ChemRegs Newsletter – April 2022

Offensive Weapons Act 2019

The Offensive Weapons Act Commencement Regulations have now been signed, which means the remaining provisions of the Offensive Weapons Act 2019 came into force on 6 April 2022.

The Act includes new legislative measures to control the sale of knives and corrosive products, and it introduces new offences relating to their possession and use.

This means that it brings the term “corrosive substance” into substantive criminal legislation for the first time and creates a new criminal offence of possessing a corrosive substance in a public place.

The term “substantive criminal legislation” is used to convey the intention of society to view a course of conduct as very serious. For example, although parking on a double yellow line breaches criminal law as it is an offence, it is something that is done many times a day and society does not fall apart if a driver receives a parking ticket. In contrast, a breach of substantive criminal legislation must be stopped immediately and punishment inflicted in order to prevent serious harm to society.

Over the last few years the incidence of ‘acid attacks’ on people has increased substantially in the UK. Perpetrators of these acid attacks throw corrosive substances at their victims, usually at their faces, burning them and damaging skin tissue and often exposing and sometimes dissolving the bones. Acid attacks can often lead to permanent blindness.

Most of the victims in the UK are male (67%) and it is usually related to gang related violence, although worldwide it tends to be women (80%) who are the victims and it is mainly gender based violence.

The latest police recorded crime figures, published by ONS for the year ending March 2020, shows that there were 619 violence against the person and robbery offences involving corrosive substances (excluding Greater Manchester Police). It had previously been estimated from a National Police Chiefs Council voluntary data collection covering the period October to December 2017, that there were around 800 corrosive attacks per annum in England and Wales.

Part 1 of the Act responds to the threat posed by the use of corrosive substances as a weapon to inflict serious harm. Whilst this type of crime is not new, the use of corrosives as a weapon is of significant concern given the life changing injuries that these substances can inflict. The measures provided by the Act strengthen the powers of the police, Trading Standards and other partners to be able to tackle these crimes. The Act puts in statutory form what has always been part of English common law i.e a corrosive substance, if used to injure or frighten another person, becomes an offensive weapon.

The purpose of Part 1 of the Act is to make it more difficult to obtain corrosive substances, especially by young people under the age of 18. The provisions in Part 1 are designed to restrict access to those products containing the most harmful corrosive substances by prohibiting the sale and delivery of corrosive products to under 18s.

In the case of business to business supply and purchasing of corrosive products, the sale and delivery provisions would not apply as the sale is being made to a business and not to a person under 18. The only exception is where a business is run by a sole trader who is under 18. In these circumstances, the sole trader would need to make arrangements for the corrosive products to be purchased by, and delivered to, a person who is over 18.

“Corrosive products” are substances with certain concentration limits (or higher) that must not be sold or delivered to under 18s. Corrosive products, if misused, can lead to serious harm and life changing injuries.

“Corrosive substances” are substances which are capable of burning human skin by corrosion. This definition is specific to the offences in the Act and is focused on the effects of the substance, as it is known that corrosives are often decanted into containers or bottles to make them easier to conceal and use as a weapon. It includes substances that would be regarded as corrosive products but it also covers a wider set of substances and products that do not cause the same level of serious harm and injuries. A person must not have a corrosive substance in a public place without a good reason or lawful authority.

Schedule 1 of the Act lists the particular substances and the concentration limit at which they fall within the definition of “corrosive product” for the purposes of the Act.

A number of corrosives listed in Schedule 1 of the Act are also listed, in the same concentrations, as explosive precursors and poisons under the Poisons Act 1972 controls. The Poisons Act 1972 was amended via the Deregulation Act 2015 and the Control of Poisons and Explosives Precursors Regulations 2015 were introduced to create a cohesive regime to control sales of explosives precursors and poisons.

The substances defined as corrosive products in Schedule 1 of the Act include those which are known to have been used in attacks and also those which have the potential to be used as a weapon to inflict serious harm and life changing injuries. The concentration limits reflect the thresholds at which these substances would be most likely to cause potentially permanent or life changing injuries.

Some of the substances defined as corrosive products are commonly used in such products as strong drain cleaners and unblockers, brick and patio cleaners, paint strippers and industrial cleaning agents, which members of the public may purchase for legitimate purposes. Most of these products will also be marked to show that they contain a strong corrosive and that they can seriously burn the skin. However, products such as normal strength household bleach and cleaners will not be caught by the age restrictions on sales as they tend to be more of an irritant and do not contain corrosive chemicals at the concentrations set out in the Schedule. Sellers will, however, need to check their product ranges to ensure that they know which products meet the definition of a corrosive product and must not be sold to a person under 18.

Batteries (in any form) are exempt from the sales and delivery controls in the Act, given the wide uses of batteries in everyday items and the volume of batteries which are in everyday use, but the substance or product has to be contained within a battery to be exempt. This means that battery acid itself is not exempt, nor are acid filler bottles.

Part 1 also strengthens the powers of the police, making it an offence to possess a corrosive substance in a public place without good reason or lawful authority. There is a defence provided to this offence where the person can prove that they had good reason or lawful authority for having the corrosive substance with them.

So how do you prove that drain cleaner was going to be used in an acid attack and not used for cleaning a drain?

The following are the elements that the prosecution must prove:

• “Public place” includes any place to which at the material time the public have or are permitted access, whether on payment or otherwise.
• “Lawful authority or reasonable excuse” – Lawful authority would include carrying an offensive weapon as a matter of duty, e.g. a police officer carrying a baton or a member of the public who had bought a corrosive substance and was taking it home for the purpose for which it had been designed – for example, to unblock their drain or for decorating/DIY purposes, or a person would have good reason to have possession of a corrosive substance that they used in the course of their business or employment. For example, a plumber who has drain unblocker, a builder who has a brick cleaner, an employee of a cleaning company who has industrial strength cleaning agents, or an employee of a swimming pool cleaning company who has swimming pool chemicals.

There are also restrictions on where corrosive products can be delivered.

It is a criminal offence to deliver a corrosive product, or arrange for its delivery, to a residential address or a locker.

Residential premises are defined for the purposes of the Act as “premises used solely for residential purposes”. This definition has been used to ensure that deliveries of corrosive products can be made to businesses that are run from residential premises.

A locker is defined as “a lockable container to which the package was delivered with a view to its collection by the buyer, or a person acting on behalf of the buyer, in accordance with arrangements made between the seller and the buyer”. Lockers are often positioned in petrol stations or retail outlets and involve a code being sent to the purchaser in order to open it. They do not easily enable age verification to be carried out at the point of collection.

Sellers must also ensure all packages containing a corrosive product are clearly marked to indicate that they contain a corrosive product and that they must only be delivered into the hands of a person aged 18 or over. It is up to the seller to determine how best to meet this marking requirement – for example by using a sticker or other label.

Sellers could consider the use of symbols as part of the package labelling process. However, sellers will not be able to use the GB CLP Regulations corrosive hazard pictogram, except where the substance or mixture has been classified as corrosive using the CLP criteria and as part of a complete CLP hazard label.

The GB CLP Regulation allows for additional labelling information to be included on packaging provided that such information does not make it more difficult to identify the hazard elements already provided and does not contradict or cast doubt on the validity of those elements. Where the GB CLP corrosive pictogram appears, it must sit alongside the relevant legally mandated GB CLP hazard and precautionary phrasing.

Therefore, it may be possible for sellers to use a separate, differently designed corrosive hazard symbol as long as they ensure it does not look too similar to the legally designated GB CLP hazard pictograms. A differently designed corrosive hazard symbol could, for example, be used separately together with wording that this product should only be delivered to someone aged 18 or over.

The government has issued statutory guidance on the provisions in the Offensive Weapons Act 2019. This provides advice for those required to comply with, or enforce, the measures in the Act, and with other legislation that is amended by the Act, in England and Wales. It also provides advice in respect of sections 1 to 4 of the Act in Scotland in relation to the sale and delivery of corrosive products. This statutory guidance does not apply in Northern Ireland.

The guidance can be downloaded from https://www.gov.uk/government/publications/the-offensive-weapons-act-2019

Other News

Biocides GB Article 95 List

Biocidal active substance and product suppliers included on the EU Article 95 List at the end of the EU exit transition period on 31 December 2020 were automatically added to the GB Article 95 List.

However, if suppliers want to remain on the GB Article 95 List after 31 December 2022, they must resubmit their data or letter of access to HSE and also confirm to HSE that they (or their representative) are established in the UK (Great Britain or Northern Ireland).

If suppliers have already provided their data or letter of access to comply with earlier GB resubmission deadlines, then they do not need to submit this again, but must confirm that they are based in the UK.

The letter of access must be valid in the UK.

HSE accepts EU BPR letters of access providing they are accompanied by a written statement from the issuer confirming that the access extends to GB BPR. However, the data owner may also choose to issue GB BPR specific letters of access.

Suppliers that fail to complete these actions by 31 December 2022 will be removed from the GB Article 95 List.

For more information on anything in this Newsletter, please contact us at info@chemregs.co.uk