The (very strict) Letter of the Law

Here's one for you on a friday…

The Law IS and ass

A man found a bag in his garden. The bag contained a sawn off shotgun and ammunition. He phoned the police the following day, arranged a meeting with a local police officer and took the weapon in. Upon presenting the weapon to the officer he was promptly arrested for being in posession of a firearm. The case went to court where it was explained to the jury that the offence is a strict liability charge and they had to find him guilty. He now faces a mandatory five year minimum sentence.

In criminal law most cases require an actus reus along with mens rea. Actus reus is the act itself while mens rea is the guilty mind, that is to say you have to be aware what you are doing is wrong and have bad intention when doing it. In strict liability cases there is no defence that you did the act with good intentions, the mere carrying out of the act is enough to carry a conviction.

In this case it clearly doesn't seem to make sense – The man did what he thought was best and clearly acted in the public interest yet finds himself facing punishment for doing so.

The police officer has done what he is supposed to do. He arrested the man for the offence.

The CPS have done their job. They have prosecuted a case where they believe they have a reasonable chance of a conviction.

The Judge and Jury have done their duty. The offence has been commited and, in law, there is no defence.

The only get out would have been for the CPS to have decided not to prosecute the case as it is clearly not in the public interest to do so.

The only get out would have been for the CPS to have decided not to prosecute the case as it is clearly not in the public interest to do so.

and that's where it should have been end of,,

nicely covered here on the Devils Kitchen blog
http://www.devilskitchen.me.uk/2009/11/son-of-gun.html

And to some extent here

I suspect learning the lesson is perhaps more important that gnashing teeth in this particular instance. If you find a gun in your garden, hide it in your loft where it will stay dry. 🙂

There's too many of those laws these days.

That Devil's kitchen man is a good example of someone who imagines that swearing and insult wins arguments.

His basic position appears to be that possession of a firearm should be entirely lawful in any circumstances until you actually march into a bank with it and start making a withdrawl. Anyone who diasgarees with this approach is well on the way to becoming a "f###ing stupid little wankstain". 🙂

He is swimming against a massive tide of stupid wankstains who do not particularly see why anyone needs a sawn-off shotgun for any legitimate purpose, and are happy to see the owners of such things told off. The way that is achieved is an offence of strict liability, which is not morally offensive as such as far as a vast majority of people are concerned. It does however require a certain amount of common sense from police and prosecutors in dealing with people who they believe are only within the offence at all for reasons of this sort.

Surely the Judge can impose no sentence, and should it not have been tested in court that they guy was legit?

How do we know he was not talking porkies?

I think there's a bit more to it, there must be. I don't understand why, when he called the station to make his "appointment", he didn't mention that fact he was bringing in a firearm. The matter would have been sorted there and then! I don't know if it's mentioned on any of those sites, but Mr Clarke had been caught in possession of some kind of weapon previously – something like a cattle prod I believe.

There's too many of those laws these days.

what dont walk into a police station carrying a **** gun type laws?

its political correctness gone mad!

he's carrying a gun! its not exactly opression of our human rights is it?

BD – I thought devilskitchens emphasis on peelian principals and the "f***** spineless jury" covered the requirement for "a certain amount of commonsense"

😉

That Devil's kitchen man is a good example of someone who imagines that swearing and insult wins arguments.

I dunno. I reckon he'd be great entertainment in court. Sort of Rumpole with Tourettes kind of thing 😉

I don't understand why, when he called the station to make his "appointment", he didn't mention that fact he was bringing in a firearm

I suspect I would think twice about doing this. Could you be absolutely sure that if you called the police and told them you had a gun you wouldn't then be attacked by a firearms team? I'd much rather walk into the station and frighten them with a gun in a bag than have a gun in a bag in my house ready to go to the station and be frightened by a load of carbine-toting chaps in balaclavas knocking the door down. 🙂

Surely the Judge can impose no sentence,

al – I think (BD will correct me if Im wrong) that illegal possession of a firearm is not just a matter of strict liability but also mandatory sentencing. In this case 5 yrs. Now there has been cases of judges not following mandatory sentencing, and one would hope that this is one that might fall in to it…

It really does strike me as odd that he didn't mention the fact he had found a gun. Or that the police didn't ask him why he wanted to make an appointment.

'Hi, can I come in and see someone'

'Sure, will 10.30 do?'

'Yeah, cheers, see you then'.

I wish making an appointment at the doctors was so easy.

I think that's right, yes.

The modern politicisation of criminal justice has stripped out important elements of discretion in the system, because successive Home Secretaries have passed legislation on the back of knee-jerk reactions to particular public concerns. A lot of this has created either offences of strict liability or imposed mandatory sentences to stop governments being embarrassed by "soft" judges passing sentences which they think are appropriate but the tabloids can't or won't understand.

The combination of strict liability and mandatory minimum sentences is absolutely toxic. 😐

BD – surely, the most logical thing to do would be to call the local police station and say there's a shotgun in my garden. I honestly can't think of any other course of action that would make more sense! Not saying he should get 5 years for being silly enough to hand it in mind!

The case can be "tested" whatever that means, so I suspect it's got a way to run yet.

Mores the pity the Jury didn't have the common sense to return a "perverse" verdict of not guilty, as is their right.

it would be nice to think that there was room for some common sense / lattitude…

Many years ago my father received a summons (I believe – I was quite young at the time) – apparently he had been "apprehended" in possesion of an unlicensed shot gun.

What had actually happened was that a junior copper had noticed that his shotgun certificate had expired and that he had not renewed it. A little "creativity" on the part of the eager for promotion constable resulted in a report that my father had been actually apprehended, at a specific time and location, with a loaded and unlicensed shotgun (unlicensed because his shotgun certificate had actually expired…

What actually happened was that my father was recovering from an industrial injury that included a broken neck – unsurprisingly he hadn't noticed that his licence required renewal. Not sure if the strict liability bit was in legislation then (pre Hungerford & Dunblane), but a combination of medical reports (stating that he could not have been where the copper said he was) and suitable application of discretion by more senior officers ended up with his licence being renewed rather than him being prosecuted..

Not sure that such a pragmatic approach would prevail today

woody – you are probably right in you opinion of what makes common sense, but the problem with this case (as BD shows above with his toxic comment) is that the defendants idiocy of not doing what you suggest leads him automatically to a five year sentence – with no defence.

Idiocy should not have a mandatory five year sentence. Wilful criminal activity should. The system should have the capacity to distinguish between the two.

I was responding to his previous comment about thinking twice about telling them you had a gun.

I'm aware of how stupid the "law" is in this case 🙂

I think that's right, yes.

The modern politicisation of criminal justice has stripped out important elements of discretion in the system, because successive Home Secretaries have passed legislation on the back of knee-jerk reactions to particular public concerns. A lot of this has created either offences of strict liability or imposed mandatory sentences to stop governments being embarrassed by "soft" judges passing sentences which they think are appropriate but the tabloids can't or won't understand.

The combination of strict liability and mandatory minimum sentences is absolutely toxic.

Absolutely BD couldn't have put it better myself!

I also think it is a symptom of our ever increasing 'target culture'. This was a 'quick win' for the police and CPS. No investigation needed, a prima facie case.

I would be surprised if there was no case law or judicial precedent governing these types of circumstances.

He should have taken it to the local dodgy pub and sold it to a wrongun. (bet thats what he wishes he had done)

Anyone want to try calling the cops to report a gun in a local park. Give them your details. when they turn up and can't find any guns, tell them you didn't want to touch it on account of this story, but you did see a couple of burberry baseball caps and shell suits taking an interest in it. Maybe they've handed it in?

Hey, he got off lightly, 5 years inside is way better than being shot in the face repeatedly!

He phoned the police the following day, arranged a meeting with a local police officer and took the weapon in

There's a bit more to it than. Apparently, according to him, quote :

"I didn't know what to do, so the next morning I rang the Chief Superintendent, Adrian Harper, and asked if I could pop in and see him."

Why on earth did he think that needed to speak to the "Chief Superintendent" ? Did he think that any lower ranking officer wouldn't be able to deal with the problem ? 😯

The whole story sounds very fishy to me. At the very least I reckon it could be a case of some smartarse thinking that it would be very funny to take the piss and walk into a police station and straight into the Chief Superintendent's office and pull out a sawn off shotgun out of a bag.

I am also not very keen on the idea that it's OK for muppets to go around carrying sawn off shotguns, just as long as if they are stopped by the old bill, they simply have to claim that they had found it in their gardens and were about to hand it in.

I agree there is more to this case than meets the eye. IMHO he has had a very poor defence council.

" hello police? I've just spotted there's a 'kin shotgun in my garden, I'm not touching it, you can come and get it sharpish…."

or you could just pick it up, take it in, then pull it out in the chief super's office and hope for the best.

"JacksonPollock – Member
I agree there is more to this case than meets the eye. IMHO he has had a very poor defence council"
Why do you say that ? He is accused of a strict liability offence. The only mens rea issue is wether or not he knew it was a firearm (he clearly did) His poor defence council has run the only possible option to achive a not guilty verdict ie put it to the jury and ask for a perverse verdict the judge has no doubt done his job explained the law to the jury and pointed out they are supposed to follow the law and not make it up for them selves and the jury have convicted .
The obvious point appears to have been missed that judges are under considerable pressure not to depart from minimum sentences but in this case no sentence has yet been passed which seems to suggest that his defence council far from being poor has actually done very well and has given the judge pause to consider weather "exceptoinal circumstances" exist that would allow him to depart from the minimum sentence in sec 51A of the Fire Arms Act 1698. My guess is if the "poor defence" lawer manages to stutter out the words "Rehman your honour"then subject to the report in the paper being correct this defendant will be ok.(Rehaman being the name of a case where the court of appeal departed from minimum sentence for a man of good character who had one weapon ,that he did not realise was unlawful, as a collector's model.)
To be honest i don't see the law saying "you shall not ever possess a sawn off" is a bad thing . Had this guy told the police over the phone what he had then he would never have been prosecuted the police would have sent an ARV round to pick it up safely instead he walked through town with it where in the words of the tabloids ANY THING COULD HAVE HAPPENED.

It all sounds too suss to me. Jahwomble and Ernie have hit the nail on the head really, the phone call should have been; "I've found a gun, come get it…" Surely that's the 'normal' response of the Man on the Clapham Omnibus?

I smell shite.

I would hope that if I phoned the police and told them that i'd found something like that in my garden that they'd be round here before i'd put the phone down. Maybe I am hankering after the good old days though…

Notice the 'IMHO'?

I think that his argument could have been put forward better to convince the jury. He is guilty only on a technicality. Whatever the sentence it will probably go to the court of appeal where hopefully the conviction will be overturned and it will set a precedent to refer back to in any future cases.

Or there may be other aggravating factors that haven't been reported, and his conviction may be just. On face value though it looks as though he was tring to do the decent thing and

I also think it is a symptom of our ever increasing 'target culture'. This was a 'quick win' for the police and CPS. No investigation needed, a prima facie case.

He is guilty that's what the rule of law means, there is not a concept of "only on a technicality" you either are or are not guilty . So how can the court of appeal overturn the conviction. thier job is to apply the law, not tear it up if they don't like the way it works out in a particular case.
I was not aware of how the advocate presented the defence, perhaps you could let us know how he did and point out what he ommited or what he wrongly included in his argument?

I also don't know how the advocate presented the case, only that he lost. As you'd be able to tell if you'd read (and not read into) my posts. Hence the 'In My Humble Opinion' abbreviation.

The Court of Appeal will test the law (if it gets that far) and decide to uphold or overturn decisions. Creating a precedent, in effect changing how the law is interpreted.

I'll say again, 'on face value' he looks as if he was trying to do the decent thing. IMHO this case should never have come to court. (maybe that was the public interest test behind the CPS's decision – using it as a test case)? That is all supposition though, I don't know all the facts of the case.

Comments on this story have been disabled for legal reasons

Is that normal for court reports? You can often see all sorts of comments on local news websites, with minimal moderation. Perhaps there is information that isn't allowed to be reported for some reason. I find myself in the 'there's more to the story' camp.

I am fairly certain that if he can demonstrate that he has, on the balance of probabilities that he had lawful authority or reasonable excuse for having the weapon, then this is a defence.

there is definitely more to this one than meets the eye.

Jackson – the court of appeal cannot overturn statute.

He broke the law – no interpretation possible as the law is clear.

I don't think that's right mildred.

He's under s.5 of the 1968 Act for a sawn-off (as indeed he would be for an RPG, intriguingly…), doesn't have a license for it and doesn't have the authority of the secretary of state.

5 Weapons subject to general prohibition

(1) A person commits an offence if, without the authority of the Secretary of State…he has in his possession…—

….

[(aba) any firearm which either has a barrel less than 30 centimetres in length or is less than 60 centimetres in length overall, other than an air weapon, . . ., a muzzle-loading gun or a firearm designed as signalling apparatus;]

I'm off my patch here, but I don't think (and his defence counsel clearly doesn't think) that there is a lawful excuse defence.

Jackson – the court of appeal cannot overturn statute.

Yes I know but they could rule that minimum sentence was disproportionate.
(if that is what he recieves) and set precedent. Law is always changing on this basis.

"he has had a very poor defence council" ….."I also don't know how the advocate presented the case, only that he lost." suggests you don't know what you are talking about .
The defence counsel asked the jury to ignore the law and return a perverse verdict the judge told them that they were obliged to find the defendant guilty if they belived the facts were as set out by the crown and agreed by the defence were true. How does the fact that the jury returned the only verdict available to them equip you to criticise the defence council when you conceed you don't know what was said?
the court of appeal could not use this case to set a precedent as such in this case their already is one in Rehman as i set out above.If the judge properly articulates his sentence do very little as the exceptional circumstances get out is effectively a judicial discression , as i understand it the judges error in Rehman was to say that the facts could not amount to exceptional circumstances or to fail to consider the point at all.
"Law is always changing on this basis." Satute Law is not and cannot be changed on this basis.
Big Dummy you are spot on there is no lawful excuse defence to section 5 fire arms there are a number of specific defences but they basicaly revolve around prior authority,not post event justification , which when you consider the weapons covered, appears fair, though a bit tough on this punter. I trust that in his case the judge will find the exceptional circumstances and gives him a conditional discharge.

There is more to this case than meets the eye. I wonder if it will get into the public domain when then sentence him or if he appeals? Mr Clarke's previous for example (which the CPS had when deciding to bring the case).

As already said if Honest Joe "found" a shotgun in his garden and wasn't daft he would call 999. He wouldn't call the Super and ask if he could pop in 😉

"Law is always changing on this basis." Satute Law is not and cannot be changed on this basis

Wrong! There are numerous examples of where the interpretation of statute is changed through precedent (granted the statute itself is not changed).

suggests you don't know what you are talking about .

Whatever, I think that on face value (as I don't know all the details) he has fallen foul of an anomaly of the law, he shouldn't be dealt with as a criminal. His defence councel failed to convince the jury. (maybe reflecting more details that we are not privy to)?