Offensive Weapons Act 2019: Scottish statutory guidance

3. Specific Guidance Relating to Certain Provisions that Extend to Scotland in Devolved Areas

3.1 Part 1 of the 2019 Act: Corrosive Products and Substances

Provisions in Part 1, sections 1 to 5 of the 2019 Act relate to restrictions concerning corrosive products. For guidance on these provisions, please refer to the UK Government's final draft statutory guidance on the 2019 Act which was published by the Home Office on 18 January 2022.

Possession of Corrosive Substances

3.1.1 Section 6 – Offence of having a corrosive substance in a public place

Section 6 of the 2019 Act makes it an offence in Scotland for a person to have a corrosive substance (i.e. a substance which is capable of burning human skin by corrosion) with them in a public place. It sets out a defence for the person charged with the offence to prove that they had a reasonable excuse or lawful authority for having the corrosive substance in a public place, including for use at work.

Section 6 addresses concerns about people carrying corrosive substances on their person for use in a violent attack or other criminal acts. In general terms, it can be thought of as placing the onus on the person in possession of the corrosive substance in a public place (rather than the police or prosecution) to show that they had a reasonable excuse or lawful authority for having the corrosive substance with them in a public place.

Definition

For the purposes of the possession offence in section 6, a "corrosive substance" is defined as a substance which is capable of burning human skin by corrosion. This definition is specific to the offence in section 6 and was developed based on advice from the Defence Science and Technology Laboratory. The definition is focused on the actual effects of the substance as it is known that corrosive substances are often decanted into other containers or bottles to make them easier to use as a weapon and to conceal from the police. As a result, police officers may not be dealing with situations where an individual is in possession of a corrosive substance in its original packaging.

The definition is intended so 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 might purchase. 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 definition of public place for the possession offence means any place other than premises occupied as a private dwelling (including any stair, passage, garden, yard, garage, outhouse or other appurtenance of such premises which is not used in common by the occupants of more than one such dwelling).

Defences

It is a general defence for a person charged with this offence in Scotland to show that they had a reasonable excuse or lawful authority for having the corrosive substance with them in a public place. While it will be for the court in any given case to assess the evidence, it is expected that a person who had bought a corrosive substance and was taking it home for the purpose for which the substance or product had been designed – for example, to unblock their drain or for decorating/DIY purposes – would likely amount to having a reasonable excuse.

It is also a specific defence for a person charged with this offence to show that they had the corrosive substance in their possession for use at work. While it will be for the court in any given case to assess the evidence, a person would have a reasonable excuse to have possession of a corrosive substance that they used in the course of their business or employment such as, 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.

In terms of lawful authority, under the Poisons Act 1972 ("the 1972 Act") 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 1972 Act include certain corrosive acids, for example nitric acid at above 3% concentration and sulphuric 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.

Penalties

The offence is triable either way. The maximum penalty on summary conviction would be imprisonment for a term not exceeding 12 months, to a fine not exceeding the statutory maximum or to both. The maximum penalty on conviction on indictment would be imprisonment for a term not exceeding 4 years, to an unlimited fine or both.

3.1.2 Section 7 - Presumptions in proceedings in Scotland for offence under section 6

Section 7 of the 2019 Act applies for the purposes of any trial in proceedings for an alleged offence of having a corrosive substance in a public place.

The presumptions are:

• Where a substance is found in a container (whether open or sealed), and there is on the container a description of the contents of the container, then the substance found is to be presumed to be a substance of that description.

• Where an open container is found and there is not enough of the substance to undertake an analysis because the substance has been poured out of or otherwise removed from it or it is empty, it is to be presumed to have contained the substance described on the content of the container, immediately before the substance has been poured out of, or otherwise removed from the container.

At the trial, any party to the proceedings may rebut the presumption that the substance was that described in the contents of the container, by proving that, at the time the offence is alleged to have been committed, the substance in the container was not of the description on the container.

A party may lead evidence for the purpose of rebutting the presumption that the substance was that described in the contents of the container only if the party has, not less than 7 days before the date of the trial, given notice of the intention to do so to the other parties.

3.1.3 Section 11 - Search for corrosive substances: Scotland

Section 11 of the 2019 Act provides a constable with the power to search a person without warrant and detain the person for such time as is reasonably required to permit the search to be carried out. If they do so, they must also inform the person of the reason for doing so. This can be undertaken if the constable has reasonable grounds for suspecting that a person is carrying a corrosive substance and has committed or is committing an offence of having a corrosive substance in a public place. If, in the course of the search, the constable finds a substance which they reasonably suspect to be a corrosive substance, the constable may seize and retain the substance and any article in which it is contained.

This section also makes it an offence if a person intentionally obstructs the constable in the exercise of their powers to search them or conceals a corrosive substance from a constable acting in the exercise of those powers. A person guilty of this offence will be liable on summary conviction only to a fine not exceeding level 4 on the standard scale.

3.2 Part 3 of the 2019 Act: Sale and Delivery of Knives etc.

Part 3 of the 2019 Act strengthens the law that prohibits the sale or the letting on hire of articles with a blade or sharp point to a person under the age of 18 years, and in relation to where the sale or letting on hire occurs between two parties who are not in each other's presence.

These are known as 'remote' sales or hires and can include online sales, mail order or over the telephone sales.

3.2.1 Section 34 - Sale etc of bladed articles to persons under 18

Under existing laws, it is an offence to sell or let on hire articles with a blade or sharp point to a person under the age of 18 years unless it is a knife with a folding blade of 3 inches (7.62 cm) or less. There is an exception to this in that it is not an offence under section 141A(1) of the 1988 Act to sell or let on hire a knife or knife blade to a person if they are aged 16 or over and the knife or blade is designed for domestic use.

Section 34 of the 2019 Act extends the range of bladed articles to which the existing offence in section 141A of the 1988 Act applies.

The law prior to implementation of relevant provisions in the 2019 Act

Subject to certain exclusions discussed below, section 141A of the 1988 Act prohibits the sale of the following bladed articles to under 18s:

• any knife, knife blade or razor blade,
• any axe,
• any sword, and
• 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, 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, it is expected retailers will consider carefully whether an item could commonly be considered as a knife when selling to under 18s.

Items which are described in section 1 of the Restriction of Offensive Weapons Act 1959 (for example flick knives), and items described in legislation made under section 141 of the 1988 Act (for example handclaws, push daggers and butterfly knives) are not covered by the prohibition on sales in section 141A of the 1988 Act.

Section 141A(3A) of the 1988 Act provides that knives and knife blades designed for domestic use can be sold or let on hire to 16 and 17 year olds.

What the 2019 Act will change

Section 34 of the 2019 Act extends the prohibition on sales to under 18s to include those offensive weapons that are prohibited by legislation made under section 141 of the 1988 Act, which includes handclaws, push daggers and butterfly knives^[1].

At the time the 1988 Act was passed, the sale and supply of these weapons was already prohibited and it was not considered necessary to specifically prohibit sale to under 18s as they were comprehensively covered by general prohibition.

However, over time the position has changed with legislative exclusions and defences relating to these weapons having been introduced since 1988 (including within the 2019 Act). This resulted in it being possible that offensive weapons covered by section 141 could be sold to a person under 18.

Section 34 of the 2019 Act 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 or new exemptions contained within the 2019 Act, which can include use for a sporting activity, historical re-enactment, or religious reasons, can ever apply in the case of under 18s.

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 Article 2 of the Criminal Justice Act 1988 (Offensive Weapons) (Scotland) Order 2005.

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^[2].

3.2.2 Section 36 - Defence to sale etc of bladed articles to persons under 18: Scotland

In section 141A of the 1988 Act as discussed above, there is an offence relating to the sale or letting on hire of bladed articles to under 18s. Section 36 of the 2019 Act provides new defences that can apply to the offence in section 141A when the nature of the sale or letting on hire is undertaken remotely.

As set out above, remote sales or remote letting on hire is when the transaction is not conducted by the purchaser and the seller being in the same place and can include online sales, online hire, mail-order or over the phone sales.

For sales or hires undertaken remotely, it becomes a defence to the offence in section 141A of the 1988 Act for the accused to show that the conditions in subsections 141C(5) to (8) of the 1988 Act are met. To rely on the defence all of the following conditions must be met:

• the accused has a system in place to verify the age of the recipient 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 accused 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 recipient or someone representing them);
• the accused 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 accused delivers the package themselves or through a third party (i.e. by staff at a collection point); and
• the accused does not deliver the package, or arrange for it to be delivered, to a locker.

Age verification, labelling and delivery – under 18s

Age verification

The new defence in the 2019 Act relating to age verification does not prescribe a specific age verification system that a remote seller^[3] must have in place. It is up to sellers to make a decision on whether the system meets the requirement that '[it] is likely to prevent persons under the age of 18 from buying such articles by that method'^[4]. Ultimately, it would be for a court to interpret what is required in a given case.

Systems for age verification for non-remote sales (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 these ages must provide acceptable identification in the form of a passport, driving licence or other valid form of identification before making the purchase. This approach will also mean that visual assessment is sufficient for anyone who is clearly over the ages of 21 or 25.

Systems for age verification for remote sales

As noted above, the legislation does not prescribe what system should be used in respect of remote verification. There are a range of age verification processes or systems available, and the UK 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 to meet the requirements of the law must be a matter for the seller.

Sellers will wish to decide which system or arrangement works best for them to 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 accused has put in place an adequate system, taking into account the particular facts in individual cases.

However, it is suggested the following examples used by remote sellers would not be sufficient to demonstrate that the accused had an adequate system and 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 recipient (other than a valid form of identification) that they are over 18 without conducting additional checks.
• using payment systems that may require the recipient 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.

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 2019 Act 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.

While it will be for the courts to ultimately determine what would be required in any given case, it is expected that 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 2019 Act. This is because the 2019 Act 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 2019 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 a lockable container to which the package was delivered with a view to its collection by the recipient, or a person acting on behalf of the recipient, in accordance with arrangements made between the accused and the recipient. These do not easily enable age verification to be carried out at the point of collection.

Bladed Products

Sections 38, 39, 40 and 41 relate to bladed products. It is helpful to explain the difference between a bladed article and a bladed product.

Bladed article

'Bladed article' includes 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. They must not be sold to under 18s (unless they are for domestic use whereby sale is permitted to 16 and 17 year olds).

Bladed products

The term 'bladed product' is a new term introduced by the 2019 Act and specifically means an item which is or has 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 and so, in addition to the general restrictions relating to bladed articles, bladed products must, in addition, not be delivered to residential premises unless certain conditions are met if sold remotely.

A bladed product, does not include an article described in:

a) section 1 of the Restriction of Offensive Weapons Act 1959,

b) an order made by the Secretary of State under section 141A(3)(c) of the 1988 Act which applies to Scotland, or

c) an order made by the Scottish Ministers under section 141A(3)(c) of that Act.

The objective of these provisions is to reduce access to dangerous knives and blades and their use in violent crime. While it will be for the court to ultimately interpret the legislation, bladed articles, such as those items mentioned as examples below, are unlikely to fall within the definition of bladed product and may therefore still be delivered to residential premises.

• cutlery knives (other than sharply pointed steak knives);
• utility knives with small cutting blades
• pizza cutters and
• small cheese knives.

In addition, a pocket knife with a folding blade of 3 inches (7.62 cm) long or less does not fall within the definition of bladed products and so can continue to be delivered to residential premises.

Residential premises

The 2019 Act defines "residential premises" as premises used solely for residential purposes. This means that if a premise is used for both business and residential premises (for instance if a person is running a business from their home such as a decorator, a joiner or a farmer) it is possible to deliver bladed products to the 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.

3.2.3 Section 38 - Delivery of bladed products to residential premises etc

Section 38 of the 2019 Act makes it an offence for a seller to deliver, or arrange the delivery of, "bladed products" to residential premises or to lockers. A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 6 months, to a fine not exceeding level 5 on the standard scale or to both.

There are defences available to the seller under section 40(1) to (6) of the 2019 Act (see below).

3.2.4 Section 39 - Delivery of bladed products to persons under 18

Section 39 makes it an offence for a delivery company to deliver bladed products, sold by UK based sellers, to an under 18 at residential premises. The delivery company will commit an offence if they do not deliver the bladed product into the hands of a person aged 18 or older. This offence applies to body corporates only. A person guilty of an offence is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

The liability only attaches to companies who enter into arrangements with a UK based remote seller for the delivery of bladed products. If the delivery company has not entered such arrangements with a remote seller, or they do not know when entering the arrangement that it covered the delivery of a bladed product, no offence is committed by the delivery company.

There are defences available to delivery companies undertaking deliveries under section 40(8) to (12) of the 2019 Act.

Important to note: This offence differs to the offence of delivering to residential premises for sellers based outside the UK, under section 42 of the 2019 Act. Where the item is sold by a UK seller, an offence is only committed if delivery is of a bladed product to residential premises. For non-UK sales, the legislation applies to all premises, not just residential premises and covers not just bladed products but to the wider set of bladed articles.

3.2.5 Section 40 - Defences to offences under section 38 or 39

Section 40 of the 2019 Act provides defences to the offences of delivering, or arranging delivery of, a bladed product to residential premises or to a locker (section 38) and the offence of delivering bladed products to an under 18 at residential premises (section 39).

Defences – section 38 offence (delivering, or arranging delivery of, a bladed product to residential premises or to a locker): the seller

There are defences available to the seller, under sections 40(1) to (6) of the 2019 Act, where they can show they took all reasonable precautions and exercised all due diligence to prevent the item being delivered to residential premises or to a locker.

The seller will need to satisfy the court that they took appropriate steps to check the address was a business address. This may, for example, be through checking Companies House, looking for details on the internet to confirm they are 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 show 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 that company 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 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 in any given case, 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 – section 39 offence (delivering bladed products to an under 18 at residential premises): the delivery company

There are defences available to delivery companies, under sections 40(8) to (12) of the 2019 Act, where the company took all reasonable steps to prevent the item being delivered to an under 18.

It is a defence for a person ("the accused") charged with an offence to show that they believed the person into whose hands the bladed product was delivered to be aged 18 or over and had either taken reasonable steps to establish the person's age or no reasonable person could have suspected from the person's appearance that the person was under the age of 18.

The accused is to be treated as having taken reasonable steps to establish the person's age if and only if they were shown a passport or a European Union photocard driving licence or any such other document of such other description, as the Scottish Ministers may prescribe by order and the document would have convinced a reasonable person.

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 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 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 reassure sellers, and the courts if needed.

3.2.6 Section 42 - Delivery of bladed articles to persons under 18

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. A person guilty of an offence on summary conviction to a fine not exceeding level 5 on the standard scale.

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 show that they believed the person into whose hands the bladed article was delivered to be aged 18 or over and had taken reasonable steps to establish the person's age or alternatively no reasonable person could have suspected from the person's appearance that the person was under the age of 18.

The accused is to be treated as having taken reasonable steps to establish the person's age if and only if they were shown a passport or a European Union photocard driving licence or any such other document of such other description, as the Scottish Ministers may prescribe by order and the document would have convinced a reasonable person.

Important to note: This offence largely mirrors the offence on delivery companies in section 39 of the 2019 Act, but in this case it applies to bladed articles (rather than merely bladed products) and to deliveries to all premises (both residential and non-residential 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. 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 non-residential 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 reassure courts if needed.

3.3 Part 4 of the 2019 Act - Possession etc of Certain Offensive Weapons

Part 4 of the Act strengthens legislation in relation to the possession of bladed articles and certain dangerous and offensive weapons. .

The 2019 Act amends the definition of a flick knife to update it to ensure that modern designs are also prohibited. It also prohibits the possession in private of dangerous and offensive weapons to which the Restriction of Offensive Weapons Act 1959 and the 1988 Act apply.

Prior to the changes made by the 2019 Act, where the police find 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 2019 Act will criminalise the possession of such items in any place and as such will allow the police to remove such weapons held in private.

Finally, Part 4 of the 2019 Act expands the list of prohibited offensive weapons to include cyclone knives.

3.3.1 Section 43 - Amendments to the definition of "flick knife"

The sale, importation and supply of flick knives and gravity knives have been banned since 1959^[5]. Section 43 of the 2019 Act amends the definition of a "flick knife" in the Restriction of Offensive Weapons Act 1959^[6]. 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 various 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.

However, knives that open manually, including those which can be opened with a thumb stud, do not fallunder 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.

3.3.2 Section 44 - Prohibition on the possession of certain dangerous knives

Section 44 of the 2019 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 2019 Act).

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)^[7].

Any person who possesses such a knife is liable on summary conviction to imprisonment for a term not exceeding 6 months, to a fine not exceeding level 4 on the standard scale or to both.

3.3.3 Section 46 - Prohibition on the possession of offensive weapons

Section 46 of the 2019 Act amends section 141 of the 1988 Act to make it a criminal offence to possess in private any weapon listed in Article 2 of the Criminal Justice Act 1988 (Offensive Weapons) (Scotland) Order 2005^[8].

The 1988 Act 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 that Act applies.

The effect of section 46 is, coupled with existing law, to make it an offence as to the possession in any place of these weapons.

Annex A to this guidance lists the weapons subject to this absolute prohibition on possessing. This list includes knuckledusters, handclaws, disguised and stealth knives, and cyclone knives.

The way the law operates is that a person possesses a weapon in private if the person possesses the weapon on domestic premises. Domestic premises means premises occupied as a private dwelling (including any stair, passage, garden, yard, garage, outhouse or other appurtenance of such premises which is not used in common by the occupants of more than one such dwelling). Possession of the relevant weapons on domestic premises will be an offence.

Some the defences included in this section are not correct in relation to the new offence of possession under the Offensive Weapons Act 2019 others are not as clear as they could be. As such, this section needed to be revised as follows:

The defences that already exist under section 141 of the 1988 Act also apply to their simple possession. Some additonal defences have been added by the 2019 Act. In relation to the new offence of possession, the defences available under section 141 of the 1988 Act are:

• the weapons is of historical importance;
• the person possessed it in their capacity as the operator of, or as a person acting on behalf of, a museum or gallery;
• the person possessed it for educational purposes only;
• the person possessed the weapon for the purposes of theatrical performances and of rehearsals for such performances or for making it available for those purposes;
• the person possessed the weapon for the purposes of the production of films or for making it available for that purpose; and
• the person possesed the weapon for the purposes of the production of television programmes or for making it available for that purpose.

Antique weapons, over 100 years old, are exempted from section 141 of the 1988 Act^[9]. This exemption now also applies to the offence of possessing such antique weapons.

The penalty for possession in private is, on summary conviction to imprisonment for a term not exceeding 6 months, to a fine not exceeding level 5 on the standard scale or to both.

3.3.4 Section 47 - Prohibition on the possession of offensive weapons: supplementary

Section 47 of the 2019 Act amends Article 2 of the Criminal Justice Act 1988 (Offensive Weapons) (Scotland) Order 2005 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.

3.3.5 Section 48 - Surrender of prohibited offensive weapons

Section 48 of the 2019 Act makes provision for those who currently legally hold offensive weapons, the possession of which has become prohibited by the 2019 Act, to be able to surrender those weapons at designated police stations. There will be a defined window for people to hand in weapons and, where eligible, claim compensation.

Details and guidance on surrender and compensation arrangements will be published separately by the Scottish Government, before the compensation arrangements come into force via secondary legislation.

3.3.6 Section 49 – Payments in respect of surrender offensive weapons

Regulations, made under section 49 of the 2019 Act, will provide for compensation payments to be made to eligible owners of previously legally held offensive weapons, who voluntarily hand these weapons into the police for safe disposal.

Compensation will only be payable in respect of offensive weapons lawfully owned on, or immediately before, 20 June 2018 when the Offensive Weapons Bill was first introduced in the UK Parliament. Compensation will only be payable to those who owned a cyclone or spiral knife on, or immediately before, 22 January 2019 when the Bill was amended.