I was recently asked on Twitter about the law around people possessing items like blades or scissors, purely for use in self-harm and whether or not they can be arrested / prosecuted? It was quite hard to explain in 140 characters so to avoid creating confusion or the wrong impression, I offerred to do this blog.
Firstly, a disclaimer! – nothing that appears in the following explanation means that a person MUST be prosecuted for offences where they are being committed or that I think they should be arrested and prosecuted. All situations will turn on their particular circumstances. As I’ve explained elsewhere, it may not necessarily be in the public interest to prosecute someone for the commission of an offence – officers may decide to approach the situation using the Mental Health Act or by not detaining at all. This post merely seeks to explain the offences that may have been committed, rather than the complex decision about whether that offence should be prosecuted.
The examples given to me in the questions on Twitter have included someone possessing either a pair of scissors or a razor blade for use in self-harm only – is the act of possessing these items an offence? Well, there are two offences to think about and neither of them can be committed in a private place – most people have all manner of knives, scissors, screwdrivers and razor blades in their house, and obviously the law frames simple possession of these things as an offence only in a public place:
- Possession of an “offensive weapon” – contrary to s1 of the Prevention of Crime Act 1953.
- These include items which are “made, intended or adapted for causing harm to the person.” So for example, a “knuckle-duster” is made purely for the purpose of causing harm – it is an offensive weapon per se. A baseball bat is not an offensive weapon per se and if taken from your house to the park to play baseball you would not be committing an offence. If having played your game and you were walking home, you decided to use the baseball bat to rob the newsagents, it would “become” an offensive weapon by virtue of your changing the use to which you are putting it – in legal words it would have become “intended” for use as an offensive weapon.
- Knives, razor blades and scissors are not offensive weapons per se, either –
- They obviously have a function, primarily around cutting vegetables, shaving faces and cutting paper, etc.. It became clear that it was becoming too difficult to prosecute people found in possession of knives because you had to prove that additional element that the article was “intended” for use in causing harm. The Government of the day decided to update the legislation to make it harder to legally possess a knife, a blade or a “sharply pointed article” like a screwdriver.
- Possession of a “bladed or sharply pointed article” – contrary to s139 of the Criminal Justice Act 1988.
- Very similar offences, but modernising and extending the offensive weapons legislation. It is an offence to possess “any article which has a blade or is sharply pointed except a folding pocketknife.” The folding pocket knife is only permitted to have a blade up to 3 inches long.
- You have a legal defence if you can show that you had “good reason or lawful authority for having the article” or that you had it “for use at work; for religious reasons; or as part of any national costume.”
Investigations into these offences often include some general or specific sense that people have possessed them for “self-defence”. This is not an arguable defence for either of the above – even where it can be shown that there was indeed a threat to be feared or faced.
The defences for example cover people who have bought these items and are taking them home; people who used tools as part of their job like builders; or parents who have confiscated them from a child. A member of the public who had picked up a knife at an incident, to keep it safe and from being used or reused until the police get there would not be guilty of possessing a bladed article even though they clearly were possessing it! They would have a “good reason” for doing so.
Possession of items in a public place intended for use purely in self-harm situations would also not be a defence. You’ll notice if you read this, however, that there is not a total ban upon possessing things to self-harm – it is a partial ban, not to possess offensive weapons or bladed / pointed articles except for folding pocket knives. Also, I remind you that these offences are committed only in a public place.
So if you are caught with a pair of scissors in a public place whilst attempting to self-harm with them, the officers could either respond to the offence or, if they thought it appropriate, detain under the Mental Health Act. If you were caught with scissors having just bought them at the shop and you were taking them home, officers would look upon that you having “a good reason”. Of course, usually, people with freshly purchased sharply-pointed or bladed articles will have them in a bag, possibly with a receipt and will know where they bought them, etc.. All questions that officers may ask if there is doubt as to whether the items were possessed “for good reason”.
Obviously I want to suggest, that if you are feeling the need to self-harm and you feel you may put yourself at risk, you should seek urgent help:
999 is always available to access the police or ambulance services in addition to your normal NHS resources like your GP, NHS Direct or Accident & Emergency.
Also bear in mind the Samaritans 24hr phone line:
08457 909090 – talk to someone if you need help.
I want to repeat my point: none of the above means officers can’t assess the full circumstances and act with discretion. They could confiscate an item and detain under the Mental Health Act, for example. (It would be lawful to seize something in circumstances where it were an offence, even if the criminal invesgation route were not being taken and discretion were being exercised to seek alternative approaches.)
I hope you can tolerate a little true story which, although not connected to mental health or self-harm issues, shows the extent to which these laws are misunderstood. It occurred when I was a PC after we arrested a man from the A&E department who had been very threatening towards staff and when we searched him after arrest, we found a VERY sharp craft knife blade in the lining of his jacket. He was further arrested for possessing a bladed article. When we checked out his background, we discovered he was “wanted” for a serious robbery where a samurai sword had been used to threaten to execute a man’s wife unless he opened a safe in his house and thousand of pounds worth of cash and jewellery had been stolen. His previous convictions suggested that the threat would not have been idle: he subsequently received ten years in custody for this offence.
They decided to run a trial in the Magistrates Court for the craft blade and I turned up to give my evidence. Upon arrival, both prosecution and defence solicitors were arguing about it all and when I went into the court room before the Magistrates entered to tell the usher I had arrived, the defence very arrogantly shouted across to me, “I don’t know why you people don’t measure the size of these things – it’s not even three inches.” I immediately said, “It’s also not a folding pocket knife so I’m not really concerned how large it is – it’s bloody dangerous in the hands of man like that.”
Out came the law books and I was sent out of court only to be beckoned in again and told the case was being dropped because “it’s not an offensive weapon per se.” I protested that I knew this which is precisely why we hadn’t charged him with possessing an offensive weapon. All too late … the case had been dropped.
When the formal aspects had been finished, the stipendiary Magistrate came back into court to chat with the defence solicitor – I think they knew each other. He overheard me and the CPS falling out over the whole affair and unhelpfully added, “If he’d been waving it about, intending to use it, it would have been different.”
I just looked at him and asked, “Sir, can I have your permission to return this item to the man in the cells below, bearing in mind he’s on remand for armed robbery having threatened to decapitate someone with a samurai sword. He’s a very violent criminal but this is his craft blade and the view has been taken that possession of it is not an offence.”
He said, “No! – of course you can’t. That would be incredibly dangerous!!” Exactly ………
Update on 01st April 2015 – since writing this article, a new Code of Practice has come into effect in England. It doesn’t substantially alter the post but certain reference numbers have changed. My summary post about the new Code of Practice (2015) is here, the new Reference Guide is here and the full document is here. The Code of Practice (Wales) remains unchanged.
The Mental Health Cop blog
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– won a World of Mentalists #TWIMAward for the best in mental health blogs
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– was referenced in the UK Parliamentary debate on Policing & Mental Health
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