Bishop Hill Why you should carry a truncheon and why it's legal to do so
May 8, 2007 Civil liberties Crime Firstly a caveat. I'm no sort of a lawyer and I'm not qualified to comment on this kind of thing. The wise course of action would probably be to shut up, but I'm a blogger so wise courses are not par for the course. I'm relaying something I came across on a forum for criminal solicitors called, um, criminalsolicitor.net, which must rank as one of the most interesting threads I've read.
It was started by a solicitor whose client was accused of carrying an ASP - apparently a kind of extending truncheon. He had been seen with it by police, who had responded when he telephoned them after a bin had been thrown through his window and he had been verbally threatened. While he was acquitted, the exposition of the relevant law was fascinating. (Of course, whether it is a correct exposition is another matter).
Some of the positions made on the thread are:
- Common Law, and its declaration in the Bill of Rights of 1689 allowed ordinary citizens to carry weapons.
- For the law-abiding citizen at least, this position was not changed by the Prevention of Crime Act 1953, which was only intended to prevent criminals from carrying weapons. This is confirmed by the Hansard record on the Parliamentary debate of the time. There is also a clue in the title of the Act.
- The PCA 1953 did not repeal the Bill of Rights explicitly. Subsequent case law has shown that the BoR, as a constitutional act, cannot be repealed implicitly.
- PCA 1953 did, however, reverse the burden on proof, requiring the accused to show prove their innocence using one of the available defences of "lawful authority" or "reasonable excuse". It is argued that "lawful authority" refers to the common law right to carry a weapon which is declared in the Bill of Rights.
- Most defences under PCA 1953 have used "reasonable excuse". Case law has shown that carrying a weapon on the offchance of attack is not reasonable. If you are threatened, however, it is.
- The "lawful authority" argument has been untested by the courts, apart from some non-binding comments in a "reasonable excuse" case which argued that it referred to police and military carrying of weapons.
- The term "lawful authority" is not defined in the act. This being the case, the question is asked "Where does a policeman derive his lawful authority to carry a truncheon?". There is no legislation conferring this authority. It is argued that the only place it can come from is the Bill of Rights/common law and the duty to preserve the peace - ie the same place as everyone else. Again this seems to be confirmed by the Hansard record in which it is explained that it refers to the common law duty to preserve the peace.
So, if they are right, ordinary citizens are allowed to carry arms. Indeed one of the commenters claimed to do so as a matter of course. He said that he'd never had any trouble with the police either.
I can't help but think back to the guidance on self-defence issued by the Home Office a couple of years ago which was a masterpiece of obfuscation. If they'd said it's alright to carry a truncheon for your defence, all would have been clear.
But is it right?
Reader Comments (10)
Police Officers have lawful authority, when on duty, by virtue of their office and standing orders of the Chief Constable. Soldiers have lawful authority when on duty by virtue of the orders issued to them by their officers. In both cases the authority to so authorise is set out in statute.
Reasonable cause is now more or less restricted to 'immediate arming' i.e. you pick up something lying nearby to use as a weapon after being assaulted or on perception that you are about to be assaulted.
Sorry, but if a policeman, off duty, was found in possession of his truncheon he would also be liable to arrest, and they get told that very plainly at training school.
Feel free to try the legal argument set out in this blog by all means, but don't be surprised if you get arrested and convicted.
Frankly, I support the carriage of weapons by citizens for their own protection, it should only be their improper use that should be made illegal. It was a moral panic about teddy boys and their cut throat razors that brought in the initial legislation, and the nanny state has pushed it further since then.
There's an argument to be made on either side though. You show me a single spree killing such as Dunblane, etc. that was carried out with an unlawfully held firearm. You'll be hard pressed. The officer killed in the last week was killed with a lawfully held firearm.
If we all get weapons, the police will get firearms. I wouldn't trust some of my colleagues with a sharpened pencil let alone a gun, so I'll live with the status quo.
Jim
Good reason is at the discretion of the courts. They will always rule in favour of police carrying truncheons and against citizens doing so.
The BoR specifies "having" arms for defence, but not "carrying".
I'm all for law abiding British citizens being able to go armed if they so please, but I don't think there's a legal basis for it (though a moral and political one, certainly).
Do you know what the statute is that sets out the lawful authority for policemen and soldiers to go armed? One of the points made in the thread I'm reporting on was that there is no such statute and the state is, in fact, relying on the Bill of Rights.
There are licensing requirements for guns and tasers and so on. Whether this is actually a breach of the Bill of Rights is an interesting question.
As I understand it, lawful authority is not defined in the Prevention of Crime Act 1953. There is no caselaw on it (apart from the obiter comments mentioned in the post). So where is your interpretation of the meaning coming from?
The Corronation Act
This is the Coronation Oath Act 1688 I think?
I can't find the words "lawful" or "authority" in it. I'm not sure what you're getting at.
These truncheon or the police sticks are very popular law enforcement used by cops around the world.