LAW REPORT v 9 July 1997: Butterfly knife made for causing injury to the person

Director of Public Prosecutions v Hynde; Queen's Bench Divisional Court (Lord Justice Henry and Mr Justice Gage) 3 July 1997

A butterfly knife was a dangerous weapon per se, being made for the purpose of causing injury to the person.

The Divisional Court allowed the Director of Public Prosecution's appeal by way of case stated against the decision of the Stipendiary Magistrate at Uxbridge Magistrates' Court, dismissing a charge that the respondent, without lawful authority or reasonable excuse, had with her in an aerodrome in the United Kingdom (Heathrow) an article, namely a butterfly knife, made or adapted for causing injury contrary to section 4(4) of the Aviation Security Act 1982.

Nicholas Coleman (CPS) for the Director of Public Prosecutions; the respondent did not appear and was not represented.

Lord Justice Henry said that knife in the present case fitted the description in the Schedule to the Criminal Justice Act 1988 (Offensive Weapons) Order 1988 (SI 1988/2019), to which section 141 of the Act applied. Section 141 provided that any person who manufactured, sold, hired, lent or imported such a weapon was guilty of an offence. It did not, however, cover the offence with which the respondent had been charged, simple possession of "certain dangerous articles" under section 4 of the Aviation Security Act 1982. The articles to which that section applied included those "made or adapted for use for causing injury to or incapacitating a person . . . or intended . . . for such use".

The issue was whether the knife was made for causing injury to the person.

The Crown had sought to prove that simply by producing the knife and referring the magistrate to section 141 of the 1988 Act and the statutory instrument made thereunder. They had submitted that as section 141 forbade, inter alia, the selling or hiring or lending of butterfly knives, it was appropriate to infer that a butterfly knife was a dangerous article as defined in section 4 of the Aviation Security Act 1982.

The magistrate was not persuaded, and had posed the following question for the court:

Whether, on the facts found, I was correct in holding, as a point of law, that evidence or further evidence was required to establish that a butterfly knife was an article made or

adapted for use for causing injury to

or incapacitating a person?

The starting point for the legal analysis was R v Williamson (1978) 67 Cr App R 35, in which Lord Lane CJ had emphasised the three categories of dangerous or offensive weapons wrapped up in the statutory language, and that it was a matter of fact for the jury whether the weapon fell into any and if so which of those categories.

The similarity between a flick knife and a butterfly knife was clear from Gibson v Wales (1983) 76 Cr App R 60. The conclusion in that case, which mutatis mutandis could be extended to butterfly knives, was that a flick knife was a dangerous weapon per se.

That case was considered in R v Simpson (1983) 78 Cr App R 114, in which the Court of Appeal found that such weapons were

plainly designed . . . to be concealed conveniently in the hand or in the pocket and there concealed to be brought into use with the minimum delay to the assailant and the minimum of warning to the victim . . . By their very design in this way they betray the purpose for which they were made

and that the conclusion that a flick knife was necessarily made for use for causing injury to the person was matter of which judicial notice could be taken.

Just as the courts had taken judicial notice of the fact that flick knives were offensive weapons, butterfly knives should also be so treated, because it was clear that they were essentially the same weapon involving the same features of concealment, speed and surprise. The magistrate could and should have taken judicial notice of that fact.