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?
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.
Please confirm whether the decision to prosecute was taken personally by the Chief Crown Prosecutor for Surrey.
“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.”
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"
“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. “
Can you expressly confirm whether the CPS had any regard to the relevant Home Office guidance in their decision-making, in particular chapter 25.
"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."
On what basis was it decided that Mr Clarke's account lacked credibility?
"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."
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.
"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.
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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