Wednesday, 30 December 2009

The Injustice Done To Paul Clarke

Paul Clarke, who was prosecuted for possession of a shotgun, received a suspended sentence.

The judge found there were exceptional circumstances.

The consequence was that Paul Clarke walked free from court.

Following on from my blogpost Paul Clarke: An Anatomy of an Injustice, I want to here explain why this outcome, whilst welcome, means that this case remains an injustice.

Justice should of course be an essential quality of the judicial process as a whole.

In that way, the exercise of the judge's discretion to find exceptional circumstances meant - perhaps - that the process as a whole had worked.

However, when a case involves the double jeopardy of a strict liability offence and a mandatory minimum sentence, then there should be anxious scrutiny of decision-making earlier in the process: namely the decision by the police to charge and the decision of the CPS to prosecute.

The finding by the judge of exceptional circumstances necessarily throws into question the soundness of these two crucial decisions. The police decision to charge appears to me to be incompatible with the relevant home office guidance; the decision of the CPS that it was in the public interest to prosecute appears to me inconsistent with the only version of facts before them: the evidence of Mr Clarke.

It is not enough for such decision-makers to pass ultimate responsibility to a court in circumstances such as that of Mr Clarke. Their administrative decisions had the real effect of someone facing a five year sentence, unless a court somehow found exceptional circumstances.

In particular, it is, in my view, wholly inappropriate for such administrative decisions to be made to charge and prosecute when the "exceptional circumstances" before the court were also before the police and CPS.

When deploying the coercive power of criminal sanctions, justice requires that each stage in a criminal prosecution should also be as just as possible - and not only the process as a whole.

In my opinion, this did not happen in the Paul Clarke case, and that is the injustice done to Mr Clarke.

By way of footnote: a lot of further information and allegations, some scurrilous and scandalous, is now available on this case. Even when I wrote the Anatomy blogpost I had been supplied with unsourced information, mostly discrediting either to Mr Clarke or to the police officers. However, as an exercise in evidence and source based legal reporting, I preferred to concentrate on the official decision-making process.


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WoollyMindedLiberal said...

Would you say that any case where the defendant walks free due to the judge using discretion is one that should probably never have been brought to court?

Andy said...

Justice should of course be an essential quality of the judicial process as a whole.

That isnt what my barrister told me. It is about the person whose legal team has the strongest argument

Multijoy said...

I'd love to know why he got a one night curfew on top of the suspended sentence!

World Traveller said...

WML makes a good point- every trial that (rightly) leads to an innocent verdict is vulnerable to the accusation that it ought never to have happened. Jack, mightn't it be better for the existence of 'exceptional' circumstances to be established by a judge? A system where too many people exercise discretion is very vulnerable to a)corruption and b) mistake. At least when a judge exercises it his decision is public and reviewable. (this is not to deny that, if he is telling the truth, some injustice has been done to PC, but merely that such injustice is small and the cost of avoiding it is great).

and Andy- I'm not sure that nihilism has much place in a normative discussion: any discussion of what the law 'ought' to be is vulnerable to the 'better legal team' argument, but the law would undoubtedly be worse if we always gave up there...

WoollyMindedLiberal said...

That isnt what my barrister told me. It is about the person whose legal team has the strongest argument.

And if you can think of a better method of working out what is or is not just then please let the world know.

ObiterJ said...

Strictly, Mr Clarke did not walk free. He received 12 months imprisonment suspended for 12 months + a one night curfew. The judge also referred to Mr Clarke's account being "somewhat implausible."

According to the Daily Mail report on the sentencing, Clarke said that he failed to call 999 when he found the gun because he had suffered 'harassment' from Surrey Police over a relationship he was having with a female detective. That is also a matter which ought to be looked into to see whether there is truth in it.

Having said these things, I entirely agree with you that the mixture of strict liability and minimum sentence requires every stage of the process to be watertight. However, that should be the situation with any criminal case. If we accept anything less then the criminal justice system is failing.

It is a rather worrying case and I commend your excellent coverage of it.