Offensive Weapons Act 2019 Scottish statutory guidance

The Offensive Weapons Act 2019 (“the 2019 Act”) requires the Scottish Ministers to produce statutory guidance which relates to the provisions contained within the legislation that extend to Scotland.  The 2019 Act also requires the Scottish Government to consult on draft guidance before it can publish the final version of the statutory guidance.

Therefore, the purpose of the consultation was to seek views on the draft statutory guidance only.  The consultation ran from the 15 November 2021 until the 25 January 2022.

We received 12 responses to the consultation.  3 responses were from organisations and 9 were from individuals.  Separate from the online consultation system, we also received one e-mail addressed to the Scottish Government on the draft guidance.  All of the responses and correspondence received have been considered.

Most of the responses related to the overall policy contained in the 2019 Act rather than the content and structure of the draft guidance.  Only 2 responses (which were from organisations) provided detailed comments on the guidance with another 3 responses providing limited views on the content of draft guidance along with comments on the overall policy.  Only one respondent (individual) asked for their response not to be published.  We received a variety of comments in relation to the draft guidance.  The majority of which fell broadly into the following areas:

• Guidance should cover sections 1 to 5 of the 2019 Act.
• Clarity on age verification/labelling and the delivery to residential premises.
• Clarity on the types of corrosive products and the level of acidity of such corrosive products for an offence to be suspected of taking place.
• Clarification on the definition of bladed articles and bladed products.
• Other general comments included:
  • A better description in relation to public place.
  • Clarity in relation to outdoor activities (e.g camping) and what is and is not acceptable as a bladed weapon for such outdoor activities.
  • Clarity on requirements necessary in order to stay within the law while traveling with corrosive substances and or bladed weapons.
  • Guidance on acceptable proof of age documents.
  • Guidance on what constitutes residential premises and what constitutes a business.
  • Guidance on what constitutes, taking all reasonable precautions and exercised all due diligence to ensure that, when finally delivered, the package would be delivered into the hands of a person aged 18 or over.

We have considered the responses received and made changes where deemed appropriate.

We have also set out the Scottish Government’s response to some specific comments made.

Guidance should cover sections 1 to 5 of the 2019 Act.

As stated in the ‘Overview’ section, the guidance covers provisions in the 2019 Act that extend only to Scotland and others which apply throughout the UK but which have a different effect in Scotland to other parts of the UK.  It is separate from similar guidance issued by the UK Government in respect of the 2019 Act.  The UK Government’s guidance covers sections 1 to 5 of the 2019 Act in relation to the sale and delivery of corrosive products and other aspects of the 2019 Act (e.g. firearms under Part 6) which extend to Scotland but which relate to areas of responsibility reserved to the UK Government.  The two pieces of guidance should be read together for those provisions.  The UK Government’s final draft statutory guidance on the 2019 Act was published by the Home Office on 18 January 2022.

As such, it was deemed not appropriate to include guidance on section 1 to 5 of the 2019 Act in the Scottish statutory guidance as these sections are covered by the UK Government’s statutory guidance. 

Clarity on age verification/labelling and the delivery to residential premises

Age verification

In order to avoid committing an offence under certain provisions in the 2019 Act relating to remote sale of certain items to under 18s, a seller requires that, amongst other matters, to have in place a system that was likely to prevent purchasers who were under 18.  This is an age verification system.  The 2019 Act does not prescribe what system should be used in respect of the verification of an individual’s age and there are a range of age verification processes or systems available on the market.  Both the UK Government and the Scottish Government are of the view that they do not want to issue standards for systems for electronic age verification.  This is because decisions on which systems, or courier/delivery companies, to procure and use to meet the requirements of the law must be a matter for the relevant seller.  It will be a defence for sellers to demonstrate that they took all reasonable precautions and exercised all due diligence to avoid committing an offence and this includes the element above relating to a system for checking that purchasers are not likely under 18 .  Therefore sellers will wish to decide themselves which system or arrangement works best for them to allow them to rely on this defence.

Labelling

The Scottish Government’s position is similar on the requirements in relation to labelling packages under measures in the 2019 Act.  The 2019 Act requires that, where a package is to be collected from a collection point, a package containing a bladed or sharply pointed article, or corrosive product, must be clearly marked to indicate that it contains an item with a blade, a sharp point or a corrosive product and that it should only be delivered into the hands of a person aged 18 or over.  The 2019 Act does not stipulate the type of labelling or any of its characteristics, and so sellers will need to determine how best to comply with the labelling requirement.

However, in the draft guidance it stated that, in the Scottish Government’s view, it is unlikely that electronic labels used on handheld signature devices as often used by delivery companies and couriers would satisfy the requirements of the 2019 Act, and that clear and visible labelling will be important for retail and delivery staff and couriers so that they are fully aware that the package contains an article that must not be handed to someone under 18.  If the package is not labelled as required by the 2019 Act for the sale of a bladed article, then the defence to the offence of selling a bladed article to a person under 18 will not be available.

Residential delivery

In relation to residential delivery of a bladed product there is no requirement for the package to be labelled but the seller needs to prove that they had procedures in place which were likely to ensure that any bladed product would be delivered into the hands of a person aged 18 or over, and that they have taken all reasonable precautions and exercised all due diligence to ensure that the package has not been delivered to someone aged under 18. The draft guidance states that the seller may be able to satisfy this requirement by following measures in respect of an adequate age verification system, labelled packaging and ensuring age checks are undertaken at the point of delivery.

Clarity on the types of corrosive products and the level of acidity of such corrosive products for an offence to be suspected of taking place

As stated, the Scottish Government’s and the UK Government’s statutory guidance should be read together for sections 1 to 5 of the 2019 Act.  This feedback relates to sections 1 to 5. 

Within this context, it is noted that a similar point was raised in relation to the UK Government’s draft statutory guidance.  As a result, the UK Government incorporated additional guidance into their final version of the statutory guidance.  They have suggested that the content of various corrosive products is clarified by manufacturers through the REACH etc. (Amendment etc.) (EU Exit) Regulations 2019 which will be of assistance in helping sellers identify products.  It places a specific duty on suppliers (whether manufacturers, importers or distributers) of hazardous chemical substances or mixtures to provide a Safety Data Sheet where the substance or mixture is placed on the market and this allows information to be passed down through the supply chain to ensure that these chemicals are safely managed.

Additions to the guidance have also been made to clarify the relationship between the 2019 Act and the Poisons Act 1972 and these additions remind businesses, who sell or supply regulated and reportable substances, that they must report any suspicious transactions to the national contact point and any significant disappearances and thefts of these chemicals to their local police force.

Clarification on the definition of bladed articles and bladed products

The guidance includes material already in this area.

In particular, it is noted that the 2019 Act builds on existing legislation in relation to a ‘bladed article’ as set out under section 141A of the Criminal Justice Act 1988 (“the 1988 Act”) which applies to three separate categories of items: knives, knife blades and razor blades; axes; and any other article which has a blade or is sharply pointed and which is made or adapted for causing injury to the person.  These items must not be sold to under 18s.

‘Bladed products’, as introduced by the 2019 Act are a subset of ‘bladed articles’ and must not be delivered to residential premises unless certain conditions are met if sold remotely (online, over the phone or by post).  To fall within the definition of a bladed product within the meaning of the 2019 Act the item must have a blade and be capable of causing serious injury to a person that involves cutting that person’s skin.  This means that knives that could not cause such an injury will not fall within the definition of bladed product and can be delivered to residential premises.

Most cutlery knives, for example, are therefore unlikely to be considered as bladed products but would be a “bladed article” for the purposes of the 2019 Act and sellers would therefore need to carry out age verification checks, both in-store and online, in relation to sales of these items but they would not be subject to age verification checks on delivery to residential addresses.

We considered carefully the comments made in relation to this issue and were of the view the guidance clearly sets out the differences between a ‘bladed article’ and a bladed product’.  We are also of the view the examples provided in the guidance aid the readers understanding of this difference.  As such, we felt it was unnecessary to amend the guidance in relation to this point.

We did however, make it clearer in the guidance that it is not an offence to sell or supply a pocket knife to someone under the age of 18 providing that the knife in question has a folding blade which is 3 inches (7.62 cm) or less in length and, therefore, pocket knives are not caught by any of the measures in the 2019 Act.

Other general comments

Following the UK’s exit from the European Union, there is a need to add UK driving licences to the list of prescribed documents.  The Scottish Government intends, subject to approval being received from the Scottish Parliament, to add UK driving licences to the list of prescribed documents under the 2019 Act.

The purpose of the guidance is to provide a readily accessible discussion of the key features of the 2019 Act that extend only to Scotland and others which apply throughout the UK but which have a different effect in Scotland to other parts of the UK.  This could be helpful for anyone interested in the relevant provisions, but in particular those required to comply with, or enforce, the measures contained within the 2019 Act.

Nothing in this guidance is intended to change how the legislation should be interpreted.  It is for those operating the legislation and, ultimately, the courts to interpret the legislation.

As such, the Scottish Government considers that the statutory guidance provides a useful overview of the principles of the 2019 Act, but for obvious reasons cannot specifically cover every potential factual scenario that might arise.