Court says instant use of an article as a weapon may not amount to a separate offence
Offensive weapon conviction has been quashed by the Court of Appeal after it found that the use of a crutch during an assault did not amount to a separate offence under section 1(1) of the Prevention of Crime Act 1953.
In Anthony Kalinga v R [2026] EWCA Crim 1135, the Court of Appeal (Criminal Division) considered whether a person can be convicted of having an offensive weapon in a public place where they come into possession of an article and immediately use it as a weapon.
The court heard that Kalinga was involved in an altercation with Ebima Cessay on Old Christchurch Road, Bournemouth, shortly after 4am on 25 April 2025. Cessay had two crutches. During the incident, one of the crutches was handed to Kalinga after Cessay had swung the other at him.
According to CCTV footage reviewed by the court, Kalinga immediately struck Cessay with the crutch. The footage indicated that the use occurred within one or, at most, two seconds of Kalinga being handed it. He continued to hit Cessay in the head area before passers-by intervened. Cessay suffered injuries including an injury to his nose, a cut above his forehead and a cut to his thumb.
Kalinga was convicted at Bournemouth Crown Court on 11 March 2026 of assault occasioning actual bodily harm and having an offensive weapon. He was sentenced on 26 June 2026 to 14 months’ imprisonment on the assault count, with a concurrent one-month sentence on the weapon count and two months consecutive for other matters. He appealed only against the weapon conviction.
The Court of Appeal examined the established authorities on section 1(1) of the 1953 Act. The provision makes it an offence, without lawful authority or reasonable excuse, to have an offensive weapon in a public place. An offensive weapon includes an article intended by the person having it with them to cause injury.
The court stressed that the law distinguishes between carrying an offensive weapon and using an article during an assault. Where an article is taken up and the intention to use it offensively cannot properly be separated from the assault itself, the person is not also guilty of the section 1(1) offence.
The court referred to Ohlson v Hylton, R v Humphreys and C (A Juvenile) v Director of Public Prosecutions, among other authorities. Those cases established that the prosecution must show that the defendant was carrying or equipped with the weapon and had formed the intention to use it offensively before the occasion for its actual use arose.
The Court of Appeal said the same principle continued to apply. Whether section 1(1) is made out depends on whether taking up the article and forming the intention to use it offensively can properly be regarded as distinct from the assault itself. If they cannot, it is inappropriate to charge the section 1(1) offence separately.
In Kalinga’s case, the court found that the crutch had been brought to the scene by Cessay and that Kalinga used it immediately after a passer-by handed it to him. On the available evidence, there was no proper distinction between Kalinga taking the crutch and forming the intention to use it as a weapon and the assault itself.
The court therefore held that the trial judge had erred in law by not withdrawing the weapon count from the jury. It also said the Crown should not have added the count to the indictment because it was an unnecessary distraction.
The Court of Appeal granted leave to appeal and quashed Kalinga’s conviction on Count 2. The prosecution did not seek a retrial. The court noted that quashing the conviction would not affect the sentence imposed because the weapon sentence had been concurrent and the assault sentence had already taken account of the use of the crutch as a weapon.