As explained in my previous post on answering problem questions, there are generally two elements to be proved in order to convict someone for the commission of a crime – the actus reus and mens rea. Criminal liability generally attaches where the Defendant has the intent to do an illegal act (mens rea) at the time he carried out the illegal act (actus reus).
Further, criminal offences are divided into categories on the basis of their mens rea (mental element):
Specific Intent crimes include murder, s18 OAPA (wounding or inflicting GBH with intent) and s21 Theft Act (blackmail) and the other dishonesty offences. In these types of cases, the Prosecution has to show “the intent to accomplish the precise criminal act that one is later charged with”. (Black’s Law Dictionary)
Most crimes fall into the Basic or General Intent/Recklessness category (such as criminal damage, manslaughter and assault) and require the Prosecution to prove, “subjective recklessness” – that is, did the Defendant foresee that the consequences of his actions were possible. The leading case is, for the purposes of criminal damage, R v G [2003] 3 WLR 1060.
There is a third category – the no intent crimes of Strict Liability where, “liability does not depend on actual negligence or intent to harm..” (Black’s Law Dictionary).
The no intent crimes of strict liability include many motoring offences (nobody cares why you were speeding, driving and texting, driving drunk etc, you just were and that’s enough), sex with children under 13 (she looked 18 to me is not a defence in law) and, as Paul Clarke discovered recently, possession of a firearm.
In the video above, Paul Clarke says he: saw a bag of rubbish, took it inside, opened it up and realised there was a gun in the bag. He waited until the next day to ring the police, telling them he had “something to give them”, but only brought the gun in to the police four days after he found it.
As you will see, the judge correctly held that Mr Clarke had no defence in law and the jury found him guilty of possessing a firearm contrary to s5 of the Firearms Act 1968.
Mr Clarke’s solicitor and many legal bloggers such as Charon QC and Jack of Kent are of the view that Mr Clarke is wrongly being punished for doing his civic duty and, in any event, possessing a firearm should not be a strict liability crime. They, like Mr Clarke’s solicitor, consider Mr Clarke’s conviction an injustice that will deter people from contacting the police.
I don’t.
Firstly, it’s tough – but ignorance of the law is no excuse.
But let’s hang on a moment. What would you do if you saw a strange bag in your garden? Would you pick it up, take it into your house and then look to see what was inside? I think I would look at it where I found it.
On discovering it was a gun, what would you do? Casually walk into the the police station with it four days after you found it?
On seeing a bag in my garden contained a gun, I think I would consider that someone might be intending to use it and immediately ring 999. I just can’t see myself touching it – and I definitely can’t see hanging on to it for four days.
Call me crazy.
So, I don’t know about you, but I’m struggling to see the “injustice” here. Not only was Paul Clarke in technical breach of the strict liability law – his story is incredible. The Crown Prosecution Service had no basis upon which to exercise the discretion they have in deciding whether to prosecute.
Had Paul Clarke rung 999 and told them he’d just found a gun “when he opened the bag in his house”, I might have some sympathy – but the fact is, he possessed the gun for four days before “doing the right thing” and his story does not have a ring of truth to it.
Further, and while gun and gang related crime blights our youth and inner cities, it is wholly legitimate for the Government to deal with firearm possession just as seriously as the other no intent crimes of strict liability.
NB (18 December 2009)
Paul Clarke was given a 12 month suspended sentence on the basis of “exceptional circumstances”. Judge Christopher Critchlow told Mr Clarke: “‘Your account seems somewhat implausible but I am not prepared to find, bearing the burden and standard of proof and that I must be sure upon such matters, that it was other than as you have maintained.”
The Daily Mail’s article on today’s sentencing hearing.
Surely the problem here is the combination of strict liability and a minimum sentence of 5 years ?
Leaving aside the fact that the police could have used their discretion in this case (as they surely do in most cases where members of the public hand in a found weapon), I believe that both the CPS and the jury made the correct decisions from a legal point of view.
Bizarre though the case is, surely events have since demonstrated that it was the public interest to proceed, if only to bring this area of legislation into the spotlight ? Furthermore, the CPS was correct in its belief that there was a good chance of a conviction. Similarly, the jury didn’t really have much work to do here (other than voicing concerns about whether a guilty verdict was fair, perhaps).
No – it’s the minimum sentence that’s the problem here. Wouldn’t you agree that it’s a textbook case of the blunt force of the legislature conflicting with the requirements of the judiciary to be fair and balanced ?
I agree that 5 years is harsh in this instance – considering people do a lot more and get a lot less. The judiciary definitely should be able to judge what the appropriate sentence is within a less draconian guideline.
Having said that, every gansta would roll out the “I found it”, “my boyfriend asked me to hold it” etc mitigation and the law could become meaningless.
I think he’s guilty and that there should be a tough penalty. This is the link to the Sentencing Guidelines. The general rule is a 5 year minimum – but there is room to manoeuvre.
If I were Clarke’s lawyer, I’d be arguing “exceptional circumstances”, get some expert medical evidence in fast and hope for a reasonable explanation why he held on to a sawed off shotgun in his flat for 4 days…
“But let’s hang on a moment. What would you do if you saw a strange bag in your garden? Would you pick it up, take it into your house and then look to see what was inside? I think I would look at it where I found it.”
This is a subjective statement, you have no knowledge of his garden, it might have been dark for example. You’re not in a position to comment on the reasonableness of that action.
“his story is incredible”
His story is not even slightly incredible, first of all he’s an ex-soldier, having an unloaded firearm in his house for a day or four is not likely to unnerve him in the way it seems to unnerve you. There are plenty of similar instances, I can think of three straight off the top of my head, one in London and the others in the West Midlands.
Note also that Home Office Guidance to Police specfically says that the police should create a climate to encourage people to hand in guns – there is nothing in law or in guidance whatsoever about having to call 999. Even if he had been in possession for years, this prosecution does not serve the public interest – which is what CPS is supposed to take into account. It will without doubt create an environment that discourages people from handing in unlawfully possessed firearms.
You might want to familiarise yourself with some other legal principles such as De Minimus Non Curat Lex and also R v. Fegan which is a case from Northern Ireland in 1972 which sets out a legal principle whereby there is a defence to a charge of possession of a firearm without lawful authority.
Steve,
Parliament’s made clear they don’t consider firearms possession “a trifling matter”. The Firearms Act as amended doesn’t allow any excuse – which is why it is a strict liability offence. (A “trifling matter” would be if he held on to it solely in taking it to the police station or to pick up the bag to have a look – not hanging on to it for four days.)
R v Fegan doesn’t really help Paul Clarke either. It is a NI case relating to a completely different statute – where the test was whether, “[the] explosive substance, [gave] rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object”.
The Firearms Act, as amended, does not make any mention of “reasonable suspicion” or use for a “lawful” object.
Remember also, Parliamentary Supremacy results in statute trumping case-law – and the CPS and Courts are bound by the wording of the statute.
If the law is unjust, Parliament, not the Police, CPS or Courts, will need to change it.
I can’t believe how silly the arguments here here. Let’s get back down from cloud cuckoo land for a minute.
– Clarke brought the gun to the cop shop. That is what matters. Had he wanted to act criminally, he would have kept it and told no one.
– There is a difference between trial by jury and jury trial. I presume this was a jury trial where the jury assesses the facts of the case and the judge tells them what the law is. In a trial by jury, the jury gets to assess both the facts and the law. If the law is bad, they jury can acquit.
– We have been told above that igorance is no defence. This must be the silliest argument of all. Ignorance is defence would hold under a system of natural laws (common law) where everyone knows what the law is because the law is simply what’s right (no killing, no harming, no causing any loss of freedom or property). In our current system of law, we are no actually dealing with laws but with statutes. I suggest you smart asses open up Black’s dictionary and check what a statute is in the first instance. With so many statutes on the statutes roll and many new ones coming into force almost daily, how can any one know what the “law” is ?
– Many prosecutions are actually for victimless crimes (traffic cases, parking tickets…); in fact almost all violations of statutes are victimless, there is no injured party and no one has sustained a loss. Why is this so ? Because the police and the courts are corporations, in the litteral sense of the word. Don’t believe me ? Check any business registration database such as Dun And Bradstreet and you will see that all police forces and all courts are registered corporations. They are out there to make money and the only way to make that money is to prosecute statute violations to extract fines and court costs payments from the “perpetrator”. So when people casually refer to speed cameras and the like as revenue generation devices, they are actually litterally correct even though they see it in the figurative sense.
So may I kindly suggest that you lot grow up and wake up to the fact that our “justice system” has actually nothing to do with justice.