02 Jul 2019

The rise in knife crime has placed a spotlight on the checks and procedures retailers have in place to prevent underage knife sales. A programme of test purchasing has been underway since October last year by trading standards teams and the clear message is that more needs to be done. This article considers recent legal developments, including the prosecution of B&M Bargains, and the impact of the Offensive Weapons Act 2019 on the sale of knives, which will come into force after the Government has consulted with businesses and industry. 

Offence to sell knives to under-18s

In summary, it is an offence to sell a knife to anyone under 18 subject to limited exceptions, including the sale of folding pocket knives if the cutting edge of the blade is less than three inches. The penalty is an unlimited fine and/or, if you are an individual, imprisonment for up to six months. Both the individual who processed the sale and/or their employer are liable to prosecution. 

Current approach of the courts 

There is a significant degree of uncertainty in respect of the potential level of fine that a court may impose in the absence of any sentencing guidelines. However, what is certain is that retailers can expect fines to have a real impact on the bottom line as in the prosecution of B&M Bargains last year. 

B&M Bargains was fined £480,000 after pleading guilty to three charges of selling knives to under-18s. The court took a dim view of the sufficiency of the steps taken by the company to prevent underage knife sales. District Judge Gary Lucie remarked that "One of the most concerning failures is that B&M did not implement other systems. This includes putting knives in cupboards as it does with perfume". 

Due diligence – effective measures to preventing underage sales 

Retailers will have a 'due diligence' defence if they can show that they took all reasonable precautions and exercised all due diligence to prevent the underage sale. Whether or not a retailer has exercised all due diligence is ultimately a question of fact for the court to decide in all the circumstances of the case. However, while not legally binding, Government guidance is generally accepted as best practice. More specifically:

Retail stores 

In respect of retail stores, the guidance (available here) explains that the key features of an effective due diligence system should include, in summary:

  • Conducting age verification checks at point of sale
  • Operating a Challenge 21 or 25 policy
  • Staff training 
  • Maintaining a refusals log
  • Considering store/product layout, eg storage behind the counter 
  • Till prompts, ie programming the till to highlight that an age restricted product is scanned through
  • Signage to explain the age verification policy and remind staff
  • Operate CCTV cameras to act as a deterrent and monitor any 'blind spots' in store 

Distance sales including online 

Separate guidance (available here) has been published for online retailers. It emphasises the need to take positive steps to verify the age of the purchaser, and not simply rely upon any representations made by the purchaser. This guidance will change following the introduction of the Offensive Weapons Act 2019. 

Under the Act, retailers selling knives (and other bladed articles) online, via mail order or over the phone will not be able to argue a due diligence defence unless, in summary, they can show that they as a minimum: 

  • operate an age verification system that is likely to prevent purchases by under-18s
  • mark packages ready for dispatch to indicate that they contain a knife and that they should only be delivered to someone aged 18 or over
  • take all reasonable precautions and exercise all due diligence to ensure that, when finally delivered, the package will not be delivered into the hands of a person under 18; and 
  • do not deliver, or arrange to be delivered, packages to a lockable container for collection.

Deliveries are permitted to residential addresses so long as the retailer has taken all reasonable precautions and exercised all due diligence to ensure that age verification checks are undertaken at the point of final delivery so that packages are only delivered into the hands of a person aged 18 or over. 

The provisions of the Act relating to knife sales have not yet come into force and the date is currently unknown. However, the Government has announced that it will consult on guidance for some of the new measures in the Act, and engage with businesses and industry on how the legislation will affect them before it comes into force. 

What steps should retailers be taking now?

While guidance will be provided in relation to online sales after a period of consultation in due course, retailers would still be well advised to review the measures they have in place to prevent underage sales without delay, particularly in light of the ongoing national programme of test purchases and increasingly severe penalties imposed for these offences. 

It can often be a difficult balancing exercise to determine what are sufficiently robust measures to take. The Government guidance referred to above is a useful starting point but retailers may also wish to consider the following:

  • Third party couriers – if you arrange for third parties to make deliveries, do you know what checks and policies they have in place? When was the last time you reviewed them? Are they contractually required to have measures in place to prevent deliveries to under-18s?
  • Knife crime 'hot spots' – have you identified stores in higher risk areas (eg London) and considered whether a different approach is required in relation to these areas?
  • Mystery shoppers – do you regularly test the effectiveness of age verification procedures for both online and retail store purchases?
  • Staff engagement – do you recognise and reward staff who correctly verify age eg following passed test purchases? How often are staff briefed eg for new age restricted product lines?
  • Refusals register reviews – are routine and frequent reviews of the refusals register undertaken to help, for example, to identify training needs? Have you ever seen the records for any couriers that you use for deliveries?
  • Product range – are some products more attractive to shoplifters or children than others? Tesco, for example, recently announced that it no longer sells single knives in stores. Should some items be limited to sales in stores only, and not sold online?
  • Store security – can additional measures be taken to make it more difficult for shoplifters (eg placing knives behind locked cabinets, security tagging or using dummy packs)?

Our specialist regulatory team is actively advising businesses in relation to these issues and would be delighted to assist with any queries or concerns you may have. Please do not hesitate to contact Gavin Matthews or Ashley Borthwick.