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.

http://securityscene.wordpress.com

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

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.

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.

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.

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.

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.

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…)

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.

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.

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.

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.

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……….

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).

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.

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.

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.

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.

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.

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.