Knife Crime Prevention Orders: Blunt Tools against Knife Blades?.

The Metropolitan Police commenced a pilot scheme on 5 July 2021 for the use of Knife Crime Prevention Orders ("KCPO"). A decision whether to roll out the orders to all Police forces will be made at the review stage, which is expected to take place after 14 months.

The Offensive Weapons Act 2019 (‘the Act’) creates two instances in which a KCPO can be made: on conviction and otherwise than on conviction. KCPOs can be made for defendants aged 12 and over.

On conviction

Under section 19 (not yet in force), the court must be satisfied, on the balance of probabilities, that the offence with which it is dealing is a ‘relevant offence’. A ‘relevant offence’ is defined as:

• an offence involving violence (or the threat of violence);
• an offence where a bladed article was used, either by the defendant or any other person;
• or the offence was committed at a time when the defendant or another person who committed the offence had with them a bladed article.

Section 19 allows a court to make a KCPO if the following conditions are met:

Section 19(3) The first condition is that the prosecution applies for a knife crime prevention order to be made under this section.

Section 19(4) The second condition is that the court thinks that it is necessary to make the order –

1. To protect the public in England and Wales from the risk of harm involving a bladed article,
2. To protect any particular members of the public in England and Wales (including the defendant) from such risk, or
3. To prevent the defendant from committing an offence involving a bladed article.

A KCPO under section 19 can require a defendant to do, or prohibit a defendant from doing, anything described in the order. An order under this section can only be made in addition to either a sentence imposed or a conditional discharge for the offence.

Otherwise than on conviction

Section 14 of the Act (also not yet in force) does not require the defendant to have been convicted of the offence in order for the court to make a KCPO. Upon application by a relevant chief officer of police, a chief constable of the British Transport Police, or the chief constable of the Ministry of Defence Police, the court may consider making a KCPO. This is the first condition for an order under this section.

The second condition is that the court must be satisfied on the balance of probabilities that, on at least two occasions in the relevant period, the defendant had a bladed article with him without good reason or lawful authority. The ‘relevant period’ is two years ending with the day on which the order is made, provided that the event occurred after the coming into force of section 14. The defendant must have had the bladed article with him either in a public place, on school premises or on further education premises.

If the court are satisfied of the first two conditions, it must go on to consider the third condition. This mirrors the condition set out in section 19(4), that is, necessity.

Requirements

A KCPO may require a defendant to:

• be at a particular place between particular times on particular days (s21(2)(a));
• be at a particular place between particular times on any day (s21(2)(b));
• present themselves to a particular person at a place where they are required to be between particular times on particular days (s21(2)(c));
• participate in particular activities between particular times on particular days (s21(2)(d)).

The effect of the requirements are noted in section 21(4) as prohibiting the defendant from being in a particular place, being with a particular person, participating in particular activities, using or having with them particular articles and using the internet to facilitate or encourage crime involving bladed articles.

Duration

A KCPO must be for a fixed period of at least 6 months and cannot last more than 2 years. If held in custody, a defendant’s KCPO will not take effect until the defendant is no longer in custody.

A review of the KCPO must take place within the last 4 weeks of the first year if the order is to last longer than a year.

Breach

A breach of a KCPO, without reasonable excuse, can render a defendant liable on summary conviction to a term of imprisonment not exceeding 12 months, a fine or both and on conviction on indictment to a term of imprisonment not exceeding 2 years, a fine or both.

A blunt tool?

Knife crime is, without a doubt, a huge problem in the UK, with 10,150 knife crime offences recorded in London alone in the 12 months to March 2021. 23 children aged 17 or under were murdered with a knife or a sharp object in the UK in the 12 months to March 2020.

In announcing the pilot scheme for KCPOs, Home Secretary Priti Patel announced that ‘Knife Crime Prevention Orders will crack down on those carrying weapons while at the same time intervening to steer them away from a life of violence.’ The Home Secretary notes that Police ‘asked for these orders to help them keep our streets and young people safe…’.

One could query the impact of a KCPO for those that have already had a brush with the law and received convictions and subsequent sentences. The Home Office KCPO guidance published in July 2021 suggests the following could be added as positive requirements to a KCPO:

• Education courses;
• Life skills programmes;
• Awareness raising courses;
• Targeted intervention programmes;
• Drug rehabilitation programmes; and
• Mentoring.

Focusing on young people, as it is clear from the inclusion of ‘school premises’ and ‘further education premises’ that this legislation is aimed at young people, what might a KCPO add to any sentence that the court can impose? The Ministry of Justice guidance on available requirements for a Youth Rehabilitation Order include:

• Activity requirements;
• Supervision requirements;
• Programme requirements;
• Attendance centre requirements;
• Prohibited activity requirements;
• Mental health requirements;
• Drug treatment requirements; and
• Education requirements.

Arguably, the KCPO adds nothing to the existing opportunities that the court, in particular the youth court, has in attempting to divert young people away from knife crime and serious criminality.

KCPOs made otherwise than on conviction are particularly troubling. The making of an order, the breaching of which is a criminal offence carrying significant penalty, does the opposite of the stated aim of the legislation, which is to ‘divert vulnerable people at risk of becoming serious criminals’ and instead, brings individuals, unfortunately likely to be young people, into the criminal justice sphere.

Further, the standard of proof when considering whether a defendant has carried a bladed article in the last two years is extremely low and could lead to the making of orders which would not meet the criminal standard for a conviction for the relevant offence.

In addition to the risk of widening the pool of those coming into contact with the criminal justice system, KCPOs have the potential to criminalise acts which, are in and of themselves, a criminal act. A stated effect of the KCPO (s21(4)) is to prevent defendants having particular articles with them. Should a KCPO contain a prohibition on the carrying of an article which is covered by existing criminal law, such as a bladed article, this places a defendant at risk of being in breach of KCPO and receiving a further conviction for the carrying of the article. This is contrary to the established principle that orders of the court should not contain terms that would amount to criminal offences in and of themselves.

The human rights group Liberty have described KCPOs as a ‘blunt tool’, noting that instead of criminalising children as young as 12 and ‘funnelling more and more people into the criminal justice system with KCPOs, the government should be looking to invest in communities and tackle the root causes of serious violence’. Those working in the criminal justice system, and particularly the youth criminal justice system, are likely to agree with that sentiment.