Under the Offensive Weapons Act 2019 [‘the Act’] courts can now impose knife crime prevention orders [‘KCPOs’] on anyone over 12 deemed to be at risk of becoming involved in knife crime. These civil orders, which impose positive requirements and prohibitions on the subject, may be made in respect of a defendant following conviction or on complaint by the police to the youth or magistrates’ court. Breaching a KCPO can amount to a criminal offence, with a maximum sentence of two years’ imprisonment. Like other civil orders which result in criminal proceedings when breached, the concern is that KCPOs will criminalise rather than protect the children subjected to them.
A KCPO can be ordered against any individual over the age of 12 where:
- the procedural requirements have been met;
- the court finds it necessary to make the order to protect the public or particular persons from risk of physical or psychological harm involving a bladed article, or to prevent the subject being involved in an offence using a bladed article.
If the order is made on conviction, the court must be satisfied that the defendant has been convicted of a relevant offence (see section 19 of the Act). Where the application is made otherwise than on conviction, the court must be satisfied that the subject has been in possession of a knife in a public place without good reason or lawful excuse on at least two occasions within the previous two years. This cannot include events prior to the provisions coming into force (see section 14 of the Act).
A KCPO can impose requirements and prohibitions upon its subject. The government in the Home Office Practitioners’ Guidance, July 2021 urges practitioners to ‘think creatively and carefully’ as to the positive requirements to be imposed by such an order. Applications must be tailored to the individual circumstances of the case; as the Practitioners’ Guidance notes, ‘the reasons for carrying a knife vary greatly, from intimidation, to fear of danger, to even self-harm, and therefore the positive requirements best suited to the individual will vary accordingly’. Where the application is made in respect of a child, the Youth Offending Team must be consulted (see section 15 and 20 of the Act) and any relevant social worker should also contribute their knowledge of the child and the child’s circumstances to the court.
Examples given of positive requirements include education, mentoring, participation in sport clubs or group sports, relationship counselling and targeted intervention programmes. Examples of prohibitions from the Practitioners’ Guidance include: participating in particular activities, being with particular persons and using the internet to facilitate or encourage crime involving bladed articles.
KCPOs can run for a minimum of six months and a maximum of two years. The order must be reviewed if any requirement or prohibition runs for longer than one year, although the court may require more frequent reviews (see section 26 of the Act). The Practitioners’ Guidance notes that KCPOs made in respect of children should be ‘subject to more scrutiny than those issued to adults’ and this can be achieved, for example, by requiring more regular reviews. Either party can apply to extend, vary or discharge the order and can appeal decisions made by the lower courts in respect of KCPOs to the Crown Court.
The government insists the intention of these provisions is to be preventative rather than punitive. But clearly the orders run the risk of fast-tracking children into the criminal justice system. The fact of an order will appear on one’s criminal record and breaching the terms of an order (which do not need to adhere to the criminal standard of proof or criminal rules of evidence before being imposed) is a criminal offence. In other words, children may be prosecuted for behaviour that would not otherwise be criminal. In 2019 the Human Rights Charity Liberty said of the orders: ‘not only will KCPOs fail to address the root causes of violence, they will likely exacerbate the conditions conducive to it’. Certainly, without the upmost sensitivity and care as to their use, the capacity to impose highly restrictive measures on a child, before they have even been convicted of a crime, and to subsequently monitor their compliance with the order runs the risk of harming that child’s trust in various public authorities.
The success, or otherwise, of the government’s purported intention lies in the application of these new powers. Take enforcement of suspected breaches of the order as one example. The discretion to prosecute for a breach lies with the police and the CPS. The Home Office Framework Guidance, July 2021 notes that enforcement can be a ‘blunt instrument’ and concedes that, according to the evidence, ‘highly punitive sanctions have little impact on recidivism’, but ultimately the decision in any particular case will lie with individual practitioners. We would urge defence practitioners to ensure that there has been meaningful consultation with the YOT (in accordance with s.15 and 20 of the act) and that the best interests of the child remains a principle concern during the decision making process.
Defence practitioners should ensure that there has been meaningful consultation with the YOT (in accordance with s.15 and 20 of the act) and that the best interests of the child remains a principle concern during the decision making process.
Similarly, public trust in these orders will depend upon the issues they are used to address. Will these orders, with the power to prevent ‘behaviour which facilitates or encourages crime’ become another tool in the controversial efforts to curtail the production of drill music videos?
Certainly, the extent to which these orders enable positive work supporting vulnerable young people depends upon the willingness of various authorities to dedicate time and services to those young people: there can be no mentoring requirement if there are no available mentoring services. As is often the way with intervention strategies, the issue may turn out to be one of funding. In 2020 The Guardian reported a 70% cut in funding for youth services over the last decade. The extent to which these orders are backed-up by the necessary investment to meet the stated objectives is yet to be seen.
Ruth Broadbent, Barrister, QEB Hollis Whiteman Chambers