From: "Michael Burke", [EMAIL PROTECTED]
>>An "act of self defence" and then found guilty of having an
>>offensive weapon - strange days indeed.
>Indeed - now although the court seemed to agree this was self defence why
>doesn't it also claim that the weapon was actually a defensive weapon in
>these circumstances?
>Neil Francis
Neil,
I'll try and answer this one in "simple" terms!
Prior to the 1953 Prevention of Crime Act, which "created" a new crime, you
could carry a weapon with you in a public without committing an offence.
This was because you had a common law right to arms for defence.
Correspondence with the Met Police Solicitors department confim this.
This Act introduced two new terms covering the carriage of weapons in a
public place, lawful authority and reasonable excuse.
As this Act contravened the Bill of Rights, the term "lawful authority" was
included which confirmed you right to carry a weapon.
However, the words "lawful authority" were not defined, because to do so
would have confirmed your common law right to carry a weapon in public in
the very same Act which purported to take it away, negating its intent.
During the debate on the above Bill,The Secrerary of State for the Home
Department, Sir David Maxwell Fyfe had this to say regarding firearms.
"It would be useful if, just to present the full picture, I said a word or
two about firearms because it has been long recognised that firearms are in
a special position. I was asked at Question time today to say something
about it.
It may well be that in certain circumstances, the court will hold, if a
charge is brought, that a firearm is an offensive weapon for the purposes of
this Bill."
As a certificate was "lawful authority" in a public place, this Act did not
place any restriction on certificate holders.
The same obscure words were later incorporated in the1965 Firearms Act.
Again, they were never defined.
During the debates on the 1965 Firearms Act, the sponsor of the Bill, Sir
Frank Soskice was asked to define the words "lawful authority" or
"reasonable excuse."
He had this to say.
"A lawful occasion for the carriage of a firearm will be one, for example,
when it is being carried for a necessary purpose of some sort by a person
who has an appropriate firearms certificate.
Obviously, the phrase will have to be carefully defined in legislation.
Obviously, also, there is the personal liberty aspect of the power of police
search. I can assure the House that I myself and the police will be most
careful in the way in which this power is exercised."
The phrase never was defined in subsequent legislation.
In a later debate on the 1965 Firearms Bill, Lord Stonham, another sponsor
of the Bill, confirmed that you had a right to carry a firearm and a
certificate confirmed it. (Page 819. Firearms Bill 25 May 1965)
Now, as the Prevention of Crime Act purports to make it an offence to carry
a weapon in public, any acts of self-defence would have to be spontaneous.
ie. on being attacked, you would pick up something with which to defend
yourself.
If you already had a weapon with you at the time you were attacked, this
would be construed as being anticipatory. You could not plead self-defence
as you weren't supposed to be carrying a weapon in the first place.
On those rare occasions, as with this case, the prosecution have likely
conceded that anticipitory acts are lawful but the defence did not argue the
lawful authority aspect because of the flawed judgement of Bryan v Mott.
I believe that if ever a case with a plea of not guilty on the grounds of
"lawful authority" were to be correctly presented and upheld by a jury, it
would make unsafe all convictions since 1953 where the defendant had pleaded
self defence.
Regards,
Mike Burke.
Cybershooters website: http://www.cybershooters.org
List admin: [EMAIL PROTECTED]
___________________________________________________________
T O P I C A http://www.topica.com/t/17
Newsletters, Tips and Discussions on Your Favorite Topics
