The Criminal Justice Act 1988 Order 2008

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The Criminal Justice Act 1988 Order 2008

Postby Big Lazy » Sun Mar 30, 2008 7:40 pm

Thought it best that this be made a sticky :evil:

Draft Order laid before Parliament under section 141(11E) of the Criminal Justice Act 1988, for approval by resolution of each House of Parliament.

Draft Statutory Instruments

2008 No.
Criminal Law, England And Wales

Criminal Law, Northern Ireland

The Criminal Justice Act 1988 (Offensive Weapons)(Amendment) Order 2008
Made
2008
Coming into force
6th April 2008

The Secretary of State makes the following Order in exercise of the powers conferred by section 141(2) and (11D) of the Criminal Justice Act 1988(1).

In accordance with section 141(11E) of that Act(2), a draft of this Order was laid before Parliament and approved by a resolution of each House of Parliament.

Citation, commencement and extent
1.—(1) This Order may be cited as the Criminal Justice Act 1988 (Offensive Weapons) (Amendment) Order 2008 and shall come into force on 6th April 2008.

(2) This Order extends to England and Wales and Northern Ireland.

Amendment of the Criminal Justice Act 1988 (Offensive Weapons) Order 1988
2.—(1) The Schedule to the Criminal Justice Act 1988 (Offensive Weapons) Order 1988(3) (which specifies offensive weapons for the purposes of section 141 of the Criminal Justice Act 1988) is amended as follows.

(2) In paragraph 1, after sub-paragraph (q) insert—

“(r) a sword with a curved blade of 50 centimetres or over in length; and for the purposes of this sub-paragraph, the length of the blade shall be the straight line distance from the top of the handle to the tip of the blade.”.
(3) After paragraph 2 insert—

“3. It shall be a defence for a person charged—

(a) with an offence under section 141(1) of the Criminal Justice Act 1988; or
(b) with an offence under section 50(2) or (3) of the Customs and Excise Management Act 1979(4),
in respect of any conduct of his relating to a weapon to which section 141 of the Criminal Justice Act 1988 applies by virtue of paragraph 1(r) to show that the weapon in question was made in Japan before 1954 or was made in Japan at any other time according to traditional methods of forging swords.

4. It shall be a defence for a person charged—

(a) with an offence under section 141(1) of the Criminal Justice Act 1988; or
(b) with an offence under section 50(2) or (3) of the Customs and Excise Management Act 1979,
in respect of any conduct of his relating to a weapon to which section 141 of the Criminal Justice Act 1988 applies by virtue of paragraph 1(r) to show that his conduct was for the purpose only of making the weapon available for the purposes of the organisation and holding of a permitted activity for which public liability insurance is held in relation to liabilities to third parties arising from or in connection with the organisation and holding of such an activity.

5. For the purposes of paragraph 4—

“historical re-enactment” means any presentation or other event held for the purpose of re-enacting an event from the past or of illustrating conduct from a particular time or period in the past;
“insurance” means a contract of insurance or other arrangement made for the purpose of indemnifying a person or persons named in the contract or under the arrangement;
“permitted activity” means an historical re-enactment or a sporting activity;
“sporting activity” means the practising of a sport which requires the use of a weapon described in paragraph 1(r);
“third parties” includes participants in, and spectators of, a permitted activity and members of the public.
6. For the purposes of paragraphs 3 and 4, a person shall be taken to have shown a matter specified in those paragraphs 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.”.
Minister of State
Home Office

EXPLANATORY NOTE
(This note is not part of the Order)

Section 141 of the Criminal Justice Act 1988 (“section 141”) provides that any person who manufactures, sells or hires or offers for sale or hire, exposes or has in his possession for the purpose of sale or hire, or lends or gives to any other person, a weapon to which that section applies shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or both. The importation of any such weapon is prohibited.

The Criminal Justice Act 1988 (Offensive Weapons) Order 1988 (the “1988 Order”) specifies descriptions of weapons to which section 141 applies. This Order adds swords with a curved blade of 50 centimetres or over in length to the list of specified weapons contained in the 1988 Order. In relation to such swords, this Order also provides for defences to an offence under section 141(1) and section 50(2) or (3) of the Customs and Excise Management Act 1979. These defences apply in relation to certain swords made in Japan or where the conduct which gave rise to the offence was undertaken for the purposes of certain historical re-enactments and sporting activities. The Order also makes provision for the standard of proof in relation to these defences.

(1)1988 c.33. Section 141(11D) is inserted in relation to England and Wales by section 43(4) of the Violent Crime Reduction Act 2006 (c.3 and in relation to Northern Ireland by paragraph 11(3) of Schedule 2 to that Act. Back [1]
(2)Section 141(11E) is inserted in relation to England and Wales by section 43(4) of the Violent Crime Reduction Act 2006 (c.3 and in relation to Northern Ireland by paragraph 11(3) of Schedule 2 to that Act. Back [2]
(3)S.I. 1988/2019, amended in relation to England and Wales and Northern Ireland by S.I. 2002/1668 and 2004/1271. Back [3]
(4)1979 c.2. Relevant amendments are section 114 of the Police and Criminal Evidence Act 1984 (c.60), regulation 4(1)(a) of S.I. 1996/2686 and section 12 of the Finance Act 1988 (c.39). Back [4]
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Re: The Criminal Justice Act 1988 Order 2008

Postby simonatack » Tue Apr 01, 2008 12:24 pm

So, with regard to straight-line length. I assume by the wording "Top of the handle" is to mean from the Pommel-end or Butt-top of the handle/grip, to the tip of the blade as the defining 50cm rule of measure, including all thickness of hilt-cross-section. Well, that does it for Wakizashis and some types of Napoleonic Sword-bayonets and Shortsabres, Cutlasses and Naval Hangers as well as Cavalry Sabers and Katanas. Pretty much everything curved-bladed is illegal as of the end of this week! So the government's original ban-blitz on 'cheap imitation samurai swords' is just another cowardly lie to cover up the truth of intent. If this isn't pure, unfair, unjust, unprincipled bullying by lying, writ large before us, then I don't know what is! And what possible offence is there in hanging a sword on a wall and enjoying it for itself, for Christ's sake?!

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Re: The Criminal Justice Act 1988 Order 2008

Postby Cool McSerious » Tue Apr 01, 2008 3:37 pm

I'm resorting to hoping that various forges think from a business perspective and reduce the length of waks in order to be able to sell in the UK. Probably a vain hope but it's all I got...
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Re: The Criminal Justice Act 1988 Order 2008

Postby Moon » Tue Apr 01, 2008 4:07 pm

This is a post from another forum which I've edited to protect the usernames...so according to the Home Office spokesperson...50cm is the length of the blade and not the overall measurement.

Just got off the phone with the Home Office - now this info is only as good as the person giving it but they answered most of the questions easily so seemed knowledgeable enough.

-Is the amendment definatly coming into force in April?
Yes - 6th April.

-Will cavalry / arabic / sabre style swords also be banned?
Yes - any sword that falls under the description will be banned.


-If exeptions are to be made for forged blades from Japan, what about traditionally forged blades made in the UK or China (Hanwei)?
UK / Chinese made swords are to be banned - so the likes of Paul Chen etc will be seized after 6th April. Even if traditional forging methods are used, if it's not from Japan it's banned.

-Confirm straight blades are OK.
Yes - straight edged blades are unaffected.

- Is 'Top of handle' the Tsuba / guard end or pommel end?

50cm is measured in a straight line from tip to guard or where the blade meets the handle.

- If someone is a member of a Martial arts class, how do they go about importing a sword for this legitimate use? Does it have to be confiscated then the seizure appealed or is there a process where a license can be applied for?
This is where it got fuzzy. A dealer importing bulk quantities may be asked to prove they are a bone fide dealer, for individuals you may have to provide copies of membership details and public liability insurace details to have your sword delivered. Whether you import the item, have it seized then appeal the seizure providing the info or whether you will have to apply for a license to import the item first was not known.

And I added the good point about cultural / religious exemptions.
No exemption will be made for any religious or cultural use at all. If the item comes under the description it will be banned without exception.

Well, there it is - guess well all sleep safer tonight.
"Wise men speak because they have something to say: fools because they have to say something"...Plato

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Re: The Criminal Justice Act 1988 Order 2008

Postby simonatack » Tue Apr 01, 2008 4:40 pm

So, in the light of this, as the official response to these, I must say, excellent questions. We now know for certain, how the blade is to be measured. Tip to hilt. As Japanese swords are not my area of technical expertise, would this give hope to Cool Mac' and many others for Wakizashis? I wouldn't mind a few myself to be honest?...Moon?, Larnz?...Anybody?

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Re: The Criminal Justice Act 1988 Order 2008

Postby Moon » Wed Apr 02, 2008 1:22 pm

simonatack wrote:So, in the light of this, as the official response to these, I must say, excellent questions. We now know for certain, how the blade is to be measured. Tip to hilt. As Japanese swords are not my area of technical expertise, would this give hope to Cool Mac' and many others for Wakizashis? I wouldn't mind a few myself to be honest?...Moon?, Larnz?...Anybody?


It appears that if the blade is 50cm or less measured in a straight line from the tip of the kissaki to the tsuba,then it's exempt.
However,some retailers give the nagasa (blade) measurement which doesn't include the habaki so one should be very careful in establishing this first...personally,I'd err on the side of caution until some of the wording in the Ammendment is made more clear and not base a defence on a telephone conversation as I'm guessing that some of HM Customs Officers wouldn't know a kashira (pommel) from a kissaki anyway.
I must admit that many people will probably find this confusing...
“(r) a sword with a curved blade of 50 centimetres or over in length; and for the purposes of this sub-paragraph, the length of the blade shall be the straight line distance from the top of the handle to the tip of the blade.”.

...and until something official is printed in black and white,I'm not gonna try to bring anything into the U.K.

Another problem with the import of Japanese blades is provenence as there are so many mumei (unsigned) blades which have not been submitted for Shinsa by the NBTHK or the NTHK and have no documentation and fake blades,some of which are very good and also have fake documentation...not to mention the genuine WWII machine made blades for which it's nigh impossible to obtain any sort of provenence.
There are instances of Japanese people selling genuine documentation on ebay which was issued for mumei swords which have been lost for one reason or another...no Law has been broken because they're only offering the documents for sale but we all know what the buyers want them for.
Importing a genuine Nihonto piece bought via internet auction sites has always been risky at best and as most sellers don't know which code to enter on the Customs forms the casual buyer gets stung by the Import Duty at the full rate when there is a reduced rate for genuine antiques...this new legislation is going to add to what is already a veritable minefield and my advice is to leave any importation to those who are experienced in the dealing of Nihonto or sell blades on consignment and know exactly what they have and what they're doing.
"Wise men speak because they have something to say: fools because they have to say something"...Plato

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Re: The Criminal Justice Act 1988 Order 2008

Postby quench » Thu Apr 03, 2008 7:06 pm

Sorry for the falling out moon. Speaking of the new law, is a cantonese gim sword legal, being a perfect straight blade?

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Re: The Criminal Justice Act 1988 Order 2008

Postby Moon » Thu Apr 03, 2008 8:06 pm

quench wrote:Sorry for the falling out moon.

What falling out ? ;)

quench wrote:Speaking of the new law, is a cantonese gim sword legal, being a perfect straight blade?

I don't know if there's any difference between the Chinese gim and a "Cantonese" gim but if not then the answer is yes,it's perfectly legal at the moment but keep in mind that talks are going on behind closed doors to add all swords to the new Ammendment by next October.
"Wise men speak because they have something to say: fools because they have to say something"...Plato

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Re: The Criminal Justice Act 1988 Order 2008

Postby simonatack » Thu Apr 03, 2008 8:11 pm

Thank for kindly giving my question a fulsome reply moon. In the light of what you say, I think caution is the watchword here. We'll just have to wait and see how the law is interpreted and enforced, as far as modern-forged replicas and copies of Wakizashis are concerned at any rate.

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Re: The Criminal Justice Act 1988 Order 2008

Postby BlackCat » Tue Apr 08, 2008 2:28 pm

Do you think they will confiscate swords that people already have?
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Re: The Criminal Justice Act 1988 Order 2008

Postby Big Lazy » Tue Apr 08, 2008 3:12 pm

BlackCat wrote:Do you think they will confiscate swords that people already have?
no :roll:
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Re: The Criminal Justice Act 1988 Order 2008

Postby Moon » Tue Apr 08, 2008 4:21 pm

BlackCat wrote:Do you think they will confiscate swords that people already have?

You obviously haven't even read anything at all about the Ammendment have you? :S
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Re: The Criminal Justice Act 1988 Order 2008

Postby darkness2 » Tue Apr 08, 2008 8:16 pm

BlackCat wrote:Do you think they will confiscate swords that people already have?

:roll: :roll: :roll: :roll: :roll:
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Re: The Criminal Justice Act 1988 Order 2008

Postby the_haggis » Sat Apr 19, 2008 10:51 pm

One of the fuzzy areas I want to know more about: public liability insurance. As a paid up member of IMAF practising a recognised sword art I have insurance for the purposes of training. Is this likely to include public liability? Also - if you were to have access to private property to which the public have no access (paid or unpaid) then is public liability insurance still needed? Or would it have to be in place for you to legally transport your blade(s) to class?

As it stands it looks like the actual outcome of the act is to be determined by the insurance companies.

Your thoughts?

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Re: The Criminal Justice Act 1988 Order 2008

Postby simonatack » Thu May 01, 2008 2:01 am

The best answer would be to take your policy to an insurance broker and let them see and explain in detail what kind of cover you actually have, Haggis. It may be that your current policy is a Personal Accident Policy; which only covers you for accident or injury to yourself in pursuance of your sport. Public Liability Insurance covers you against claims for loss due to accident or injury to other parties and/or accidental damage to property where you are found to be the liable cause. It is this policy you should have. "Injury Lawyers For You" and their ilk


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