Possession of an Offensive Weapon in Prison (Section 40CA Prison Act 1952)

Possession of an Offensive Weapon in Prison is an offence under s.40CA Prison Act 1952. A person who, without authorisation, is in possession of a specified article inside a prison is guilty of an offence (s.40CA(1)); the specified articles are any article that has a blade or is sharply pointed, and any other offensive weapon as defined in s.1(9) Police and Criminal Evidence Act 1984 (s.40CA(2)). It is a defence to show that the accused reasonably believed he had authorisation to be in possession of the article, or that in all the circumstances there was an overriding public interest which justified his being in possession of it (s.40CA(3)). "Authorisation" means authorisation given for the purposes of the section (s.40CA(5)). Maximum sentence: on conviction on indictment, imprisonment for a term not exceeding four years or a fine (or both); on summary conviction, imprisonment for a term not exceeding the general limit in a magistrates' court (12 months for an offence triable either way, Sentencing Act 2020, s.224(1A)(b)) or a fine (or both) (s.40CA(4)). Section 40CB creates a separate offence of throwing any article or substance into a prison without authorisation, with a maximum on indictment of two years' imprisonment or a fine (or both) (s.40CB(1) and (4)).

In practice

This is an either-way offence: it may be tried at the magistrates' court or the Crown Court. Mode of trial depends on the seriousness and the defendant's election. The suspect must be cautioned in accordance with Code C PACE 1984 before any questions about the offence are put to them. Interviews must be audio-recorded (Code E) or, for indictable offences, may be visually recorded (Code F).