One of the functions of the British jury is to save the law from itself when the law is being an ass. Sadly, that did not work this time.

Last time my family handed in a gun at the police station ( It had been knocking around the place for about 40 years, but when my son was found playing with it we felt enough was enough) the police merely said ‘Thank you’. Seemed the right reponse if you wanted to get guns off the streets.

This story seems like a bit of a crock, we certainly don’t have all the facts, he is also not certain to get 5 years as there is precedent that allows judges to sentence lower in special circumstances http://bit.ly/3vRJcF

I wouldn’t say it was a crock, Lee.

It may not result in Clarke getting stiffed for the full five years but, as Jack’s pointed out, if the report of the case is accurate (and local rags tend not to embellish) then its questionable as to whether the prosecution here was genuinely in the public interest.

Whatever the outcome, its a matter that merits careful scrutiny.

I really do not know what to make of that story. However, this part is very odd, and is making me suspicious:

In his statement, he said: “I took it indoors and inside found a shorn-off shotgun and two cartridges.

“At the police station, I took the gun out of the bag and placed it on the table so it was pointing towards the wall.”

Huh? Who on earth calls the chief superintendent, asks for a personal appointment and then goes to his office and puts a shotgun on the table in front of him? I really cannot fathom what that is all about but it is certainly very, very odd behaviour.

Yes, I think there may well be more than this than meets the eye from the initial report. It’ll be interesting to see what the more foaming rightwing blogs make of it in the next day or two, as matters of detail are not really there forte.

But assuming Mr Clarke’s intentions were as pure as he suggests (and there is no real reason to doubt this yet), the key to the matter may be that of ’strict liablity’ (thouigh I accept what Jack of Kent says of the inadvertent dangers of walking across town with a gun).

When I was a magistrate I faced the odd ’strict liability’ issue in respect of other more minor issues, including driving without insurance.

In circumstances where it was very clear that the driver was ‘innocent’, usually because he worked for a company and simply assumed that the company insured the vehicle, the concept of strict liability also applied.

What had to be done, in the eyes of the law, was for the defendant to plead guilty and then immediately receive an absolute discharge, thus acquiring no criminal record.

The difficulty of course was getting people to understand this strange convolution of pleading guilty in order to found innocent; one clerk of the court round my way used to seem to take a slightly odd pleasure in making it all a bit tricky, rather than just encouraging the chair of the bench to say ‘Listen mate, plead guilty, ‘cos you have to and the law’s maybe a bit stupid/hard to understand about this, but if you do you’ll be out of here 30 seconds without a blemish to your name.’ (Of course that’s difficult, technically, for a magistrate to before a plea is made.)

The fact that the jury took 20mins to decide (which is absolutely the minimum given that they all go to loo and have a cup of tea) suggests that we may be talking a straightforward case. The fact that it has been adjourned for sentence in 4 weeks may suggest a more complex story than we’re first getting, or it may simply be a bureaucratic silliness before an absolute discharge is announced.

There’s one revealing comment in what ‘Brit Cop’ says: that he has only seen a real gun twice and that that explains why the other policemen freaked out a bit when Paul Clarke walked into the police station with a weapon. Why, says ‘Brit Cop’, didn’t Paul Clarke just ring the police and ask them to come round for it? But if I’d found a firearm in the street I probably would have done what Paul Clarke did: put it in a bag and walked round to the police station.

Why? Because I’ve handled a rifle a few hundred times, and I’ve used machine guns and pistols too. Paul Clarke, as a regular soldier, will have handled weapons even more often. Weapons are lethal but when you’ve been trained to use them you don’t panic around them.

Finding a weapon that isn’t yours and handling it safely is actually a mandatory part of the ‘Weapons Handling Test’ that every soldier must complete at least once a year. You apply the safety catch, inspect the weapon, and unload it; then you take it off to someone who can look after it securely. What might seem like a ‘normal’ reaction to Brit Cop- ‘omigod a gun!’- isn’t how you behave if you’re trained not to freak out around firearms. There was surely zero public interest in prosecuting this man.

The point about this story is that the current government have created so many stupid laws over the last ten years- often carrying mandatory sentences- that it was a only a matter of time before someone went to jail for extinguishing a cigarette in the wrong place.

Of course usually these laws have been designed to persuade the client audience that the government can protect them from evil. So when a baby is savaged to death you can be sure that we will have a dangerous dogs act the following week.

If I were to tell you all that the way to fire a gun is to pull the trigger (please note that I am not telling you this) I would be in breach of the Terrorism Act (for training you in the use of firearms) and you would be in breaking the law by receiving that training. So reading this comment board could be dangerous.

Sounds silly? Yes, it is. Mr Clarke thought so too.

Incidentally Paul.

Why did you suggest that it would be the “foaming right wing blogs” that would be interested in making something of this story?

One would have thought that the prospect of an innocent man being jailed for five years would have exercised those who consider themselves to be liberals.

Or is that indicative of how far along this dark authoritarian road we have sleep-walked?

Incidentally Paul.

Why did you suggest that it would be the “foaming right wing blogs” that would be interested in making something of this story?

One would have thought that the prospect of an innocent man being jailed for five years would have exercised those who consider themselves to be liberals.

Or is that indicative of how far along this dark authoritarian road we have sleep-walked?

UPDATE

As some above have suspected, there is more to this story than meets the eye.

http://www.thisissurreytoday.co.uk/news/Man-accused-attacking-DVLA-inspector-broom-walks-free/article-361380-detail/article.html

It would seem this was not Mr Clarkes first brush with the law.

So, if we can’t get him for the St Valentines Day massacre, we’ll get him for tax evasion.

Pagar @8:

I didn’t say I was interested whether right wing blogs would make something of this story; I said I’d be intererested in what they made of it.

Posts like this from Unity, and from Jack fo Kent, and from Tom Freeman, all make something of it in that they think there may be something more to the story than meets the eye. You yourself have researched and found something, and this ‘antecedent’ may be behind at least in part tghe judge’s decision to dealy sentence. In addition, there may possibly be a case for a Newton hearing )http://en.wikipedia.org/wiki/Newton_hearing) a fairly recnt development where ‘mini-trial’ are held after a jury vedict based on strict liability where the issue is not so much the verdict but the level, if any, of sentence.

We know none of these things, but at least Unity et al are prepared to be open to new facts as they emerge.

Compare what we get from Devil’s Kitchen (just a taster):

‘This is, of course, utterly irrelevant: the jury, had they had any balls whatsoever, should have returned a “not guilty” verdict—and they would have been perfectly within their rights to do so. They chose not to.

And now this man faces a minimum of five years in gaol—and not only was he doing “the right thing” but he had not initiated force or fraud against anyone. Do you see?

I can only echo the anguished and furious cries of bloggers such as Constantly Furious and Dick Puddlecote: seriously, what the fuck is wrong with this country?’

I’ve not bothered with Constantly Furious and Dick Puddlecote – you click if you want to, but here’s Charlotte Gore, who is supposed to be on more sensible side of the right.

As for Devils Kitchen’s notion that it’s because of cowardly jury, has s/he never actually heard of the notion of common law precedent?

‘It’s a clear miscarriage of justice. The man’s life is ruined because he tried to do the right thing. What reasonable person would believe this is the correct outcome in this case?

In what way is that ‘clear miscarriage of justice’? He’s not been sentenced yet, and as I’ve said there remains scope for an absolute discharge, if the facts and Mr Clarke’s motivations are in fact as the initial story suggests.

Yes, there may be an issue to look at as to why the CPS proceeded to prosecution, but that’s quite a different matter than assuming that civilisation as we know it has come to an end because there’s such a thing as strict liability in law, and has been for quite a while.

Oh, and I see Alex Massie at the Spectator joined in. Now there’s a surprise.

It could take a royal pardon to extricate this guy from the legal consequences of well-intended actions in handing in a gun he said he found in his garden.

The larger and telling point is that this case demonstrates the downside reality of government policy to continue to legislate for minimum sentences to curb crime instead of leaving sentencing to the courts.

It would make better sense to worry more about why Britain has such a relatively large prison population compared with other west European countries and why conviction rates for serious crimes are so low.

“An investigation shows that conviction rates for many of the most violent crimes have been in freefall since Labour came to power in 1997 and are now well below 10 per cent. The chronically low figures for convictions come at the same time as reports that violent crime is increasing. An analysis of Home Office figures reveals that only 9.7 per cent of all ’serious woundings’, including stabbings, that are reported to the police result in a conviction. For robberies the figure falls to 8.9 per cent and for rape, it is 5.5 per cent.”
http://observer.guardian.co.uk/uk_news/story/0,,1784623,00.html

“Conviction rates for serious offences such as wounding and rape are too low, the Attorney General has admitted.”
http://news.bbc.co.uk/1/hi/uk/5025924.stm

Of course, simplistic and dramatic political gestures are so much less challenging for ministers than sorting out why conviction rates are so low.

I like how far behind the conversation this thread is by comparison to what I’ve been arguing on Twitter (where to my knowledge I originally posted both the Something awful and year old Paul Clarke story on the trending topic).

Unity. Look at the law and look at the story in the newspaper article. If the prosecution and judge were correct that there is NO defence for the crime under which Paul Clarke is prosecuted (and tell me if I’m wrong but I see no law of simple “possession of a firearm”) then he did fundamentally more than take a gun in to the station and leave it at that.

If he had no defence then he either did something violent with it, or something that caused “fear”, or he has a previous conviction. Anything else provides him with the basic defence of being able to provide proof of his innocence through reasonable explanation.

Either the story is reporting it wrong (which throws in to chaos the idea that what we’re talking about is anything near the truth anyway) or it suggests that either Paul, or the entirety of the judicial system that is processing him, are lying. If that is what it says then I know which I would favour (and it’s not the DVLA threatening broomstick wielder)

The simple fact is that police didn’t have to arrest him if they didn’t see a crime, the CPS didn’t have to prosecute if they didn’t see a crime, and the judge couldn’t have to tell the jury there is NO defence if there was a defence. Yet despite all of this they did, and he was charged, and he was found guilty.

Out of all of this I find it hard to know what to believe and what to trust, but the collective judgement of the judicial system will always win out, for me, over one man’s statement and the reporting of it in a (if I heard correctly) daily mail owned news source.

Lee:

Read s5 of the Firearms Act as revised by s287 of the Criminal Justice Act 2003 – http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1968/cukpga_19680027_en_1 – and find me the words ‘It shall be a defence…’

You won’t find those words because what you and other appears not to have cottoned on to is that it was a sawn-off shotgun he handed in, i.e. a prohibited firearm under s5(1)(aba).

There is NO ‘reasonable excuse’ defence to s5 because it relates to weapons under a general prohibition.

Conviction rates are low in part because the target is to bring offences to justice, not improve conviction rates per se.

Bringing offences to justice includes using cautions, formal warnings, Penalty Notices for Disorder, and offences taken into consideration as well as getting convictions.

Perverse incentives, unintended consequences – hallmarks of Labour since 1997.

Unity, Fair enough. What we hadn’t cottoned on to are facts that aren’t in the public domain, i.e. the specific dimensions and situation of the weapon, however, shorn off shotgun or not as described.

Given the police would have had the power to grant a permit to carry the weapon to them, it is surprising still, regardless of which charge, that they would press ahead and that the prosecution would take it to court. Surprising, of course, until you realise he walked from his last charge of assault. Perhaps it’s a bee in a bonnet issue, they didn’t get him for that on a technicality but they know they can technically get him for this. Maybe they see it as Karma? Or maybe there really was still more too it than all of this.

What we hadn’t cottoned on to are facts that aren’t in the public domain…

But which can readily be inferred from the information that is in the public domain and 10 minutes research.

To be fair, what’s happened on Twitter today is typical of gun control debates – too many people…

a) looking to interpret the story in a fashion that validates their pre-existing opinions and preconceptions, and

b) arguing against what they imagine their notional opponents are thinking without questioning whether they’ve got the right end of the stick.

.and too few stopping to think about what they actually know about the situation and whether it really fits in with what they think they know about it.

That goes for both sides – it’s real easy to ‘contribute’ to a tweetstorm just by reflexively hitting ‘retweet’ on something that you agree with without giving what you’re doing too much thought.

This (and other parts of the site) have also coloured my view throughout.

http://www.cps.gov.uk/legal/l_to_o/offensive_weapons_knives_bladed_and_pointed_articles/

34. In R v Povey, R v McGeary, R v Pownall and R v Bleazard [2008] EWCA Crim 1261, Sir Igor Judge, delivering the decision of the Court of Appeal in 4 appeals against sentence for offences of offensive weapon and bladed article, made the following general observations:

“Every weapon carried about the streets, even if concealed from sight, even if not likely to be or intended to be used, and even if not used represents a threat to public safety and public order.” (para 3)

“In our view, it is important for confidence in the criminal justice system that the man or woman caught in possession of a knife or offensive weapon without reasonable excuse should normally be brought before the courts and prosecuted.

For the time being, whatever other considerations may arise in the individual case, sentencing courts must have in the forefront of their thinking that the sentences for this type of offence should focus on the reduction of crime, including its reduction by deterrence, and the protection of the public.

Even if the offender does no more than carry the weapon, even when the weapon is not used to threaten or cause fear, when considering the seriousness of the offence courts should bear in mind the harm which the weapon might foreseeably have caused. So the message is stark. This is a serious offence and it should be treated with the seriousness that it deserves.” (para 4)

So far the debate has centred only on the common sense of not charging an individual for getting a gun in to the police, but not the common sense of not carrying a weapon around. Even here there is a deficit in the reasonableness of charging a minimum 5 years but that is why judges have made precedent to set lower than 5 year sentences.

Also the question should come, should there be a defence for possessing dangerous weapons? By all means, allow police and prosecutors to not bring the case forward if it’s not reasonable to do so, but put a guy in court and give him the opportunity of a defence… “Sorry guv, I found it yesterday and was going to bring it in..honest”…does that make getting the right conviction easier or harder in the majority of cases? Surely the onus here has to be on the prosecution knowing which cases to take or not based on the intention (which also harks back to the previous link).

Also I have no previous position to validate, only that the facts are not here, and that something seemingly being “X gone mad”, as you’ve made an article about here, doesn’t necessarily mean that anything is going mad at all.

@ Lee

OK Let’s be balanced.

Maybe there are other issues around this case not yet in the public domain. If there are we are all entitled to revise our positions, but for the moment let’s assume the facts are as we know them.

it is surprising still, regardless of which charge, that they would press ahead and that the prosecution would take it to court. Surprising, of course, until you realise he walked from his last charge of assault. Perhaps it’s a bee in a bonnet issue, they didn’t get him for that on a technicality but they know they can technically get him for this.

He “walked” from his last charge of assault because a jury, having heard all the evidence, decided he was not guilty. The reason why this particular law is so pernicious is because it did not allow the jury to come to a similar verdict. There was no defence because whoever framed the statute did not anticipate all the possible circumstances in which someone might be prosecuted and therefore allowed for abuse by the criminal justice system (if that was what happened here).

And there are many other such laws.

In my post above, I pointed out that we could both be convicted because I had told you how to fire a gun. It’s true. And we would both be found guilty because the offence is so widely framed. We don’t have to be terrorists. Only to have communicated.

Technically, we have broken the law and could be prosecuted and that is why it is important to squeal about cases like this. It’s no good saying, it’s a crap law, but I’m not worried because they’ll never come for me !!!!!!!

See you in the cells……….

So often this happens with British law. There’s no question about this and that “Brit Cop” post is just ridiculous. I’m a British civilian and I’ve seen guns hundreds of times – mostly totally unnecessary machine guns being waived at me by agressive little British jobsworth policemen.

If we had a functioning police and justice system everybody involved in this would be an ex policeman by now. There’s absolutely no question. But instead they throw up red herrings about how he was once found not guilty of something. Lying bastards.

20. He “walked” from his last result because despite the jury finding him guilty, the appeal he had meant that the DVLA officer not being able to specifically prove the bruises he had were from his beating allowed the court to overturn the original ruling.

This is, of course, justice in practice and I’d have it no other way. What I’m battling with in my mind is whether I’d have it any other way with regards to gun possession in circumstances like these (where he has seemingly not phoned ahead with details).

Like you say, we can’t live in a situation where honest people go to jail for honest actions…but is carrying a gun through the street without letting anyone know they’re going to do that a completely innocent action. My personal belief is that it is not. The trouble I have with the ability of defence is not one of it getting in the way but of it being redundant. One way or another defence on possession (purely possession) of a weapon such as this, if not possessed under one of the many caveats allowed, is one person’s word. Either the police have to prove the possession wasn’t in good faith, or the defendant has to prove it was.

How do you prove something like that? How, in fact, do you write it in to the law books to allow for “civic duty” without it being abused by real criminals to get off of their charges?

For me the guy DID do wrong, he acted in a manner I think very few people would have in the situation, and he potentially endangered the public through his actions. As the CPS prosecution guideline states, there is more to possessing a gun than the intentions of those possessing it. The only issue I have is that if it was truly honourable and that is evident to a judge and jury that the crime carries a minimum of 5 years in prison for it…but then given we know that judges have the ability to undermine the minimum sentence that issue irks me a whole lot less.

We shall see what happens on appeal, and on sentencing, and we *still* don’t know if all he did was his “civic duty” as he claims.

@22: “is carrying a gun through the street without letting anyone know they’re going to do that a completely innocent action.”

I think the Chief Superintendent counts as “anyone”.

How do you prove something like that? How, in fact, do you write it in to the law books to allow for “civic duty” without it being abused by real criminals to get off of their charges?

The primary function of writing good law is not simply to maximise the percentage of persons before the courts who see jail cells.

For me the guy DID do wrong, he acted in a manner I think very few people would have in the situation, and he potentially endangered the public through his actions.

‘Acting strangely’ is not yet illegal, however much the Daily Mail might like it to be so.

We need to take greater effor to educate our juries on their ability to nullify laws like these. I notice from this article that it has been used in the UK as recently as the Falklands war, so it is hardly an out there possibility: http://en.wikipedia.org/wiki/Jury_nullification

Good spot, Nick.

I wonder if the judge in this case informed the jury of their right to nullify?

But the fundamental problem is poorly drafted legislation. Until recently, Acts of Parliament were scrutinised, line by line, by the legislature, both in the Commons and Lords and the point of the legislation became finely honed in the text of each clause. The resultant statute was therefore appropriate to the purpose of the law.

In recent years, this process seems to have been largely abandoned by the use of guillotine motions and the creation of law by statutory instrument.

That is why we have a situation where an innocent man’s liberty is determined by whether or not a group of jurors are prepared to stand up for him and the relative injustice of his sentence is to be determined by the degree to which a judge is prepared to ignore the instruction of the statute.

We must have such laws repealed or rewritten.

@23 he didn’t tell the Chief Superintendent anything about the gun – he just arranged a meeting with him on an unspecified subject.

Had he told the CS about the gun, and had the CS then agreed that he should come into the police station the next day with the gun in a bag, then he’d have been very unlikely to face prosecution (although the CS might have ended up fired…)

Pagar,

But the fundamental problem is poorly drafted legislation. Until recently, Acts of Parliament were scrutinised, line by line, by the legislature, both in the Commons and Lords and the point of the legislation became finely honed in the text of each clause. The resultant statute was therefore appropriate to the purpose of the law.

In recent years, this process seems to have been largely abandoned by the use of guillotine motions and the creation of law by statutory instrument.

It is worth pointing out, I think, the sheer amount of legislation – the number of words – that Parliament ostensibly scrutinises. There just isn’t enough time. It is a terrible way to make law.

Roger Smith of Justice recently said of the Criminal Justice Act 2003, mentioned earler in the thread, that:

“It’s enormous, it’s far too big to be subject to any meaningful Parliamentary scrutiny, full of major changes to legislation and I think it was about changing perception. And there’s been this notion running through criminal justice policy in particular for the Labour government that what matters is showing the public that you’re doing something rather than actually doing it.”

The Act has 339 sections, 38 schedules and its PDF form is 476 pages.

There were 45 Acts (UK Parliament) and 1610 statutory instruments put on the statute book in 2003.

When I was with NACRO many moons ago I met a girl who had been convicted of possession with intent to supply because she had been burgled by drug addicts who left their drugs behind and, suspecting she knew who the burglers where, tried to use those drugs to bargain for the return of her property. Unfortunately she told the police exactly what she intended to do.

Not smart, and obviously illegal, but you could understand her plan since the police had zero chance – and little intention – of catching the burglers themselves.

Still, this story looks remarkably like those that The Sun and Mail are wont to run and for which they are berated.

“I wonder if the judge in this case informed the jury of their right to nullify?”

I am told that nullification might as well be non-existent so far as legal professionals are concerned. And since it in the end, it is merely a practice/convention rather than an instruction, it is arguable that the right to nullify has simply disappeared through non-use.

There is no right to nullify. There is a de facto freedom to refuse to convict.

Since 2003, the authorities in England and Wales can prosecute again if they have new and compelling evidence and the Court of Appeal has quashed the acquittal.

@29/30: a jury has, and continues to have, a right to acquit for any reason it sees fit – indeed, for jurors to publicly discuss why they reached the verdict they reached is illegal. The recent changes have no bearing on that, as they only apply to evidence that wasn’t presented to the first jury.

“Jury nullification” is a weird Americanism, and doesn’t really add any value to the simple fact that the jury decides whether or not the evidence proves that the defendant is guilty, and if they acquit then that’s final.

john b @31, I’m thinking of the word ‘right’ in its legal sense, and see Lord Justice Auld:

101 However, although juries may have the ability to dispense with or nullify the law, they have no right to do so. Indeed, it is contrary to their oath or affirmation “faithfully [to] try the defendant and give a true verdict according to the evidence”. But, at present there is no procedural means of stopping them exercising their ability to return what in law may be a perverse verdict of not guilty[119] or, to the extent that it is undetectably perverse, of guilty.

>“Jury nullification” is a weird Americanism, and doesn’t really add any value to the >simple fact that the jury decides whether or not the evidence proves that the >defendant is guilty, and if they acquit then that’s final.

The term may or may not be an Americanism, but the legal concept is British. It was established in English law in 1670 in connection for the trial of William Penn and William Mead for Tumultuous Assembly.

Jury nullification is controversial. Juries are not usually informed of the possibility of jury nullification because the conservative view is that it is a power, not a right. This means that they ought not to do it, but if the jurors do, the state has no recourse.

See:
http://en.wikipedia.org/wiki/William_Penn#Persecutions
http://en.wikipedia.org/wiki/Bushel%27s_Case

It seems obvious that what this man needed to do was, pick up the phone and call 999, advise them that he had found a shot gun and wait a few minutes for it to be picked up, likely by firearms offices trained to make it safe.

The gun may have been used in a murder or other crime and should have been left as undisturbed as possible. This to allow police to check for evidence that could be crucial to solve a case – now contaminated and four days late!

There is no licence that this man or any civilian could have had to carry this gun as I belive it was a sawn off shot gun which is illegal for anyone to own.

This man also shouldn’t have waited 4 days to take in the weapon. During his initial phone call he should have made the police aware of what he had found so that they could make arrangements for the safe retrieval and give him advice on how to proceed.

You have to ask what he was doing with the gun for 4 days?

I don’t think he should get 5 years, bit much but this man obiously has no common sense.

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