Offensive Weapons Bill — House of Lords, 2019-03-04
Topic: Law and Crime
Diana Barran (Conservative, Centre-right): My Lords, this amendment returns, as the noble Lord, Lord Paddick, just said, to an issue that he raised in Committee about the differences between the revised offence of threatening with an offensive weapon in public in Clause 29 of the Bill and the offence of affray under Section 3 of the Public Order Act 1986. I wrote to him on this matter on 21 February. I will try to clarify the difference to your Lordships’ satisfaction and give an example of how it will work in practice. The difference between the two offences is not simply a matter of different maximum penalties, as Amendment 94 implies The offence of affray deals with circumstances where a bystander observes someone threatening another person and where the bystander feels threatened. The offences of threatening with an offensive weapon in public under Section 1A of the Prevention of Crime Act 1953 and of threatening with an article with a blade or point or offensive weapons under Section 139AA of the Criminal Justice Act 1998 deal with circumstances where a person is themselves being threatened. Indeed, in practice it is possible to commit both offences at the same time, as the noble Lord will be aware and as the CPS charging advice sets out. An example would be where someone is holding person A by the throat in the road, screaming and shouting, but also waving a knife around in the air so that person B thinks that the defendant might also come for them—that would be an offence of affray—or someone might start a fight in a pub in such a way that people nearby think that the person might also start on them, as opposed to cases where there is not that perception that a bystander would be affected. Case law examples include driving a car at another occupied vehicle or setting dogs on the police with the words, "Go on! Go on!"—only in case law does such language get used Therefore, affray concerns a reasonable bystander who witnesses someone else being threatened and fears for their own personal safety. This is a different test from that under the offences amended by the Bill, which ask whether a reasonable person exposed to the same threat as the victim would think that there is an immediate risk of physical harm to that victim. Under the offences in the Bill it is therefore what a reasonable person in the victim’s shoes would be likely to feel when threatened, rather than whether a person witnessing a threat against someone else also feels threatened. Amendment 94 therefore fails to address the fact that these offences deal with different things. As I have indicated, it is not just about penalties, although I fully accept that I highlighted this as a key difference in Committee. Affray is a public order offence and therefore focuses on the weapon and the threat to the wider public, rather than the impact on the victim. The offences of threatening in public deal with the victim being threatened I hope, in the light of this further explanation, that the noble Lord is persuaded that we are not creating unnecessary duplication in the criminal law and, on that basis, will be content to withdraw his amendment.