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In Events, Home Affairs, Judicial Spotlight on November 18, 2009 at 3:01 am


…appears to be another example, hot on the radar, of a news story that has bypassed the mainstream press (apparently, according to the Sun, page 25 counts as an ‘Exclusive’) but proved a significant hit on the blogosphere and Twitter, exploding, if indeed it needed exploding, the popular myth that the established media is representative of free speech and popular opinion.

Quite why the Journos are so quiet is something of a mystery. I’m not one to see conpsiracy theories in the pattern of the shapes lurking under my bed, but I must confess that there is something a little unsettling about this story, one of the most pressing that the Sun has ever ran, failing to even make it onto their website, whilst the usual dross it churns out is uploaded as a matter of cheerful regularity.

What is the story? Well, the best way to find out is to follow the diverse set of links provided by searching the title of this article in Twitter, where it has become a hugely successful ‘trend’ over the last few days — but I will attempt to summarise the facts, in as unbiased a way as possible, below:

Paul Clarke is an ex-soldier, living in Surray. According to the reported facts, he found a sawn-off shotgun abandoned on his property, and contacted the police to arrange an appointment. He ommitted to inform the police that he wished to hand in an illegal firearm, so they were first made aware of the fact upon his arrival at the police station.

This is where the story gets interesting. The police arrested — and charged — Clarke.  They pressed charges of illegal possession of an illegal firearm, which we are now discovering is a significantly more serious charge than one would have thought.

Clarke was found guilty by the jury for illegal possession, and awaits sentencing. But the interesting fact here that he wasn’t prosecuted on the basis of having illegally procured the firearm, but merely upon having illegally possessed it, and, apparently, handed it in in the wrong way (you’re not supposed to hand in a firearm at the police station, but rather not touch it and simply report it to them, although to add to the confusion, police in Scotland apparently advised someone to do the former).

Moreover, apparently there is a strict liability clause in the legislation, which means that there is no defence in law for possession, and intent is irrelevant.

If this wasn’t enough, possession of certain firearms, including shotguns, carries a mandatory five year sentence, although “exceptional circumstances” (naturally, not prescribed) can be taken into account.

So it would appear, from the face of the evidence, that someone can be prosecuted, convicted and sent to jail for five years simply for handing a firearm in to the police in the wrong way, and failing to fully understand gun law.

This throws up a number of concerns, some of which, interestingly, go beyond the immediately obvious “what are the police thinking” or “this is a travesty of justice” reaction. We do not know, remember, that Clarke was innocent of criminal procurement of a firearm, as it hasn’t been tested in court. Indeed, we cannot make assumptions about the motivations of the police for exactly the same reason that we cannot make assumptions about Clarke’s motivations, because we have no evidence concerning them.

What we do have is some fairly serious evidence of a failing piece of legislation, and failings at the heart of the justice system. What’s more, many of these failings are not new, and indeed have been present, bubbling away underneath the surface, for decades.

The first concern is that the immediate response of the police should be to prosecute for illegal possession, rather than illegal procurement, as the latter would appear to be the far more serious issue, rather than the former. What matters is whether Clarke procured the weapon from criminal sources or whether he really did come across it innocently, far more than whether he posessed it illegally for a few days, or whether he handed it in in the wrong way.

The second concern; if charging for illegal possession is the only option when illegal procurement is impossible to prove, then there should be both strict measures in place to ensure that people are not guilty until proven innocent, and significant discretionary powers for both juries and judges to take circumstances and intent into account. Yet neither of these measures are in place, and the law is specifically drafted as to treat all guilty of illegal possession in the same manner.

The third concern, and I feel this goes to the heart of the problem, is that the judge and jury should be given so few discretionary powers in cases such as these. Indeed, the law goes out of its way to deny them these powers, through the strict liabiliy clause, and the mandatory sentence.

What is interesting is that in the guidelines to the Police, the Home Office says:

25.5 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.

…which many people have taken as evidence that circumstances should have been taken into account, but were not. This misses the point, however: Discretionary powers were available, but only to the Police and the CPS. This means that the Home Office fully understood that this was a charge that should only be brought in specific circumstances, but chose only to trust the Police and CPS to apply their discretion, and actively denied the courts of the same privilege. In essence, if we wanted to see justice done, we should trust the Police and CPS for it, and not the courts.

This amounts to an astonishing lack of confidence in our judicial system. It effectively proclaims that our way of applying justice for centuries is not fit for purpose, and that the people who decide to press charges and prosecute crime should also be in charge of basic principles of justice. This is laughable, yet as aforementioned, it is part of a power struggle that has been going on for decades, and illuminates a simple truth: Politicians do not trust the judiciary. Michael Howard is perhaps the most famous Home Secretary for this*, but numerous other politicians have followed his legacy, attempting to bypass the judicial process wherever possible, and reacting with anger to places where the Judiciary holds them to account for it (such as thee 2005 Afghan Hijackers case, for example). What Howard started with Mandatory sentences, Labour have followed,  and the Conservatives have pledged to extend,  by setting in place four years for knife possession; so it is clear that the lesson is not being learned. Yet here we have a simple case that demonstrates the ineptitude of this sort of legislation. The judiciary may be unelected, but at least it has to  regularly make decisions again on the same subject. Politicians only have to get it wrong once; and the result is badly written, draconian legislation that undermines  confidence in the law, and makes us all the more unsafe.

Hat tip: Liberal Burblings, Constantly Furious, Jack of Kent, Sharpe’s Opinion, and of course Twitter.

*John B makes the point in the comments that this particular clause has been around a long time prior to Howard’s stint as Home Secretary. It would seem that these problems go back a lot longer than I’d previously realised.

  1. […] This post was mentioned on Twitter by Jack of Kent, Ding Dong. Ding Dong said: My take on the #paulclarke case: https://thedailysoapbox.wordpress.com/2009/11/18/paulclarke/ […]

  2. This amounts to an astonishing lack of confidence in our judicial system. It effectively proclaims that our way of applying justice for centuries is not fit for purpose

    Err, y’know this rule has been in force since the Firearms Act 1968…?

    That’s not quite accurate: amendments to the FA1968 have moved sawn-off shotguns into the same category as machine guns (pre-1997, he’d ‘just’ have been posessing a shotgun without a license), and the five-year minimum sentence unless there are exceptional circumstances (which is decided by the court, so not relevant to your point) is new.

    However, someone who found an automatic pistol in a plastic bag in November 1969 would have been in exactly the same situation you describe: only the police and CPS, and not the courts, would have had discretion over whether to let him off.

    (I’m not convinced that’s the right rule – but the point is that this isn’t anything to do with Michael Howard or NuLab. It’s the way law’s been made in the UK for more than 40 years).

  3. Good article, but depressing as to how the Home Office apparently sees things…

    “The first concern is that the immediate response of the police should be to prosecute for illegal possession, rather than illegal procurement, as the latter would appear to be the far more serious issue, rather than the latter.”

    However, I think you mean “…rather than the former.”

  4. “Err, y’know this rule has been in force since the Firearms Act 1968…?”

    Wow, no I didn’t! Thanks for pointing that out. I cited Howard because he was well known for his advocacy of minimum sentences, and his lack of trust in the judiciary (such as with the James Bulger case), and from my (very limited) knowledge of the history of politics in relation to criminal law, this was when the rot started to set in. I had no idea that the strict liability clause had existed for that long.

    So fair enough — but I stand by my wider point that it is an absurd rule, and that vesting discretionary power with the police whilst witholding it from the courts is a very, very bad idea, and an over-concentration of power with the Police and CPS.

    With regard to exceptional circumstances, is there any precedent as to what they might be?


    • Yes, check the legal literature on the Appeal in the case of Zakir Rehman from 3 or 4 years ago.

      • http://www.publications.parliament.uk/pa/jt200506/jtselect/jtrights/90/9002.htm

        From the above link/report:

        55. The mandatory minimum of five years’ imprisonment in clause 25(4) is presumably designed to echo the provision in section 51A of the Firearms Act 1968, which was inserted by section 287 of the Criminal Justice Act 2003.

        56. Both section 51A of the Firearms Act 1968 and clause 25 of the Bill make provision for ‘exceptional circumstances’. In the recent case of Rehman,[158] which concerned section 51A, it was held that exceptional circumstances existed if ‘to impose five years’ imprisonment would result in an arbitrary and disproportionate sentence’.[159] The court said that the ‘purpose of the provision is to ensure that absent exceptional circumstances the courts will always impose deterrent sentences’.[160]

        57. Despite this judgement, we remain concerned at the proportionality of sentencing under these provisions—since their effect may, in cases where exceptional circumstances cannot be made out, result in sentences that would not otherwise be thought justified. It is notable that in the case of the second appellant in Rehman, whose mandatory minimum sentence was upheld, both the sentencing judge and the Court of Appeal expressed regret or reluctance at coming to the conclusion that there were no exceptional circumstances in his case.

        58. Provisions of this sort can also have negative consequences for relative proportionality (i.e. the relationship of firearms sentencing to sentencing for other offences of equivalent seriousness). Courts may be obliged to pass minimum sentences where an offence of equivalent seriousness (even merely a different firearms offence) would not attract such a sentence. This can, indirectly, discriminate between different socio-economic groups. We are particularly concerned, in this regard, that the imposition of mandatory minimum sentences for firearms offences, where such provisions do not exist for other crimes of similar seriousness, may have a disproportionate effect upon some ethnic minority groups.

        59. The use of these mandatory sentences also seems likely to contribute to further increases in the rate of imprisonment and to prison overcrowding. The European Commissioner for Human Rights observed that:

        One might pause to note that the 50% increase in the prison population over the last decade has resulted in the United Kingdom having the highest rates of detention in Western Europe (around 140 per 100,000, in comparison, for instance, to 93 in France and 98 in Germany). This sharp rise would appear to result from a combination of longer and more frequent custodial sentences. UK courts have not over this period been dealing with more offenders nor an increase in serious offences that might otherwise explain this development.
        Quite apart from the cramped conditions inevitably entailed, such high levels of overcrowding impact on all aspects of prison regimes. [161]

      • Full ruling of the Court of Appeal on the Rehman case can be found here:


      • Thanks very much for the additional info. I will look into this with interest.


  5. you might want to spell Surrey correctly…

  6. […] just as fascinating, if not more so, than the adrenaline-fuelling outrage stories such as that of Paul Clarke’s Shotgun last year, or the Twitter joke trial. Those were undoubtedly the more exciting, more thrilling […]

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