important for members to be aware that with some notable exceptions, this development criminalises the possession of offensive weapons in private places such as domestic dwellings. This may well affect members who, from time to time have cause to possess batons in such circumstances. The purpose of the circular is threefold as it aims to: -
- Set out the current legal position
- Provide advice to members about how to best protect themselves in circumstances where they have to possession a baton in private
- Update the membership in respect of steps the POA are taking to guard against the prosecution of members under the new provisions.
The Law
Offensive Weapons Act 2019
Section 141 of the Criminal Justice Act 1988 is the principal piece of legislation governing the law on the possession of offensive weapons in a private place. This has been substantially amended by Section 46 of the Offensive Weapons Act 2019, the effect being that it is now a criminal offence (subject to a number of specific defences) to possess certain offensive weapons in a private place.
Section 141 - Criminal Justice Act 198
Any person who possesses an offensive weapon in a private place will be liable on conviction in the Magistrates Court to imprisonment for a term not exceeding 51 weeks, and/or an unlimited fine
What Amounts to an Offensive Weapon?
The Criminal Justice Act 1988 (Offensive Weapons) Order 1988 establishes that 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; and a straight, side-handled or friction-lock truncheon qualify as an offensive weapons.
As such, it is beyond any sensible debate that the kind of rigid and expandable batons of all makes and models which are routinely issued to members of the Prison Officers Association as part of the duties they discharge on behalf of both Her Majesty’s Prison and Probation Service and privately run establishments will be classified as offensive weapons.
What Amounts to the Possession of an Offensive Weapon ‘In Private’?
Section 141 (1C) of the Criminal Justice Act 1988 states that possession of a weapon in private applies if the person possesses the weapon in a place other than—
(a) a public place,
(b) school premises,
(c) further education premises, or
(d) a prison.
As such, this law has no application at all to circumstances in which a member possesses a baton at the establishment where they are principally employed, whilst involved in a prisoner escort to a public place, on a ‘bed watch’ at a hospital or whilst travelling to or from an establishment which is not their ‘home’ establishment as part of a detached duty. Such scenarios will continue to be governed by Section 1 of the Prevention of Crime Act 1953 which deals with possession of offensive weapons in a public place. In those scenarios, a member would continue to be able to rely upon the defence provided within section 1(I) that is to say they had ‘lawful authority’ to carry a baton in those circumstances. Guidance published by the Crown Prosecution Service at https://www.cps.gov.uk/legal-guidance/offensive-weapons-knives-bladed-and-pointed-articles recognises specifically the existence of a lawful authority to possess a baton in a public place where it is carried as a matter of duty.
Possession of a Baton at Home & Relevant Defences
That starting position is that possession of an offensive weapon at home would be a criminal offence. However, section 141(5) of the Criminal Justice Act 1988 now provides that it shall be a defence to such a charge if a person charged with possessing a weapon in these circumstances can show that their conduct was
“…only for the purposes of functions carried out on behalf of the Crown or of a visiting force.”
Section 141 (11F) of the Act goes on to state that if a person raises this defence, it will be established unless the Crown Prosecution Service can prove, beyond a reasonable doubt, that the weapon was not possessed for that purpose.
Taking those matters in turn, it seems to be clear that provided a member can establish that they had a baton at their home address unavoidably, entirely and only as a consequence of discharging their duty as a Prison Officer, they would be entitled to rely upon the defence set out above on the basis that their conduct in relation to the baton was only for the purpose of functions carried out “on behalf of the Crown.” Provided the member was able to provide sufficient evidence of such matters, they would not be guilty of this offence unless the Crown Prosecution Service were able to prove, beyond a reasonable doubt, that the weapon was not possessed for that purpose.
Advice to Members about How to Conduct Themselves in Relation to the Possession of Batons
Whilst it appears to have expired in November 2019, PSI 30/2015 and in particular paragraphs 2.32 - 2.33 provide very useful guidance as to the kind of steps a member should take to demonstrate that a baton was at their home address only for the purpose of functions carried out by the Crown.
In summary, members should ensure that:
- As far as possible they avoid taking a baton home
- The only circumstances in which a baton is taken home is where they are on duty at a location that is not their ‘home establishment’ and they must travel directly from home to that location.
- Examples of the above might include:
when attending work at another establishment on detached duty where the receiving establishment is unable to provide a baton,
when covering a bed watch for another establishment who is unable to provide a baton - In these circumstances all reasonable efforts should be taken by the receiving establishment to provide a baton, or for the member of staff to travel direct between establishments.
- Where this is not possible, and the only option is for the member of staff to take the baton home, it must be kept as securely as possible and must not be left in a vehicle overnight. The time that the baton is outside of the establishment must be minimised.
- In these exceptional circumstances and where all reasonable efforts have been taken to avoid the need to take the baton outside the establishment a member should obtain a letter from an operational manager providing a justification for possession of the baton at home. This letter must be carried with the baton whilst out of the establishment
It would become increasingly more difficult to rely upon the defences above if for any reason the member has been in possession of a baton at their home address for an extended period of time in circumstances where they were not routinely taking it into an establishment to use in the execution of their duty. Such cases would inevitably be fact specific.
Update to Membership in Respect of Steps the POA are Taking to Guard against the Prosecution of Members under the New Provisions
In an effort to protect members, the POA are seeking to establish an amnesty for those members who currently possess a baton at home. In addition, we are seeking a written assurance from Her Majesty’s Prison and Probation Service that they interpret the defence of possessing a baton in private “…only for the purposes of functions carried out on behalf of the Crown or of a visiting force” as one that will apply to Prison Officers. Further, we have asked Her Majesty’s Prison and Probation Service to confirm that they themselves, have sought assurance from the National Police Chief’s Council and the Crown Prosecution Service that the relevant defence will be interpreted in the way described above.
Please bring this Circular to the attention of all members.
Yours sincerely
STEVE GILLAN
General Secretary
MARK FAIRHURST
National Chair