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.