Claim of Lawful Excuse – Did you possess a weapon with a lawful excuse?
If you have been charged with possessing a weapon, you may have the defence of lawful excuse.
Section 8 of the Control of Weapons Act 1990 provides the defence of lawful excuse. Section 72 of the Criminal Procedure Act 2009 makes it clear that it is a defence to show on the balance of probabilities that you possess a weapon with a lawful excuse. Section 6 of the Control of Weapons Act indicates that the definition of “lawful excuse” includes:
- the pursuit of any lawful employment, duty or activity;
- participation in any lawful sport, recreation or entertainment; or
- the legitimate collection, display or exhibition of weapons.
It does not include self-defence.
The Supreme Court decision of Burr v Shield in 1995 unreported, gives further guidance on the meaning of the section.
In that case the plaintiff at first instance gave evidence in the Magistrates’ Court that:
- he had a baton in his possession as part of his business;
- he had tried to sell the item (although the plaintiff accepted at the time of being intercepted he had not sold a baton previously); and
- he had not attempted to sell one for 6 weeks.
The Magistrate found that given the defendant had not ever sold a baton or even attempted to sell a baton in six weeks, his purpose for possessing the baton was not lawful. That decision was overturned on a question of law on the basis that the plaintiff does not lose the protection of subs (3) of section 6 of the Control of Weapons Act merely because he does not make active efforts on a regular basis to use or sell them.
If you have been charged with possessing a controlled weapon, you should call our office to discuss whether you might have a defence to the charge.
