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Thursday, 19 November 2009

Paul Clarke: An Anatomy of an Injustice

When the story about the prosecution and likely sentencing of Paul Clarke for the possession of a shotgun emerged at the weekend, it prompted a Twitter frenzy and even became a "trending" topic (hashtag #PaulClarke).

Typical Tweets were to the effect of:

"WTF! Man facing five years for doing his civic duty" and

"Man arrested just for handing gun in at police station".

As a result of this interest, my Blogpost on the case, pointing out that there was something to be said for possession of a shotgun being unlawful, received over 11,000 hits in two days.

In my Blogpost I was careful to note that, in this particular case, bringing the prosecution and the mandatory minimum sentence may both be asses, even if the underlying law was sound.

As a follow-up to that Blogpost, and as an exercise in trying to show the value of legal blogging, I will now set out the fuller context to this prosecution. The following is based on original research and various interviews.

If you believe that this case is an injustice (which is my opinion), then this information will enable you to identify the stage or stages in the process where the injustice lies.

Is it the strict liability offence itself?

The mandatory minimum sentence of five years?

The arrest and charge at the Police Station?

The decision to prosecute by the Crown Prosecution Service?

The court hearing?

The jury's conviction?

You decide.

And, if you do not think it is an injustice, at least you may be better informed about how any injustice was avoided.


1. The Offence

Mr Clarke was charged with the offence under section 5(1)(aba) of the Firearms Act 1968. This provides that:

"A person commits an offence if, without the authority of the Defence Council..., he has in his possession, or purchases or acquires, or manufactures, sells or transfers...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."

This is a strict liability offence: the simple possession of such a weapon constitutes the crime.

Such a basic and general prohibition would appear to be sensible in any gun control regime (and I strongly favour gun control), but it does have very problematic implications.

One such implication was set put by my fellow skeptic, Mike Ward, who writes as Schroedinger99. In his excellent and thoughtful Blogpost on Paul Clarke, he sets out the following scenario:

"Suppose I found a loaded gun in a park frequented by children (though deserted at the time of my discovery) and did not have my mobile phone on me. What should I do? Leave it there? Hide it? Take it to the police and rely on the good will of the CPS?"

In this situation, which I will now call Schroedinger's Shotgun, there is no easy answer. Picking up and taking the gun to the Police would, in principle, incur criminal liability.

It may be that one would not be arrested, charged, or prosecuted; or it may be that one would be able perhaps to run (a rarely successful) defence of necessity.

The Good Samaritan with Schroedinger's Shotgun would be commiting a criminal act.

However, with strict liability offences, there should always be flexibility in respect of when prosecutions are bought and flexibility also in sentencing. It is by these means that a just legal system ensures that a strict liability offence does not lead to injustice.


2. The Punishment

There is intended to be no flexibility in the sentencing for those convicted of the section 5 offence.

Under section 51A(5)(a)(i) of the Firearms Act 1968, "'the required minimum term' means..in relation to England and Wales...(i)in the case of an offender who was aged 18 or over when he committed the offence, five years".

The only exception is provided for under section 51A(2):

"The court shall impose an appropriate custodial sentence (or order for detention) for a term of at least the required minimum term (with or without a fine) unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so."

The word "exceptional" ensures that the mere circumstances of the offence or the offender are not enough: in either case the circumstances must be exceptional.

This mandatory minimum sentence, however, was not always the case.

Mandatory minimum sentences for a range of firearms offences were introduced by the Criminal Justice Act 2003, one of the most notorious and illiberal statutes ever passed by Parliament. The director of the pressure group Liberty stated:

"In years to come, as more innocent people emerge after years in prison caused by these plans, we'll wonder how Parliament let this shameful attack on justice get into law".

The legislation relating to mandatory minimum sentences for a range of firearms offences were not even properly scrutinised by Parliament. They were introduced at the very late (and post committee) "Report stage".

Introducing the raft of late amendments, the Lord Chancellor stated:

"Clauses 271 to 276 introduce a mandatory minimum sentence for firearms offences. This is a clear demonstration of the Government's commitment both to deter criminals from using firearms and to ensure that they receive an appropriately tough custodial sentence on conviction."

These were warmly supported by Labour peer Lord Harris of Harringey

"Clause 271 sets out minimum sentences for unauthorised use of firearms which are welcome. I sincerely hope that they will act as a deterrent to the routine carrying of firearms as a fashion accessory, the risk of which is that a minor dispute or scuffle can quickly escalate into a serious incident in which a firearm is used.

In a recent case an individual was shot by someone with whom he had had a minor dispute on a dance floor. The bullet killed the first victim, and, having passed through him, travelled through a partition wall and killed a second unrelated victim. If this clause proves an effective deterrent in reducing the number of people carrying firearms in public, such incidents will become less likely and public safety will be improved and lives saved."


In my view, a more sensible position was stated by the Liberal Democrat peer, Lord Dholakia

"Equally objectionable are the provisions for minimum sentences, both those relating to firearms offences in Clauses 271 to 276 and those relating to life sentence tariffs in Schedule 17. Minimum sentences are fundamentally wrong because they prevent judges from doing justice to offenders by tailoring the sentence to the individual circumstances of the case. They are wrong because they deter guilty pleas, unnecessarily put witnesses through the trauma of giving evidence and, because of the difficulties witnesses face, sometimes produce wrongful acquittals of offenders. In those cases the offenders will walk free, although they would have pleaded guilty if they had not been confronted with a draconian minimum sentence."

(The Lords debate is also notable for the well-informed reservations of two Law Lords - Woolf and Ackner - at the restrictions on sentencing discretion throughout the bill.)

The distinguished Joint Lords and Commons Select Committee on Human Rights then issued a damning report on the Criminal Justice Act 2003, including the provisions on mandatory minimum sentences for firearms. The report stated:

"We consider that doubts about the ability of courts to take account of a defendant’s personal circumstances when sentencing mean that there is a risk of a violation of ECHR Articles 3 and 6.1 in individual cases."

(Article 3 covers punishments; Article 6.1 covers fair trials.)

The Committee's Report further stated:

This [provision] would require a court to sentence a person convicted of certain offences under section 5 of that Act to a minimum term of imprisonment of five years if the defendant was aged 18 or over at the time of the offence, and three years if he was aged 16 or 17 at that time.

If this prevents a court from having regard to the circumstances of the particular
offence and the individual offender when passing sentence, it could deprive him or her of a fair hearing, violating ECHR Article 6.1, and fail to treat him with appropriate respect for his or her humanity...

[...]

In the case of this clause, however, new section 51A(2) of the 1968 Act would allow the court not to sentence to the statutory minimum term if it is ‘of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so.’ In relation to mandatory life sentences for repeat offenders, the Court of Appeal (Criminal Division) has discharged its responsibility under section 3 of the Human Rights Act 1998 to give a somewhat extended meaning to the term ‘exceptional circumstances’justifying not imposing the life sentence.

[...]

However, it is not clear what would count as an exceptional circumstances in the context of a variable sentence with a minimum term for an offence involving firearms, rather than a mandatory life sentence."


I have not been able to track the government's response to this.

But, in any case, the Criminal Justice Act 2003, with its late, unscrutinised, and illiberal amendments to the Firearms Act 1968, duly took full legal effect.


3. Paul Clarke enters the Police Station

It was with this statutory regime in place, of which he was clearly unaware, that Mr Clarke took a shotgun to the Police Station.

Mr Clarke is perhaps not necessarily the most sympathetic character, though the test of a just legal system is how such figures are treated.

He had previously overturned on appeal a conviction regarding an attack on a DVLA inspector with a broomhandle. The news report of that case does suggest a certain implausibility to the account of Mr Clarke, but nevertheless his conviction was quashed.

His solicitor has also volunteered in a radio interview that there was a previous incident involving a cattle prod. There may be other incidents.

It is clear that Mr Clarke and the Police knew each other well. I understand that Mr Clarke may also be currently suing the Police in a civil action.

It is also clear that Mr Clarke is a forthcoming member of his local community. A local paper report carries the following interview:

"Paul Clarke, 26, of Nailsworth Crescent, Merstham, said: "Every area has a posher and a poorer end of town. If Merstham was in Lambeth, it would be the posh bit where the councillors live.

"I'd much prefer to live in Merstham to the centre of Reigate. At least we know our neighbours, and can knock on their door to borrow teabags.

"We may not all have a lot of money, but we have a lot more fun and people are friendlier.""


Mr Clarke telephoned the Police Station and asks for (and is put through to) Chief Superintendent Adrian Harper.

Perhaps unwisely for someone about to appear with a shotgun and ammunition, Mr Clarke tells Chief Superintendent Harper:

"I’ve got something to give you”.

(This does rather evoke the similarly ambiguous "let them have it" of Derek Bentley.)

When Mr Clarke does turn up at the Police Station he is arrested and placed in the cells.


4. Mr Clarke's version of events

Mr Clarke gave a statement to the Police. In this statement he says he found the shotgun and ammunition discarded in his garden two days previously and that he was handing the shotgun to the Police as his civic duty.

(This statement was later read out in court.)

Regardless of whether this story is plausible, it is important to note that this is the only version of events present in the now-initiated process. I understand that there has not been any evidence controverting this version considered at any stage.

Although this version has not been tested by cross-examination, it has not been contradicted. Mr Clarke's testimony on this is the sole basis for the prosecution brought against him.


5. The Guidance for Police in such a situation

What should the Police have done?

In 2002 (and thereby before the Criminal Justice Act 2003), the Home Office published formal guidance to all Police Forces on how to deal with firearms offences.

This guidance is still available on the Home Office site and presumably is still in force.

Chapter 25.5 of this guidance provides sensible advice for Police Officers when someone turns up at a Police Station to surrender an illegal firearm.

"Anyone surrendering an illegally held firearm should be questioned discreetly with a view to establishing its history but, unless circumstances exist to give serious cause for concern as to its provenance (for example, if it appears to have been stolen), the person handing it in should not be pressed. The emphasis should be on creating an environment in which people hand in illegally held firearms."

I asked Surrey Police whether they could confirm whether there had been any regard to this guidance in arresting and charging Mr Clarke. Their press office provided me with the following statement:

"A 27-year-old man, charged with possession of a prohibited weapon, has been found guilty at Guildford Crown Court and is awaiting sentence. It is inappropriate for us to comment further at this stage as we do not wish to influence sentencing.

Anyone who finds a sawn-off shotgun or a handgun should treat it as suspicious and as a potential crime scene, and report it to police immediately via the 999 system. A crime may have occurred and forensic opportunities need to be preserved."


So it is still not known whether the Surrey Police had any regard to this important operational guidance when they decided to arrest Mr Clarke.

But, as we will now see, the Crown Prosecution Service is commendably more willing to comment, notwithstanding the issue of sentencing.


6. The decision to prosecute

It is for the Crown Prosecution Service to decide whether to prosecute. Such a decision should always be taken on the basis of the public interest.

As the version of the facts provided by Mr Clarke is the only one at play here, the decision that the public interest required a prosecution seems in need of an explanation.

This is particularly so when the combination of a strict liability offence and a minimum custodial sentence means that the decision to prosecute is in effect a decision to impose criminal liability and at least a five year sentence.

I now set out in full, so you can form your own view, the email exchange I had with the helpful press office at the Crown Prosecution Service.


JoK Question:
Please confirm whether the decision to prosecute was taken personally by the Chief Crown Prosecutor for Surrey.

CPS Answer:
“A District Crown Advocate in the Crown Prosecution Service in Surrey authorised Surrey Police to charge Paul Clarke. Each case is kept under constant review and following a further review of the case Portia Ragnauth, Chief Crown Prosecutor for Surrey, decided that it was still in the public interest to bring the case to court.”


JoK Question:
Please tell me what you can about why the CPS decided to prosecute this case, especially as (a) the facts before the court (and not it seems controverted) would indicate such a prosecution was not in the public interest, and (b) the Home Office's relevant guidance states:
"Anyone surrendering an illegally held firearm should be questioned discreetly with a view to establishing its history but, unless circumstances exist to give serious cause for concern as to its provenance (for example, if it appears to have been stolen), the person handing it in should not be pressed. The emphasis should be on creating an environment in which people hand in illegally held firearms"

CPS Answer:
“Under the Code for Crown Prosecutors the CPS considered it was in the public interest to prosecute Mr Clarke as he was in possession of a sawn off shot gun. He had come into possession of the shot gun and two shotgun cartridges some days earlier and had not immediately contacted the police to make them aware of its existence. He was given the opportunity by the police to explain the full circumstances as to how he was in possession of the lethal weapon but his explanation lacked credibility. “


JoK Question:
Can you expressly confirm whether the CPS had any regard to the relevant Home Office guidance in their decision-making, in particular chapter 25.

CPS Answer:
"This Home Office guidance as indicated is operational guidance addressed to the police and is not guidance to CPS prosecutors on how to deal with cases involving firearms offences. Crown Prosecutors apply the Code for Code Prosecutors when considering whether or not they should prosecute.

When making our decision we took into account that:
It’s a strict liability offence which means there is no defence to any possession.
It is a sawn off shot gun which is an aggravating feature. It carries a minimum of 5years imprisonment-mandatory-unless there are exceptional reasons. Our charging is quite clear because of the serious nature that these weapons can inflict, statute was passed to ensure that the possession reflected the serious nature hence 5 years imprisonment."



JoK Question:
On what basis was it decided that Mr Clarke's account lacked credibility?

CPS Answer:
"Paul Clarke claimed that he found the shot gun in his garden and decided to bring it to the police station. Evidence showed that he was in possession of the gun and the cartridges for some days earlier and that at that time he did not try to contact the police, for them to collect the weapon. He could not explain why he waited some days before bringing the gun to the police station and why he did not contacted the police for them to come and collect the gun.

The jury heard both the defence and prosecution case and reached the verdict that Paul Clarke was guilty of possession of a firearm."



Jok Question:
Is it correct to say that the CPS did not have regard to that guidance? I should be most grateful for a simple yes/no.

CPS Answer:
"The CPS did not have regard to the Home Office guidance as I explained it is guidance to police officers."


Whatever the merits of the decision by the CPS to prosecute Mr Clarke, I think the press office at the CPS should be congratulated for providing these full answers in a matter of current controversy.

(The CPS's own guidance on when to prosecute is here.)

However, the worrying aspect of this is that the decision to prosecute was based on what appears to be a subjective reaction to the only evidence available: Mr Clarke's own version of events.


7. The Court Hearing

The court case did not last long. It started late one afternoon, and the verdict was given by the following lunchtime.

The prosecution called only one witness, the police officer (a Detective Sergeant) who made the arrest.

Indeed, all the prosecution had to show was possession, and the arresting officer did indeed see Mr Clarke with the shotgun at the Police Station.

Chief Superintendant Harper was not called, and it is indeed in the public domain that he is currently suspended from duty in respect of an unrelated matter.

The only other prosecution evidence were technical expert reports regarding the shotgun.

The shotgun was produced in court by the arresting officer, and it was shown to the jury by the court clerk. One observer recalls wondering if this made the court clerk also guilty of the possession offence for those moments.

The shotgun also looked clean and not in the state of a weapon found in a garden. It is not known whether this was because it had been cleaned after its receipt by the Police.

Mr Clarke did not give oral evidence. He was fully entitled to do this, and it is the right of every defendant to force the prosecution to prove its case.

He pleaded not guilty, probably in the hope that the jury would not convict.

There was also an application in open court, when the jury was not present, to strike the case out as an abuse of process, but this was refused.

The judge summed up by stating this was an unusual case and that, as it was a strict liability, there could be no defence. However, he was careful not to direct the jury to convict: it was a matter for them.

The jury took twenty minutes to return a guilty verdict.


7. What happens next?

The case has not finished.

The court is still to pass sentence.

It may well be that the judge will find that there are exceptional circumstances to warrant not applying the mandatory minimum sentence.

This would be done either on the basis of Mr Clarke's statement (on which of course depended the CPS's decision to prosecute) or by Mr Clarke being orally examined (subject to Mr Clarke's consent) in court in a Newton Hearing.

(Newton Hearings are when there is oral examination not to establish liability but to establish the gravity of an offence for the purpose of sentencing.)

This case could still thereby conclude by Mr Clarke receiving an absolute or conditional discharge, or a suspended sentence.

However, it is still possible that there will be a custodial sentence, even if for lesser a period than five years.

Whatever the outcome, any injustice suffered by Paul Clarke will be the result of a strict liability offence, a misconceived and illiberal mandatory sentencing regime, the decisions to arrest and then charge, the decision to prosecute, the decision to not strike the case out, and the decision of the jury.

And at no point so far has Mr Clarke's version of the facts been contested.




Acknowledgments

I am deeply grateful to the excellent Holly Thompson, the journalist who originally broke the story at the Surrey Mirror for her generosity in sharing her knowledge of the case. She attended the court for the hearing and kept a detailed shorthand note. For the way she followed and then promoted this case, she is a credit to journalism.

I am also very grateful to Lionel Blackman, solicitor for Paul Clarke, for a lengthy interview which provided a great deal of background information on the case, especially on the legal aspects.

Many thanks are due to the patient and helpful press offices of both Surrey Police and the Crown Prosecution Service for dealing with my queries.

And, er, "much kudos" to all the Twitterers and Bloggers who also collected information on the case and provided insightful analysis. In particular: the doyen of Legal Bloggers Charon QC, who encouraged me to do this as an exercise in showing the value of legal blogging; and also Schroedinger99, Constantly Furious, and Niaccurshi.




Copyright 2009, Allen Green. Moral rights asserted.


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69 comments:

paulathomas said...

A deeply disappointing and partisan post. Guns are possessed for one reason and on reason only - to kill things. Mr Clarke carried this lethal weapon through Guildford with ammo. through Guildford, which is not so far from Hungerford, against all sense posing a considerable and mortal threat to the public. he deserves to be charged.

As for the loss of judgly power in sentencing - judges have been to lenient with, inter alia, members of the armed forces in the past, one remembers the soldier given a discharge on a rape charge because it would interfere with hid career and have only themselves to blame.

Some of us do not wish to live in a society in which possession of firearms is the norm.

William Satire (Jr.) said...

An excellent post, as ever.

If anyone is aware of Gödel's incompleteness theorems in mathematics, will know that in any sufficiently strong formal system, you can only prove some arithmetic thruths, but not all of them.

I'd say that law must be like this. You can define as many laws as you like, but you are only loosely defining a boundry that is actually fractal in nature - with 'right' on one side and 'wrong' on the other. It would therefore be impossible for there not to be miscarriages of justice, no matter if with the best intentions and no matter how many sub-clauses and exceptions one may make.

Tracy King said...

I don't think the hypothetical playground scenario adds much to the argument, he didn't find the gun in a playground, he found it on his own property. Your thoughts if you find a gun in your garden are VERY different to your thoughts if you find a gun in a playground, I expect, and I don't believe we could expect the same response from the police or the CPS in the latter case.

I find it more useful to compare Paul's actions to other hypothetical crimes such as "what if you found a stolen car on your drive? Would you drive it to the police station?". Obviously you wouldn't. In fact, I'd say "obviously" you wouldn't take a gun there either, particularly after keeping it for a few days, and you certainly wouldn't call the police with a vague and veiled hint that something is going to happen. I think I'd have done exactly the same as the police in this situation. There's no doubt to me that he was acting about as shiftily as possible, added to which he had a gun and live ammo. I'd arrest him very quickly.

The issue, as you rightly point out, is that of the CPS deciding that prosecution is in the public interest, and the minimum sentence issue, but as I asked on Twitter, other than in Paul Clarke's case, why is a mandatory min 5 year sentence for gun possession wrong? How often does someone possess a gun (in a country of very strict gun laws) illegally without it being appropriate to send them to jail for a long time? Isn't that why that min sentence exists in the first place?

If the objective is to highlight the unfairness of the min sentence, then I'd want more and better examples of why it's unfair than this one.

Bar Room Brawl said...

When twitter went mental about this I probably had the same view as everyone else – a miscarriage of justice. But, as with many such stories, when more of the facts are known the true picture is somewhat different.

Maybe I’m being cynical because I’m a lawyer (although I both prosecute and defend) but …

A man with form for possessing offensive weapons finds a shotgun … in his own back garden! He then does nothing about it for a number of days and when he finally phones the police he fails to tell them he’s bringing in a firearm.

You say that “at no point so far has Mr Clarke's version of the facts been contested”
That may be true, but the CPS and police are entitled to take the view that his account simply lacks credibility. They do not have to contest his account because it is an offence of strict liability. Based on the fact that Parliament thought this was a proportionate response to the increasing use of firearm, the CPS can properly take the view that it’s in the public interest to prosecute and leave it to the judge to determine whether the five year minimum term is merited – which I very much doubt he will receive.

If he wanted to put forward his account he could have given evidence at trial and subjected himself to cross-examination. He chose not to do that (as is his right), but as you probably know a judge can direct a jury that they can hold a defendant’s failure to give evidence against him (an adverse inference). If I had been defending Mr Clarke for an offence of strict liability, but wanted to appeal to the common sense of the jury to secure an acquittal, the first thing I would do would be to put my client on the stand so he could explain his predicament to the jury. It’s very curious that he chose not to give evidence.

There are two reasonable inferences one can draw from the facts of this case:


1. Paul Clarke’s ‘involvement’ (I’m being generous) with the shotgun was much more than he admitted and he simply decided he wanted to get rid of the gun.

2. He didn’t give evidence at trial as he knew his account wouldn’t hold up to any scrutiny (i.e. Why didn’t you phone the police straight away? Where was the gun for the last two days?) If disbelieved at trial by the judge he would have put at risk being able to appeal to exceptional circumstances for not getting the minimum sentence based on his account to the police.

Nevertheless, very good article and thanks for your reporting on this.

Steve Rolles said...

Bravo - excellent discussion of the issues.

Similar case have taken place when people have found drugs in playgrounds and taken them to the police. You might find some interesting parallels although drug possession is not, I believe, a strict liability offense. Im told people have also tried the 'I found it and im on my way too hand it in' excuse when arrested for drug possession.

Pam Nash said...

Excellent, detailed account of the events as known.

With regards to the clean state of the gun, and not knowing whether it had been cleaned by the police. It would be highly unusual for the police to have cleaned it, the only action they may have taken, if applicable, would been to have removed any live ammunition, thus making it 'safe' to handle in court; although I understand, from various reports, that there was no claim, in this case, that it WAS loaded. Exhibits are usually produced 'as was', as the state of the exhibit may prove to have implications in court. The police property system is rigorous and designed to ensure this, with anyone gaining access to the exhibit in the secure property store having to sign for it, to ensure integrity in the chain of evidence. Did Mr Clarke's solicitor not query this?

The only other observation I will make is that, if I had been Mr Clarke, I would have chosen to give oral evidence. It was, of course, his right not to have done so and no conclusions should be drawn from his choice.

I await the sentencing with great interest.

Lee Griffin said...

Great analysis of the facts, and it does actually at least seem like it wasn't as cut and dry as the newspaper report made it out.

I think I agree, it is an injustice, however in your questioning of the CPS I notice you didn't refer to their own advice (available on their website) that states that they should pursue a conviction even if a person is only carrying a weapon with no criminal intent? the CPS is quite right that the Home Office guidance is for police (and they certainly seem to be completely unable to justify their arrest), and in this situation it would seem the CPS did actually act with some level of integrity to the guidance available.

Through all this I have found myself struggling with the two sides of the argument, certainly surrounding strict liability offences in this area. Perhaps someone here can help flesh out my views; however are there not issues of practicality when it comes to defences on charges that are approached with a "guilty unless reasonable excuse" charge? How much does one man's claim that "I was just bringing it in" have weight.

I guess what I'm asking is say Paul did have other contact with the weapon, that his original purpose for it was criminal...how much does him saying "Sorry, I shouldn't have kept hold of it or brought it in, but I just wanted to get it off the streets" actually defend him in the eyes of a court? When approaching it from an "innocent until proven guilty" ideal, how can the CPS actually get a guilty verdict on actual criminals if it boils down to their word against the defendant when he says he was just bringing the gun in to police?

It is very easy to sit here and say that because of this case the entire law is an ass, but to me it is an extremely complex question as to how to tackle firearm possession while at the same time ensuring that the law doesn't mean conscientious members of the public get locked up for good deeds, nor that criminals walk free.

Like the others interested here, I'll be awaiting the sentencing, it will be the difference between a minor injustice relating to an inflexible law and a major injustice relating to human elements being unable to, even through a trial process, come to a justified and fair outcome.

Richard said...

I have to take issue with paulathomas' comment that "Guns are possessed for one reason and on reason only - to kill things". I used to go clay pigeon shooting at a club which owned many shotguns. None of them had ever been used for killing anything (unless you think clay pigeons are alive, I suppose).

Thanks for posting your questions and the responses of the police and CPS, interesting reading.

fat_kev said...

Thank you for a very thought-provoking and informative article.

Until this case I'd not heard of the term, or indeed the concept of, a strict-liability offence. What intrigues me is that without any comprehension for the existence of such an offence I could unwittingly take actions for which I have no defence for in court.

Granted, I am well aware that it is illegal to possess firearms in this country, but am I expected to know that there are NO exceptions to how this came about? Whilst Paul Clarke's actions appear questionable, how would they sound if it could be proven whether or not he was aware of the strict-liability offence.

If Mr Clarke was fully aware of the strict-liability offence then it would be fair to conclude his actions were unlawful and that the charge is just. However, without any knowledge of the no-defence crime it could be argued that he was unaware he was doing anything wrong.

For strict-liability to work, surely we need 100% awareness of the laws for which it applies?

Rick said...

The whole case hinges on whether the police, CPS and jury believed Mr Clarke. But surely any statement in court must be taken at face value? If there is no other evidence, and no cross-examination, then is that not an indication that there is no question about what's been said?

If the prosecution really didn't believe Mr Clarke, they should have demonstrated why. After all the jury might not have picked up whatever nuance that police did and have found him not guilty, which the police didn't want. In effect, not bothering to question the facts risks losing the case.

It seems a bit worrying that he's convicted on things unsaid. If I were on a jury and the prosecution failed to
questiong a statement, I would assume the prosecution accepted it as true.

Twaza said...

Thanks Jack

A clear and concise account of a fascinating case that shows us how elusive truth and justice are, despite our best intentions, and how dangerous preconceptions can be.

Lee Griffin said...

Rick: The problem comes in offences such as mere possession. If someone steals something the police can't bring the case unless they have evidence to prove guilt. The person can "say" that they didn't steal it, but in reality how many juries will take that person's word when the police present that the stolen item was in their possession and that it wasn't theirs to have?

With gun possession there is nothing that the police can use in a mere possession charge. The crime in itself is possession, and something as simple as a person's word, if taken as the truth, is the only "evidence" other than possession in the room.

How do you convict anyone who had hidden intent, but that you can only charge with possession, if the only argument is a guy saying he was only handing a gun in versus the police saying they don't think it was that innocent?

Mike said...

"...has a barrel less than 30 centimetres in length or is less than 60 centimetres in length overall,"

Richard said:
"I used to go clay pigeon shooting at a club which owned many shotguns."

But I'm betting you didn't use a sawn-off shotgun.

JOK, should you not replace "shotgun" with "sawn-off shotgun" above?

Michael Kingsford Gray said...

paulathomas

...Guns are possessed for one reason and on reason only - to kill things


Range Target shooters may have a valid 'quarrel' with that provably incorrect blanket assertion.

Andy Wilson said...

Thanks for the effort in making this post. Very thoughtful comments too.

I am wondering what I would have done in a similar case, assuming his account to be true. I wouldn't have kept the gun for a couple of days, that's for sure, but this guy doesn't sound like he has a conventional outlook. There is every chance I would stick it in the car and take it to the police station.

Because this is a strict liability offence, it is effectively the police who have imposed the 5 year sentence. I am sure they knew this when charging him so it's hard for me to understand why the guidance wasn't (if indeed this is the case) followed.

It's the first time I've really taken on board the need for Judges to have their own freedom in sentencing. I'll certainly consider this case when this subject arises in future.

I would have been a lot more comfortable if his defence had been tested.

Thanks for taking the trouble to post.

Andy

Merseyside Skeptics Society
10:23

rob said...

Thank you, an excellently lucid post as always. I'd like to pose a couple of related questions, although perhaps not relevant to this case.

1. At what point could I be considered to be 'in possession'? For example, is it from the moment that the gun enters my property? Suppose I have an untidy garden and see a black dustbin bag one morning but can't be botherted to get rid of it; and if subsequently it is discovered to contain a gun, would I have been 'in possession' without even being aware of it?

2. Is the (hypothetical) example of Schroedinger's shotgun, a 'no-win' situation? i.e. picking up the gun would lead to prosecution because of possession, but could not picking it up lead to a charge of criminal negligence (or similar)?

Lee Griffin said...

There was a case recently of the police finding a gun wrapped up in bubblewrap in a man's shed. They arrested him (think it was part of a wider arrest) but CPS chose not to pursue charges on the possession.

The question here is whether this was different because the gun may not have been prohibited under section 5 of the firearms act, or because there was enough other charges to be dealing with to secure a conviction.

In theory you're in possession only if you know you're in possession, as far as I know, the question comes as to how you prove that deficit in knowledge.

Peter in Dundee said...

I frequently go for long runs in rural areas early on a Sunday morning, in advance of and well beyond the range of dog walkers. So it is not beyond the possibility that I might find myself in the Schrodinger's Shotgun situation especially since I do not always carry a mobile phone.

In fact a couple of months ago I was a mere few minutes too early to be the person who found a man dead on a local beach. He must have still been alive on not arrived yet when I passed because there was no body there when I went past.

The probability of this increases since many of my runs go on a cycle path right beside a military firing range. It is not unusual for my runs to be punctuated by the crump of mortar fire or the rattattatat of machine gun fire. Though usually I am some distance from the range by the time they start up. In fact when the wind is from the east we can hear them from the house.

ivan said...

This is not the first time I have heard of the CPS just leaving a defendant's claim to sit there expecting the jury to disbelieve it, without actually presenting any evidence against it, even though it seems like they could have done. They certainly used this tactic when a relative of mine sat on a jury. He was rather annoyed that the CPS presented no evidence to debunk the defendant's claim, when it seemed obvious to him that a bit of investigation should have been able to debunk it utterly. But still found the fellow guilty, but wondering exactly what level of doubt was "beyond reasonable doubt".

I tend to think it goes back to the CPS's objectives of putting cases in front of a jury if they think the person will be found guilty. "Put it in front of a jury and see if they find him guilty" really isn't good enough, when we know that juries can be fooled by certain types of evidence. "The jury won't believe his defence" isn't really good enough if actually we can investigate to shed further light on the matter. Many unlikely things turn out to be true. Juries are often impressed by circumstantial evidence, and completely bamboozled by statistical evidence (as indeed are judges, and even scientists - think May's false "two cot deaths must be murder" evidence). The CPS really ought to have a duty to make themselves reasonable certain that they are not putting innocent people up with incomplete evidence which they know from experience is likely to result in a guilty verdict.

Dave Gorman said...

The more I think about this the more I think the problem is all to do with it being a strict liability offence.

I've no doubt that Paul Clarke did something wrong - very wrong - by not calling the police immediately to say he'd found a gun. Had he been stopped on his way to the station he'd have been bang to rights. Who would have believed an "I was on my way to hand it in" defence seeing as he'd told nobody it existed.

If his story is correct then he might be an idiot and he might deserve punishment but there's no way it sounds like five years worth of wrong.

The problem is that his story hasn't been tested. Like many people I find his tale dubious. I would be suspicious that his involvement with the weapon (or with others who have possessed the weapon) is greater than he is letting on. But that's only suspicion. Our legal system generally requires more than that. Something I am sure all the people-whose-eyes-are-too-close-together are very glad of.

But because it's a strict liability offence the prosecution have no incentive to test his story and find out what really went on.

It's reasonable for them to ask him where he found the gun and it seems entirely reasonable that on hearing his version of events someone decided it lacked credibility and so decided to take it further.

What doesn't seem reasonable is that from that point on it's a bit of a done deal. Was he in possession? Yes. Five years. (We'll see if that happens.)

Bad Scenario 1: Paul Clarke's story is 100% correct. He's an idiot. He's done something stupid. He gets a five year sentence for his stupidity.

Bad Scenario 2: Paul Clarke's involvement with the gun was more sinister than his story suggests. But this is not proved because the strict-liability nature of the case gives nobody any incentive to do so. The judge decides that there are exceptional circumstances in this case and does not impose the minimum sentence. A violent criminal goes free.

Of course both these bad scenarios have flip sides where the man gets the punishment he deserves. But I'd be more comfortable if the burden of proof had been greater.

As it stands a man is being found guilty because he wasn't believed... but nobody has had to actually prove his dishonesty.

Wigarse said...

One very important point here seems to be that he kept the gun for a few days before handing it in. If you take the walk to the police station out of the equation he was still, by his own admission, in possession for quite some time. It begins to seem more and more as though this is the correct verdict.

That said, your argument against strict liability is very compelling. I think, even if the verdict is right, strict liability means it is still an injustice.

The Heresiarch said...

The big issue for me which you highlight here is that the police and CPS are working to different - and possibly incompatible - guidelines.

I wonder if there are any other examples of this. I suspect there are many. If so Paul Clarke - and guns generally - might be the tip of a very dangerous iceberg.

Pam Nash said...

Having read the comments posted after I posted mine, a further thought.

As I said in my original post, Paul Clarke is entitled to choose, as he did, not to give evidence in person. But he must then accept that, having been denied the chance to hear his verbal answers to cross-examination, which is when (as anyone familiar with court proceedings will attest to) the real meat of cases usually emerges, the judge and jury will then have to rely solely on the prosecution case and the defendant's written statement.

If I knew, that although technically guilty, I was morally innocent and facing a 5 year sentence, believe me when I tell you that I would want my say in court, confident that I wouldn't be tripped up in cross-examination.

John Self said...

I fall with those who think Clarke's story lacks credibility, and based on the information above, I don't have any difficulty with either the CPS's decision to prosecute, or the jury's decision to convict.

"Mr Clarke did not give oral evidence. He was fully entitled to do this, and it is the right of every defendant to force the prosecution to prove its case."

This is correct. However, as any lawyer knows, the defendant's case is at its strongest at the end of the prosecution's evidence, and if the defendant gives no evidence himself, there is always good reason for this. Even without a formal direction from the judge to make an adverse inference, most jurors will consider his failure to open himself to cross-examination to be suspicious and will take that into account in their decision.

I also have no quarrel in this case with the sentencing options. As Jack points out, S51A of the Firearms Act 1968 makes it clear that if there are "exceptional circumstances", the court can impose a sentence lower than the 5 year minimum.

The CPS's sentencing guidelines for S5 offences reveal at least one case in the guidelines, post-2003 minimum term, which had a lower sentence imposed (although because there were three offences and the sentences ran consecutively, the total period of imprisonment was longer).

The CPS page also gives the citations for a guideline case on what constitutes "exceptional circumstances" not to receive the minimum sentence, though I don't have access to a law library to read the reports:

2005 WL 936844 (CA (Crim Div)), [2006] 1 Cr. App. R. (S.) 7, [2005] EWCA Crim 890

One would have thought that, if Mr Clarke really was "doing his civic duty", that there could hardly be a clearer example of exceptional circumstances. We shall see.

Thomas said...

This all seems to be about the loss of common sense. In addition most of those concerned with the accuracy of the story miss the flip side that is worrying.

First of all common sense - this law is an amended law based on trying to cover off lots of probables but making the law complex and lacking in the ability to demonstrate common sense. This makes it inherently 'stupid' as defined by Andy Green's book on Stupidity. The human common sense of dealing with the story (if accurate) has been removed. It matters not what this chap has or hasn't done, as it highlights a process that finds ANYONE guilty without a by or leave.

The CPS comment shows this stupid process up as they are only looks at 'rules' and at not common sense. If it falls outside the checklist, tough.

We are moving to a world where more legislation, guidance, nanny state intervention is the answer. Sometimes less is more. Clarity is not not made by making complex rules but by thinking what is the purpose of the law and writing it in such a way.

The SECOND point is about the accuracy of the report. Yes, the guy seems to have previous and may be not the nicest bloke, but that does not make him remotely guilty especially in this case.

He has previous with the police officers. How do we know the police, narked at his acquittal, didn't see an opportunity to 'fit him up' and that the CPS were complicit. I'm not saying that happened, but it is as equally plausible as there being something 'not right' with Mr Clarke's version of events.


I've been involved in case where the police have used there powers immorally and abusively so that a senior police officer could take possession of a piece of common ground from someone else. He's since been promoted at least twice.

The police know the law and they will have know it was a high chance of them being locked up for 5 year. If it was thrown out, they have the defence of getting guns of the street and zero tolerance etc.

Just remember, it could be you. The law isn't there to find 'bad people' guilty of crimes they didn't commit - and if that is the case, it could be you.

Thomas said...

This all seems to be about the loss of common sense. In addition most of those concerned with the accuracy of the story miss the flip side that is worrying.

First of all common sense - this law is an amended law based on trying to cover off lots of probables but making the law complex and lacking in the ability to demonstrate common sense. This makes it inherently 'stupid' as defined by Andy Green's book on Stupidity. The human common sense of dealing with the story (if accurate) has been removed. It matters not what this chap has or hasn't done, as it highlights a process that finds ANYONE guilty without a by or leave.

The CPS comment shows this stupid process up as they are only looks at 'rules' and at not common sense. If it falls outside the checklist, tough.

We are moving to a world where more legislation, guidance, nanny state intervention is the answer. Sometimes less is more. Clarity is not not made by making complex rules but by thinking what is the purpose of the law and writing it in such a way.

The SECOND point is about the accuracy of the report. Yes, the guy seems to have previous and may be not the nicest bloke, but that does not make him remotely guilty especially in this case.

He has previous with the police officers. How do we know the police, narked at his acquittal, didn't see an opportunity to 'fit him up' and that the CPS were complicit. I'm not saying that happened, but it is as equally plausible as there being something 'not right' with Mr Clarke's version of events.


I've been involved in case where the police have used there powers immorally and abusively so that a senior police officer could take possession of a piece of common ground from someone else. He's since been promoted at least twice.

The police know the law and they will have know it was a high chance of them being locked up for 5 year. If it was thrown out, they have the defence of getting guns of the street and zero tolerance etc.

Just remember, it could be you. The law isn't there to find 'bad people' guilty of crimes they didn't commit - and if that is the case, it could be you.

Vera said...

It must be understood though that the CPS act on the evidence provided by the police. The police can, and do, mislead the CPS in order to get a charge.

Steve Jones said...

It is commendable that the CPS are willing to state their reasons (although, I think that should be a requirement - justice has to be seen etc.). However, I'm somewhat concerned over their logic regarding the nature of the weapon.

When making our decision we took into account that:
It’s a strict liability offence which means there is no defence to any possession.

It is a sawn off shot gun which is an aggravating feature.


Now it is no doubt true, that a sawn-off shotgun is specifically produced as an anti-personnel weapon, and if you were found to be knowingly in possession of one, then that is a very good indication of evil intent. In contrast, an ordinary shotgun has other uses, and it's unlicensed possession, whilst being illegal, is not an aggravating factor.

However, this wasn't somebody who was found to be in possession; it was a somewhat bizarre attempt to hand it in, when it was claimed to have been encountered accidentally. Now that particular claim wasn't tested in court, and that's a shame. But it doesn't seem to be the culpability of the individual is any more if they hand in a sawn-off shotgun than an ordinary one. If they are caught in possession of it, that's a different thing altogether.

Unfortunately, due to the brevity of the case, and the lack of cross-examination, there are just far too many loose ends here. However, one thing you can guarantee - anybody who does come across a weapon is going to be far less likely to hand it in. If rummaging around in the attic of your recently dead uncle, you find an old shotgun, or a WWII revolver, then how many of those are just going to get dumped? Now it doesn't much matter if the authorities say the CPS and police will take circumstances into account - stories like this are going to cause many people to take the "safe" option.

it would be interesting to know how many firearms are handed in every year, and if this number changes following this case.

Steff said...

@paulathomas
"Guns are possessed for one reason and one reason only - to kill things."

News to target and clay pigeon shooters. Have a think before opening your mouth again. HTH, HAND.

@Dave Gorman

I've very little to add to what you said beyond agreement, but I do think in the depths of discussion a pretty key point gets slightly obscured, which is this:

Whether Clarke is or isn't a Bad Man, he has suffered worse consequences through handing in an illegal weapon than he would have had he simply kept it.

Irrespective of detailed points of law or Clarke's character, this is NUTS. An active inducement to non-cooperation with the police.

John Self said...

I may be misinterpreting here, but I get the impression that when people say that Clarke's account wasn't tested, or comment on the lack of cross-examination, they are suggesting that this adds to the culpability of the CPS/police in this case. But the only person to blame for Clarke's account not being tested is Clarke. It looks as though the jury took the view that that which can be asserted without evidence, can be dismissed without evidence.

Re Steve Jones' point about the likely outcome for people now finding old WWII revolvers etc. Who knows? But weapons like that are not governed by S5 so the minimum term wouldn't apply. They are governed by S1 and the CPS sentencing guideline cases for S1 show that these circumstances would be unlikely to result in a severe sentence.

Steff said...

Last time I checked, a revolver in a non-obsolete calibre (including WW1-era .455) was about as solidly S5 as it's possible to get.

Dave Gorman said...

Steff wrote:"...but I do think in the depths of discussion a pretty key point gets slightly obscured, which is this:

Whether Clarke is or isn't a Bad Man, he has suffered worse consequences through handing in an illegal weapon than he would have had he simply kept it."


Me:Well yes. But not if he'd simply kept it and then been caught.

Steff:"Irrespective of detailed points of law or Clarke's character, this is NUTS. An active inducement to non-cooperation with the police.

Me I disagree. If I found a gun I would call the police. I would expect anyone else to do the same and nothing about this case would give me pause to reconsider that. I don't see any disincentive to cooperation with the police, only a disincentive to taking-a-gun-that-you've-held-on-to-for-a-while-down-to-the-police-station. And there need be no incentive to do such a thing. That doesn't undo any of what I said in my first comment regarding the failings here being caused by the 'strict-liability' nature of the offence.

John Self wrote:"I may be misinterpreting here, but I get the impression that when people say that Clarke's account wasn't tested, or comment on the lack of cross-examination, they are suggesting that this adds to the culpability of the CPS/police in this case. But the only person to blame for Clarke's account not being tested is Clarke. It looks as though the jury took the view that that which can be asserted without evidence, can be dismissed without evidence.

Me That's certainly not my opinion. It seems to me that one of the reasons his account has remained untested is that the offence is strict-liability. If the police and the CPS think he's a wrong'un they are right to proceed. But because it is a strict liability case they have no need to do anything other than provide evidence of possession... and Paul Clarke's own account does that.

If it wasn't a strict-liability case and there was some flexibility to the sentencing then the prosecution would have an incentive to test his account if they believed he was more involved than he claims because that would be their only way of pursuing what they thought was a fair sentence

Steff said...

Dave Gorman: Well yes. But not if he'd simply kept it and then been caught.

How would he have been caught, though?
You're replacing a very real and current risk to his liberty with a vague notion of future risk, which doesn't work in inducing people to behave. That's the very perverse incentive I'm talking about.

Dave Gorman:If I found a gun I would call the police. I would expect anyone else to do the same and nothing about this case would give me pause to reconsider that. I don't see any disincentive to cooperation with the police, only a disincentive to taking-a-gun-that-you've-held-on-to-for-a-while-down-to-the-police-station.

Maybe you would, but then you haven't* got a record of negative interaction with the police nor any form of criminal record. Nor are you an idiot. Lots of people are in one or all of those camps, though, and they're the ones likely to have the illegal weapons to hand in, in my submission.

Moreover, as far as is known, the only reason anyone knows that he'd held onto it for any period of time is that he said so. Again, a disincentive to have anything to do with the police, in this case by giving an honest (or partially honest) account.

*AFAIK

Steff said...

Forgot to address Dave's "And there need be no incentive to do such a thing."

I disagree: if you have any desire to reduce the number of illegally-held weapons, you definitely want an incentive to do such a thing (subject to establishing that the weapon hasn't been used in crimes by the hander-in). Otherwise you ensure that weapons only get taken out of circulation by unlikely accident or after their use in crime, which again seems perverse.

David Weber said...

"However, with strict liability offences, there should always be flexibility in respect of when prosecutions are bought and flexibility also in sentencing. It is by these means that a just legal system ensures that a strict liability offence does not lead to injustice."

I disagree here, actually, on the small detail that though it may often be by these means that a just legal system ensures that a strict liability offence does not lead to injustice, these means do not guarantee it.

I praise the way you've gone some way to illuminating the rationale for both the police and CPS in this case, because it seems that they may have felt good reason to press charges. However, this does not remove the central issue which is, as far as I am concerned, that we can only trust the police for justice to be done.

For Paul Clarke has no way to *test* the police's assertion that "He had come into possession of the shot gun and two shotgun cartridges some days earlier and had not immediately contacted the police to make them aware of its existence. He was given the opportunity by the police to explain the full circumstances as to how he was in possession of the lethal weapon but his explanation lacked credibility."

Indeed, as you say, Paul Clarke's account has not been contested in court. What is astonishing is, therefore, that his *moral* guilt or innocence, as we see it, hinges not upon his actual possession of the firearm, but of his circumstances. Why, therefore, are the police entrusted with interpretation of these circumstances in official Home Office guidelines, but not the courts. Why, actually, is there any *need* for the offence to be strict liability? It is this which no party scrutinised in your post has been able to adequately justify, far more than the decision to prosecute itself, which it appears there could be justification for.

This is crucial, because even if this case is *not* a moral injustice -- and Paul Clarke does deserve his criminal conviction -- a) We have no way of knowing whether this is true or not, given that the crucial details have not been tested in court, and b) We have no check against this sort of injustice actually happening, some point in the future.

So imagine the police made a mistake. Imagine that their conclusion as to Paul Clarke's account was wrong. It is immediately apparent that this case is about far more than Clarke's actual moral guilt or innocence, it is about basic principles of justice, for if the police were wrong, he has no way to expose that error. If the police were *corrupt*, he has no way to expose that corruption. This is about a basic imbalance of justice in the law -- not about whether Mr. Clarke is morally guilty or not.

(None of this is particularly directed against your post, which is easily the best so far written about this case. It's just a few observations, and my own personal conclusion regarding the injustice -- it's right at the beginning, with the presence of the strict liability clause, although the minimum sentence, as you rightly point out, compounds things.)

Lee Griffin said...

David Webber: "Why, actually, is there any *need* for the offence to be strict liability?"

Police turn up at your house on unassociated business, see you have a sawn off shotgun, arrest you. You claim you found it 5 minutes before they arrived and were just about to call them. Where does that court case go?

This is equally relevant to Steff's comments above.

Also, Steff, there is no disincentive to do the right thing which is to let the police know you have it as soon as you can and ask them to collect. I see no disincentive in anything that has been said to carry on doing the right thing.

If this is a disincentive to keep hold of dangerous weapons and to not carry them through the streets then that is a GOOD THING.

Whether he deserves to be charged or sentenced over this is besides the point on that matter. Even if he was completely innocent I would hope the least people will take away from this is don't carry dangerous weapons around and don't hang on to them needlessly.

Dave Gorman said...

Steff"How would he have been caught, though?
You're replacing a very real and current risk to his liberty with a vague notion of future risk, which doesn't work in inducing people to behave. That's the very perverse incentive I'm talking about."


Me I'm not suggesting the sentence (if it does come it at 5yrs) is appropriate. I've argued against it being a strict-liability offence for that reason.

But all thought of how people are punished is based on an if-they-get-caught argument. I can think of many reasons why a man with a record involving offensive weapons might give the police some reason to search his house. There are many ways in which he might have been caught.

If his story is correct then his crime is in holding on to the weapon and in taking it through town to the police station and handing it in in person. I think that is stupid enough and dangerous enough to merit some punishment. I agree that surrendering a weapon should obviously be looked on more kindly than not doing so.

Steff"...if you have any desire to reduce the number of illegally-held weapons, you definitely want an incentive to do such a thing (subject to establishing that the weapon hasn't been used in crimes by the hander-in). Otherwise you ensure that weapons only get taken out of circulation by unlikely accident or after their use in crime, which again seems perverse."

Me: You need to give everyone as big an incentive as possible to surrender weapons of every kind. When I said, "And there need be no incentive to do such a thing." I was talking quite specifically about holding on to the found weapon and to carrying it personally through town... both of which strike me as highly irresponsible and dangerous things to do. (A danger to his own liberty if nothing else... as I said before, what would have happened if he'd been stopped on the way?)

Steff"...Maybe you would, but then you haven't got a record of negative interaction with the police nor any form of criminal record."

Me:The suggestion here seems to be that if you do have a criminal record or a history of negative interaction with the police it somehow makes more sense to walk into the station unannounced and put a sawn off shotgun on the desk than it does to call them and tell them what you've found. And I don't follow that logic.

Unfortunately, Paul Clarke's story seems to lack credibility precisely because it seems like such a counter-intuitive way to behave. It invites disbelief.

And because of the strict-liability nature of the offence it seems nobody has an incentive to find out more.

Steff said...

Lee Griffin: Also, Steff, there is no disincentive to do the right thing which is to let the police know you have it as soon as you can and ask them to collect. I see no disincentive in anything that has been said to carry on doing the right thing.

Providing you're prepared to bet five years of your life (and a serious criminal record) on their not deciding to pursue a prosecution because they don't like you or want to achieve a target or (rightly or wrongly) simply don't believe you. Many people, and as I said before, specifically the people to whom this is most relevant, will not want to make that bet. They will believe, rightly, that the odds are good that their house won't get searched: at any rate not well enough to find something in long-term concealment. Or they'll give or sell the gun to someone less scrupulous. Great.

In my humble, all of this boils down to whether you want a small number of convictions for possession or a larger number of guns handed in. I'll take the latter as having a more positive effect on my safety and a less negative effect on the public's relationship with the justice system (and so, when they actually think about it, will the police - witness the regular amnesty-bin campaigns).

Steff said...

@Dave Gorman:

Annnd... we're back to the detailed arguments which obscure my original point - that if he'd just popped it in his loft (or given it to a trusted mate, or indeed dropped it over the wall back into the park for someone else to find) he would be facing no sanctions whatsoever*. And that remains, IMHO, nuts.

*nor any very realistic prospect of them, compared to what he now faces.

Ceebs said...

I dont see why Paul Clarkes actions are so counter-imtuitive. Say I find the weapon on a Monday morning, I have a choice between going to work, or spending the day filling out paperwork, talking to policemen, maybe having my house searched. It might have happened at any point where there were things that were a bigger priority in his life, not knowing that by keeping the weapon for the narrow piece of time between when he found it and when he handed it in.

What ammount of time is sufficient for posession to be charged? and if that ammount of time is sufficient, then why not one second less and so on.


If I am a bit dodgy, or one of my children is I might need to check my own house to mkake sure theres nothing there that can trip me up before I let the police come traipsing round my house in their size nines. Thats not saying that he had been, but It would be utterly reasonable to check with other people before allowing complications into your life. It might be that


People who argue that you might get robbed on the way, id ask who in the situation is the person with the sawn off shotgun, and so how likely is that robbery to occur? at minimum the mugee has a very strong negotiating position to keep hold of their wallet and bag and on discovery that they are armed the mugger would have to rapidly reevaluate their position and seriously consider the friendly advice to "f*ck off cos ive got a sawn off"

Thomas said...

DAVE SAYS:The suggestion here seems to be that if you do have a criminal record or a history of negative interaction with the police it somehow makes more sense to walk into the station unannounced and put a sawn off shotgun on the desk than it does to call them and tell them what you've found. And I don't follow that logic.

I'm not sure what difference that makes in this case. If I'd had beef with the Police, ringing them and telling them I have a gun in the house would be treated no differently to bringing it in.

Equally, I don't follow this 'danger of carrying a weapon'. The guy is ex-military and knows the risk. It is highly unlikely he'd have been 'mugged' on the way and it wouldn't have 'gone off'. That's like saying kids shouldn't play outside because there are paedofiles. Most of us have carried large sums of money at some time and never been mugged.

All of this misses the point. Someones credibility and possible guilty is immaterial. It could have been you innocently finding a gun and getting in this trouble. The case is no different as its tick box guilt.

Even if he had 'used it in a crime', surely that's the police responsibility to investigate its previous use, DNA fingerprints etc.

In court, someone's previous form/convictions is only admissible if relevant to the case in hand and I'm not sure it would be relevant if 'tested'.

David Weber said...

"Police turn up at your house on unassociated business, see you have a sawn off shotgun, arrest you. You claim you found it 5 minutes before they arrived and were just about to call them. Where does that court case go?"

So the burden of proof should be reversed here? I hate to say it (well, actually, I say that, but I don't), but unless it's possible to prove that you didn't have reasonable cause, then you shouldn't be convicted. This may result in people getting off the hook, but that's a worthwhile sacrifice to ensure justice.

David Weber said...

"Also, Steff, there is no disincentive to do the right thing which is to let the police know you have it as soon as you can and ask them to collect. I see no disincentive in anything that has been said to carry on doing the right thing."

Additionally -- sorry -- if someone really had found it five minutes earlier, and not had time to notify the police prior to the raid (unlikely, but possible), then in your example they'd still be screwed by the strict liability clause.

Adrian said...

I tend to agree that the Firearms and Criminal Justice Acts, and the publicity that this story has gained, may prove to be a disincentive to people to report found weapons to the police. Which hardly makes it in the public interest to have brought this case to court!

I also disagree that it is so stupid to carry a weapon to a police station. I'm sure that during weapons amnesties (e.g. http://www.4ni.co.uk/northern_ireland_news.asp?id=15452) many weapons are handed in at police stations without any real danger having been caused to the public, and saving an awful lot of police time. In fact, many members of the public will have the image in their head of items being handed in at police stations, and never dream that to do so would be a criminal act. The police guidance quoted in the post reinforces this image.

That the police went against this guidance smacks (in the absence of any other evidence) of a vendetta against Mr Clarke.

lee griffin (mobile) said...

ceeb: i think you prove my point a little. If while being mugged a person uses the weapon they're carrying cs a threat they commit another offence. The mugger may leave him alone but what's the outcome, evaluating his life choices? Or perhaps deciding to stay in power he should arm himself from now on?

Our actions have potential consequences that can become very real. Stupidity, ignorance or distrust of the rozzers is not an excuse to avoid punishment; but they must be factors in what that punishment is. A day in court may be enough, perhaps more, it depends on the circumstances.

As mr gorman said, the issue is about strict liability, and not because the case came to court but because it dissuades a full and factual hearing. I will concede that certain characters may be disincentivised over this, however if doing so it may be founded on the idea they'll get persecuted even if they don't touch it and call it in...nothing in this case suggests the police would ever arrest in that situation if you're co-operative and transparent.

But, on that issue, it'd be nice if someone could engage with my opinion forming. Strict liability has obvious down sides, but how about the practical implication of a criminal engineering a situation where, without strict liability, he gets either a pat on the back for turning in a weapon at worst, or at best a day in court where the only evidence is his word against the authorities?

Lee Griffin said...

David: Sorry, didn't see your comment before. I'm afraid that just doesn't cut it with me as a reasonable outcome. I'm all for liberties, absolutely, we should never send innocent people to jail nor give them a criminal record. But the alternative is to seemingly let criminals off easily just to ensure that happens.

This law highlights the very boundaries of acceptability in legal action and the justice system, one where we have to simultaneously trust the system and those that bring us in to it (the police and the prosecutors).

I think the home office guidelines are sound, as are the CPS guidelines. What we should be collectively calling for out of all this is a formalisation of those guidelines in the sense that we can trust the police to follow them no matter what prejudices or prior experience with a person they may have had.

That said, however, I'm not sure that the police here have contravened this guidance if their belief is that Paul Clarke is misleading them, by accounts of his own statement.

--

I also had an interesting conversation with my partner about the schroedinger's shotgun situation. Together we came to the conclusion that if you really happen to be in that situation there are two choices you have. 1) wait for someone to come so you can direct them to call the authorities or 2) if it seems no-one is around or coming to leave the weapon and find a way to call the authorities and then come back.

It should never be an excuse to disturb a potential crime scene, but this has to play against a conscience for ensuring no-one else gets hurt. However I ask if you were out running without a mobile phone and you came across a murder taking place, or a rape, would you immediately think you should intervene or that you should alert the authorities some how?

It's easy to put ourselves in this situation, hypothetically, and say we'd do the "right thing" and help...but would it be the right thing? We may or may not save the victim of an attack by intervening, we may not help and actually make the situation worse, we may also become a victim ourselves...by not taking a good view of the situation and finding a way to alert the authorities ASAP the sure thing is that the cause and perpetrators of a crime won't as easily be solved to stop it from happening again. Perhaps that needs to weight a little heavier on our consciences too.

Simon Bradshaw said...

For me, the red flag is the comment that Mr Clarke decided not to give evidence. Even if he had no defence in law as such, surely it was in his interests to put his version of events, if only so that it was in the minds of the jury?

There is one very common reason of course why a defendant does not give evidence: to avoid being cross-examined on it. You cannot be asked awkward questions about something you have said nothing about. Furthermore, the prosecution cannot refer in summing-up to issues that have not been raised during either the prosecution or defence case.

If Mr Clarke's version of events was true, it would have done him no harm at all to explain them, in his own words, to the jury. Why didn't he do so? Was it because his explanation would not have stood up under questioning? Were there factors his story that, if aired in court, would have entitled the prosecution to bring up aspects of his prior character they were otherwise not permitted to?

Tom Paine said...

The problem is with strict liability itself. There should *never* be a crime without criminal intent or at least a grossly negligent disregard for consequences.

RichieRich said...

A very interesting post and very interesting comments.

A few people have said that the fact that Mr Clarke chose not to give evidence suggests his "involvement" with the shotgun was greater than he claimed.

Perhaps I'm being naive, but if his involvment with the gun really was greater, why would he hand it into the police and risk arrest instead of dumping it in, say, a river, skip or neighbour's garden?

Given the CPS guidance mentioned by Lee, the CPS appear to have acted properly. And given that it's a strict liability offence the jury clearly had to convict.

Thus, the question appears to be whether, based on Mr Clarke's account, the police could reasonably conclude that, with regard to the weapon

"circumstances exist to give serious cause for concern as to its provenance (for example, if it appears to have been stolen)".

I'm not sure that such circumstance did exist.

David Weber said...

"David: Sorry, didn't see your comment before. I'm afraid that just doesn't cut it with me as a reasonable outcome. I'm all for liberties, absolutely, we should never send innocent people to jail nor give them a criminal record. But the alternative is to seemingly let criminals off easily just to ensure that happens."

In effect, what you're saying is that we *should* risk sending innocent people to jail and/or giving them a criminal record. It's no use saying you don't want this, and backing a policy that lets this happen.

If someone is charged for illegal possession, it should be proved that he hasn't acquired it recently and innocently. Anything else is a reverse burden of proof. It may result in some criminals being let off the hook -- but that's a well-known feature of innocent until proven guilty. Effectively, though this is on a far lower level, this is the same type of reasoning as applied by the Bush administration, and it's unacceptable for the same reason.

"This law highlights the very boundaries of acceptability in legal action and the justice system, one where we have to simultaneously trust the system and those that bring us in to it (the police and the prosecutors).

I think the home office guidelines are sound, as are the CPS guidelines."

The guidelines are sound. I trust the guidelines as guidelines. I do not, however, trust that the police and the CPS will always come to just decisions, and it is for that reason that we *have* the courts.

I don't even think it takes corruption on behalf of the police for something to go wrong when it comes to this law -- just for their evaluation to not be correct, which is known to happen.

"What we should be collectively calling for out of all this is a formalisation of those guidelines in the sense that we can trust the police to follow them no matter what prejudices or prior experience with a person they may have had."

What on earth do you mean by that?

The guidelines are 'formal' guidelines. If you mean that people should be able to scrutinise the police procedure in court, to ensure that they can test the police's assertion that they have followed guidelines, how is that different to watering down the strict liability clause in the first place?

"That said, however, I'm not sure that the police here have contravened this guidance if their belief is that Paul Clarke is misleading them, by accounts of his own statement."

Nor am I. That's immaterial. I want to be sure that the police *haven't* contravened this guidance, or simply made a mistake, and Paul Clarke has no way of doing this in law. This is the injustice -- we have no way of knowing whether Clarke is morally guilty or not.

@Simon -- "For me, the red flag is the comment that Mr Clarke decided not to give evidence. Even if he had no defence in law as such, surely it was in his interests to put his version of events, if only so that it was in the minds of the jury?"

I don't dispute your point here, but again, I consider it immaterial, and very similar to the argument made against 5A a lot in the States -- there's plenty of speculation that looks bad for Clarke, but the point is that someone must be found guilty based upon something more solid than speculation.

Michael said...

As a member of the public, and so whose interests the decision to prosecute rests on, I am very concerned that someone found a gun but then waited two days before contacting the police.

Had he contact them as soon as was possible then I would agree that prosecution was unjust and absurd. Similarly in the example of a gun found in the park, I would see it the public interest as being better served by someone to taking possession of it until they were able to contact the police rather than leaving it unattended.

That was not the case here, based on the evidence you offered. He had a gun in his possession for two days, and could not account for why he did not contact the police immediately.

I do not see the public interest, my interest, being served by the CPS saying "oh well, never mind" as you seem to suggest by dismissing it as "a subjective reaction to the only evidence available". (And what evidence should the CPS act upon if not the only evidence available?) He illegally had a gun in his possession, chose not to contact the police for a prolonger period of time, and cannot justify that action.

Lee Griffin said...

"In effect, what you're saying is that we *should* risk sending innocent people to jail and/or giving them a criminal record. It's no use saying you don't want this, and backing a policy that lets this happen."

I don't back this policy, I've not said that at all. I also don't back calls that would change the law to make conviction impossible, proving guilt of possession will either be impossible or practically the same as having strict liability. "Did you have the gun in your possession when taking it to the station", "yes", "I rest my case".

And yes, I do think the procedure of the police and the decision making they took (and thus the evidence they have for following their guidelines) should be scrutinised in court. The problem in a law of possession is that it IS black and white as to whether the person possessed it or not, it is the intention that needs to be tested in court.

I don't think changing the strict liability nature of this crime is the answer, either way a problem surfaces, change it or not. But if the court was also able to decide if the charge was to be justified as part of the process (which, in all fairness is where the Judge and their sentencing may well step in) then that would be an acceptable situation to live in as far as I'm concerned. The best situation we could hope for in a very awkward area of law.

There is a bigger question as to whether Section 5A is even appropriate, that may well be a more productive line of action.

Lee Griffin said...

"That was not the case here, based on the evidence you offered. He had a gun in his possession for two days, and could not account for why he did not contact the police immediately."

That and that he was previously known by the police as having been charged with a crime (and acquitted in appeal). Combine the above with the police knowledge and it's not out of the realms of reality to see why the police might legitimately have concern enough that they actually did follow the Home Office guidelines. I'm not sure I believe it but without further police comment that we're missing we can't be totally sure either.

obiter said...

1. Cases such as R v Deyemi [2007] EWCA Crim 2060 deal with the issue of strict liability and "possession" is also addressed in that case.

2. The main problem here is not so much the strict liability (which is, IMHO, justifiable) as the fact that there is a minimum sentence unless there are exceptional circumstances. Minimum sentences place a severe limitation on judicial discretion in sentencing and they can be unjust. However, by law, the exceptional circumstances may relate to either the offence or the offender. Pre-sentence reports are normally prepared and assist with the sentencing.

3. It has always been a risky thing for a defendant NOT to give evidence in court. It is their right not to do so but they run the risk that the jury (or magistrates) might draw inferences which might actually be wrong. This risk existed long before the "right to silence" provisions were introduced by the Criminal Justice and Public Order Act 1994. The various press reports of this case are silent as to whether the "right to silence" provisions in the 1994 Act were applied.

Of course, if the defendant chooses to give evidence then he runs the risk that his story will not stand up to cross-examination and if that happens then any chance of arguing exceptional circumstances has been almost certainly destroyed.

4. Will this story deter the person who is a totally honest finder of some weapon which has been discarded on their property? The answer is "very probably." That is one adverse and unintended consequence we do not want.

Mac said...

If I find a gun in my garden, am I then "in possession" of it, so that even calling the police to ask them top collect it wouldn't protect me against the strict-liability offence?

Alex S said...

Extremely intersting article, and one in which it is difficult to form an objective opinion.

Personally I do not think there was an injustice done here for two reasons:

1) Civic duty does not involve a two day, unexplained wait.

2) In the children's playground example, the answer would be to either go to the nearest phone box, or wait for a passerby with their own phone.

The over-simplification of this example helped me to conclude that perhaps an accusation of 'injustice' might be over-simplified as well.

However for the carefully explained reasons in this article, I'd have to say that there seems to be a real potential for injustice in this area, although I still have faith in the discretion and judgement of our judiciary in interpreting draconian provisions.

It will certainly be interesting to see what sentence is handed down on this one as the mandatory would certainly seem very harsh!

M said...

I am intrigued and troubled by this case.

The CPS say that Mr Clarke's account of how he came to possess the gun lacked credibility.

Supposing the police and the CPS doubt Mr Clarke's story and have reason to believe that the true circumstances warrant a charge and a prosecution. If so, it appears that they have essentially a "slam dunk" case against him because of the strict liability offense.

If this is the case, I am wondering whether there is another way in which matters could have progressed such that justice is seen to be done. Could / should Mr Clarke have been charged with a different offense? Could the case have proceeded in a different manner such that the motives behind the prosecution were transparent?

If the CPS believe that it was in the public interest to prosecute Mr Clarke for reasons that are not apparent, is it in the public interest for them to do so in a straightforward manner where there is a near-guaranteed conviction or a more complicated and perhaps expensive manner in which justice is seen to be done?

Igor's Minion said...

Wigarse : One very important point here seems to be that he kept the gun for a few days before handing it in. If you take the walk to the police station out of the equation he was still, by his own admission, in possession for quite some time.

We also read that he had problems with the police before, and was in the process of a civil claim against the local force. Arguably a (short) delay in these circumstances is understandable, if unwise, while he decides whether he ought hand it in or dispose of it to avoid it being used against him, before eventually coming to the correct (but unfortunate for him) decision to hand it in. Indeed, such a justification for delay is made all the more believable in future cases of this nature if those who find prohibited articles have in the back of their mind the details from this case.

Pam Nash : If I knew, that although technically guilty, I was morally innocent and facing a 5 year sentence, believe me when I tell you that I would want my say in court.

But if you had also received legal advice that this would risk harming your case in the eyes of the jury should certain awkward-but-innocent matters come up under examination? That is one good reason why no inferences should be drawn from his decision.


The root of the unjustice appears to be the law itself, which simply cannot provide for such seemingly obsucre circumstances, and this has been exploited by the police who took the no-risk opportunity to nobble someone who was causing them problems.

The Anonymous Prosecutor said...

Many thanks for a thoughtful and insightful post. Just one thing -- a Newton hearing takes place where the defendant pleads guilty on a factual basis, and the difference between his basis of plea and the Crown's case is such that there would be a difference in the level of sentence between the two versions.

The court would then hear evidence, decide which basis was correct, and sentence accordingly.

In this case, he pleaded Not Guilty, chose not to give evidence, was convicted, and all that remains is mitigation and sentence -- not further evidence.

Anonymous Bloger said...

Just confirms what anyone can tell you. Law an morality are two very different things. Its our job as citizens to modify the first to better reflect the latter.

You've been linked here:
http://carnifexinsania.blogspot.com/2009/11/whither-strict-liability.html

Steve Jones said...

I was discussing this case with a colleague, and he had recent indirect experience of something which was possibly more unsettling, and does indicate that there must be some discretion involved in sentencing. Unlike this case, it did result in a death, albeit under highly unusual, but maybe even more allarming, circumstances.

It involved my colleague's daughter's music teacher. His father was terminally ill in hospital with a lung disease. The music teacher obtained a WWII Walther PPK handgun, and handed it over to his father, who then shot himself in a a public hospital ward.

By any standards this is a somehwat startling case, and the son pleaded guilty to two charges of possessing an illegal firearm and two charges of passing an illegal firearm onto his father (he wasn't prosecuted for assisting his suicide - which really does put those Swiss clinic cases into perspective).

For this he recieved a three (not five) year sentence. I would have thought the minimum penalty for a handgun of this sort was the same as for a sawn-off shotgun.

This is a link to a newspaper article on what was a tragic case

http://www.bucksfreepress.co.uk/news/4582336.Risborough_music_teacher_jailed_after_giving_suicide_father_gun/

king david of mercia said...

I believe that all man made law is bad law and as such all convictions an injustice, but having said that am I not as guilty of also taking life to seriosly as do man made law purists. I feel that I shall have to rest my case and give this some very deep thought.

ArmBritain said...

Here are some very similar cases, showcasing the absurdity of minimum sentences for simply owning an illegal firearm.

http://lpuk.blogspot.com/2009/09/justice-in-uk.html

Ideal conditions for criminals to have free reign over the law abiding.

Stonehead said...

Comapre and contrast Paul Clarke's experience with that of Valerie Farrell.

Mrs Farrell telephoned Southend Police Station and spoke to an inspector. She said she had something to hand in, but didn't tell him what it was because it was a confidential matter.

Mrs Farrell then went to the police station where she took two pistols and a revolver from her handbag.

Police were quite excited about her weapons, too, but took rather a different approach to that used with Mr Clarke...

http://tinyurl.com/yhf97jo

Spike said...

You are all missing the point, surely.
Strict Liability= guilty until proven innocent.
An abomination to this judicial system. No?
Clarks personality should not be a part of the equation. Nutter or misguided gent, no-one should comment. His action, if genuine, is commendable. The delay odd. The what ifs are not accountable.
Holding the thing makes him a criminal, regardless of the circumstances...ridiculous.
Bad law.

Stephen said...

Spike: That's absolute rubbish, strict liability does not equal a presumption of guilt. It means that they have to prove that the accused performed the illegal act that's prohibited in statute. It helps their case greatly that Clarke admitted to it. You can't expect a jury to acquit someone who's signed a confession.

Andrew T said...

There must always be some residual discretion even where a sentence is "mandatory" for the odd case - and this may not be one - which does not fit the bill.

As for the guardsman given a suspended sentence for rape "to protect his career" - for Pete's sake that was in 1977 and would not happen now. And if it did there is now (but was not then) a mechanism in place for the pros. to appeal against excessively lenient sentences.

Stephen said...

Supposing the police and the CPS doubt Mr Clarke's story and have reason to believe that the true circumstances warrant a charge and a prosecution. If so, it appears that they have essentially a "slam dunk" case against him because of the strict liability offense

If this is the case, I am wondering whether there is another way in which matters could have progressed such that justice is seen to be donw

I think that's a very good point. Let's assume that Clarke did not act in good faith. In which case the prosecution should adduced some evidence to that and not relied simply on the strict liability of the offence. The publicity surrounding this case means that people will not want to notify police of an illegal firearm for the risk that they might be prosecuted. This can only be to the detriment of public safety.

ivan said...

Paul Clarke was sentenced a week or two ago, although as far as I can see only the Daily Mail reported it, so this might have been overlooked by many.

He obtained a suspended sentence of 12 months. Although this seems sensible, actually I am a little surprised at the judge's reasoning in arriving at it (if you can believe the DM's reporting of it). In effect the judge said that he found Clarke's account implausible, but the prosecution had said nothing to discredit it, and the burden of proof lay on that side. Clarke has a previous conviction for possession of a firearm.