Moved by Lord Lucas
89: Clause 23, page 22, leave out lines 39 to 43 and insert— “(8) It shall be a defence for any person charged in respect of any conduct of that person relating to a weapon to which this section applies—(a) with an offence under subsection (1) or (1A), or(b) with an offence under section 50(2) or (3) of the Customs and Excise Management Act 1979 (improper importation),to show that the conduct was only for the purposes of functions carried out on behalf of the Crown or of a visiting force.(9) In this section “visiting force” means any body, contingent or detachment of the forces of a country—(a) mentioned in subsection (1)(a) of section 1 of the Visiting Forces Act 1952, or(b) designated for the purposes of any provision of that Act by Order in Council under subsection (2) of that section,which is present in the United Kingdom (including United Kingdom territorial waters) or in any place to which subsection (10) below applies on the invitation of Her Majesty’s Government.(10) This subsection applies to any place on, under or above an installation in a designated area within the meaning of section 1(7) of the Continental Shelf Act 1964 or any waters within 500 metres of such an installation.(11) It shall be a defence for a person charged in respect of conduct of that person relating to a weapon to which this section applies—(a) with an offence under subsection (1) or (1A) above, or(b) with an offence under section 50(2) or (3) of the Customs and Excise Management Act 1979,to show that the conduct was only for the purposes of functions carried out as the operator of, or as a person acting for, a specialist licensed armoury company holding an authority to possess prohibited weapons granted by the Secretary of State under section 5 of the Firearms Act 1968 for one or more of the purposes specified in subsection (12) and subject to all the conditions in subsection (13).(12) Those purposes are—(a) the purposes of theatrical performances and of rehearsals for such performances,(b) the production of films (within the meaning of Part 1 of the Copyright, Designs and Patents Act 1988 – see section 5B of that Act),(c) the production of television programmes (within the meaning of the Communications Act 2003 – see section 405(1) of that Act).(13) Those conditions are—(a) the weapon is accompanied by a supervising armourer or handler in attendance throughout the production,(b) disposal of the weapon by sale or gift is only permitted to another similar specialist licensed armoury company or a museum or by export to another state or country where the laws of that state or country permit import of the weapon.(14) It is a defence for a person charged with an offence under subsection (1) or (1A) to show that the weapon in question is antique.(15) For the purposes of subsection (14) a weapon is an antique if it was manufactured in or before 1945.(16) For the purposes of this section a person shall be taken to have shown a matter specified in subsection (3), (4), (5), (8), (11) or (14) if— (a) sufficient evidence of that matter is adduced to raise an issue with respect to it; and(b) the contrary is not proved beyond a reasonable doubt.”Member’s explanatory statementThis amendment would introduce a series of defences in respect of activities (1) of non-public museums operated by the Ministry of Defence or police forces, (2) of visiting forces, (3) of the film, theatre and television industries and (4) in relation to antiques.
My Lords, I shall speak at the same time to Amendment 90. I am very grateful to the Home Office for bringing a large and intelligent team to listen to representations concerning in particular the use of weapons in film and antique weapons. I am grateful for the time that we were given. I have not received any feedback since those meetings so I have tabled these amendments as a way of receiving that feedback.
There are three sections here. The first concerns an exemption for the Crown Forces. The Government have said they do not think it is required, but as a matter of routine overseas forces issue their personnel with gravity knives and flick-knives and it is said that our own Special Forces use them from time to time. Some members of our Armed Forces are being picked up and persecuted for crimes when they thought that they were acting in the line of duty, and we should not expose them to attack for having a weapon that was required and legal at the time. We should give them some protection.
Secondly, there is the question of film. We make a lot of money out of making films in this country. By and large, film directors want their close-up shots to be authentic in terms of the look, sound and heft of real weapons. Clearly, these things have to be used in secure conditions, but we allow heavy machine guns, assault rifles and similar items to be used in films made in this country under conditions of strict control. There are licensed armourers who supply such weapons for dramatic performances and films. It does not seem to me that people who are trusted with such weapons should not be trusted with the weapons prohibited under the Bill. To have a film of “Mack the Knife” without a flick-knife would seem a bit odd. I cannot see that by allowing an exemption for film and performance, we are doing anything more dangerous than we allow for other weapons at the moment. This is a direction in which we should feel comfortable about moving.
Thirdly, the same applies to antique weapons. At least in this House, many of our parents were heavily involved in the Second World War. There are many items used in that war that were issued to members of civil defence or captured from German troops that are very properly considered collectible and part of our national history, but are not so unique that the British Museum would want to end up with a large collection of them. We ought to allow these items, as we allow other weapons, to be part of collections. We allow old swords and other very dangerous weapons to be collected. Why not the weapons that we are prohibiting under the Bill, as long as they are antique?
I think 1945 is a convenient time to end the definition of “antique”, mostly because shortly thereafter steel became contaminated with radioactive elements from the aerial atom bomb tests, so you can distinguish old steel from new. Also, designs changed a good deal after the war, and there was a long period when some countries did not produce. So 1945 is a convenient cut-off: you can tell what is pre-1945 and what is later, and that is also where the intense history ends. It would be sensible to allow us all to possess the mementos from the last great war and to prohibit weapons produced after it. Apart from anything else, these antique weapons go for a considerable price and are very unlikely to be bought by someone who just wants to use them in a crime and then throw them away.
I very much hope that my noble friends will be bearing me at least a semblance of an olive branch on this amendment, and that we will be able to look in a constructive way at these three potential exemptions. I am not holding out for any of the detailed wording in the amendments, but I hope this is an area that my noble friends will feel able to smile on. I beg to move.
I am grateful to my noble friend, Lord Lucas, for these amendments. As he mentioned, we had a very useful discussion on the issues covered by them on
These amendments would create new defences for the supply and possession of weapons covered by Section 1 of the Restriction of Offensive Weapons Act 1959, namely flick-knives and gravity knives. The amendments would provide defences for Crown functions and visiting armed forces, for theatrical, film and television production purposes, and for flick-knives and gravity knives made before 1945. As I set out in Committee, Section 1 of the 1959 Act makes it a criminal offence to manufacture, sell, hire or lend a flick-knife or gravity knife and prohibits their importation. Clause 23 extends that prohibition to cover the possession of flick-knives and gravity knives.
I turn first to the proposed defence for Crown functions and visiting armed forces. I am afraid we are not persuaded that a defence is needed in this area. The supply, including importation, of flick-knives and gravity knives has been prohibited for a long time and the Ministry of Defence has advised that there is no need to provide defences for this purpose. We are also not aware of any Crown function that would use flick-knives or gravity knives, unlike under Section 141 of the Criminal Justice Act where curved swords may be an issue. In any event, the general principle in law is that statutes do not bind the Crown unless by express provision or necessary implication. Where acting as agents or servants of the Crown, the military will benefit from the Crown exemption. The Government are therefore not persuaded that any defence for the Crown or visiting armed forces is needed.
On a defence for the purpose of theatrical performance or filming, it was clear at the meeting that the supply of flick-knives and gravity knives for such purposes has not been an issue in the past 60 years, despite their supply being banned. The supplier at the meeting suggested that most of the items used for these purposes are blunt, so it is doubtful they meet the knife definition in the 1959 Act. Given this, again, we are not persuaded that any defence is needed for flick-knives and gravity knives for theatre and film purposes.
I have more sympathy for the proposed defence for flick-knives and gravity knives made before 1945. We are aware that there are collectors of these weapons and we also know that families sometimes inherit them from relatives who fought in the war. Possession of the weapons will be banned under the Bill, so collectors and families will need to surrender any weapons they own and claim compensation, or gift them to a museum where they are of historic importance.
Our concern in accepting a defence for pre-1945 weapons is that it will be difficult to operate on the ground. In contrast to what my noble friend suggested, the police will not know with any certainty which knives had been made before 1945 and which are more modern. I appreciate this is not the answer that my noble friend would like to hear, but given that the supply of the weapons has been banned in this country since 1959 we remain of the view that there is no good reason why anyone should possess them.
Can the noble Baroness reassure me on a question that I raised at Second Reading? Does the Royal Company of Archers, the Queen’s bodyguard in Scotland, qualify for the Crown’s exemption on weapons? I also asked about a rather shady area, which the noble Earl, Lord Erroll, is probably more familiar with than I am. Are the Atholl Highlanders taken to be doing historical re-enactments, or are they likely at some point to take up weapons as a legal army?