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Police Law 11th Edition

43. Preventive Justice

Chapter 43

The abolition of the common law offence of incitement, and its replacement (see p 1154), have taken effect.

STATUTORY CONSPIRACY p1159

In the fourth line of the penultimate paragraph under this heading ‘in a foreign country’ is amended to ‘outside England and Wales.’ [Coroners and Justice Act 2009, s 72]

Actus reus p 1159

For there to be a statutory conspiracy there must be an agreement that a course of conduct shall be pursued which, if the agreement is carried out in accordance with the parties' intentions, will necessarily amount to or involve the perpetration of an offence or offences by one or more parties to the agreement; it is not enough that it will necessarily amount to or involve one or more of the parties aiding, abetting, counselling or procuring the perpetration of an offence by someone not a party to the agreement. 'Commission' in CLA 1977, s 1(1) means 'commission by perpetration'. [R v Kenning[2008] EWCA Crim 1534, [2008] 2 Cr App R 451]

Lawful authority or reasonable excuse p 1169

Mere forgetfulness that an article was in the defendant's possession cannot in itself found a defence of reasonable excuse: [R v Tsap [2008] EWCA Crim 2679, (2009) 173 JP 4].

Police powers p 1170

The provisions referred to in this paragraph are still not yet in force in Wales. In respect of England, the Education Act 1996, s 550 AA is prospectively replaced by the Apprenticeships, Skills, Children and Learning Act 2009, s 242, which adds new sections, ss 550ZA-550ZC, to the Education Act 1996. These new sections give (in England) any member of the staff of a school power to search a pupil whom that member of staff reasonably suspects to have in his or her possession a ‘prohibited article’, viz:

1. a knife or blade etc to which CJA 1988, s 139 applies;
2. an offensive weapon within the meaning of PCA 1953, s 1;
3. alcohol;
4. a controlled drug;
5. a stolen article; or
6. an article of a kind specified in regulations.

Corresponding amendments have been made to the Further and Higher Education Act 1992, in respect of England, by the Apprenticeships, Skills, Children and Learning Act 2009, s 244, which prospectively replaces (in England) the Further and Higher Education Act 1992, s 85B with ss 85AA-85AD.

Manufacture, sale, etc. of specified weapons p 1171

The last sentence of the paragraph under this heading is prospectively deleted by the Policing and Crime Act 2009 (P & CA 2009), Sch 8.

UNLAWFUL IMPORTATION OF OFFENSIVE WEAPONS p1172

From a day to be appointed, CJA 1988, s 141ZB (inserted by P&CA 2009, s 102) prohibits the importation of an offensive weapon, ie a weapon other than one subject to the Firearms Act 1968 or a crossbow, specified by an order made by the Secretary of State. Breach of this prohibition is not an offence under CJA 1988 but is an offence under the Customs and Excise Management Act 1979, s 50.

The importation of a weapon is not prohibited by CJA 1988, s 141ZB in respect of importation for the purposes only of:

1. functions carried out on behalf of the Crown or a visiting force;
2. making it available to a non-profit-making museum or gallery;
3. making it available for theatrical performances, rehearsals for them or film or television programme production (CJA 1988, s 141ZC, prospectively added by P&CA 2009, s 102).

In proceedings under the Customs and Excise Management Act 1979 for breach of the prohibition under CJA 1988, s 141ZB, an exception under s 141ZC is to be taken not to apply unless sufficient evidence is adduced to raise an issue with respect to it, in which case the exception is to be taken to apply unless the contrary is proved beyond reasonable doubt. [CJA 1988, s 141ZD, prospectively added by P&CA 2009, s 102]