Grave danger

The Virginia Tech university massacre has once again brought the lack of gun control in the United States to the front page of every newspaper. We, too, have experienced a wave of violent shootings in London this year which can only serve to reinforce the view that firearms must be tightly controlled, and those who set out to use them in the furtherance of crime can expect no leniency from the courts.

New sentences

Mandatory minimum sentences of at least five years in the case of an adult were introduced under the Criminal Justice Act 2003 for unauthorised possession of most handguns and other specified weapons and ammunition of a particularly dangerous character. Under the Violent Crime Reduction Act 2006, the relevant sections of which came into force on 6 April 2007, the range of offences to which such sentences apply has been extended.

Strong measures

In the guideline case R v Avis (1998) 1 Cr App R 420, in the wake of increasing gun crime and atrocities of our own at Hungerford and Dunblane, Lord Bingham, Lord Chief Justice, outlined the reasons for a tough approach:

'The unlawful possession and use of firearms is generally recognised as a grave source of danger to society. The reasons are obvious. Firearms may be used to take life or cause serious injury. They are used to further the commission of other serious crimes. Often the victims will be those charged with the enforcement of law or the protection of persons or property. In the conflicts which occur between competing criminal gangs, often related to the supply of drugs, the use and possession of firearms provoke an escalating spiral of violence.'

He remarked on the clear public need to discourage the unlawful possession and use of firearms, both real and imitation, and the intention of parliament expressed in a continuing increase in maximum penalties. He stated that, save for minor infringements, offences 'will almost invariably merit terms of custody, even on a plea of guilty and in the case of an offender with no previous record.'

Minimum sentences

Under the Criminal Justice Act 2003, a new section 51(A) was inserted into the Firearms Act 1968, imposing for the first time a minimum custodial sentence, for an offence under s 5, namely the unauthorised possession, purchase, acquisition, manufacture, sale or transfer of 'prohibited' weapons and ammunition. These include firearms and ammunition which are intended solely for military use only (such as fully automatic weapons, rocket launchers, mortars, ammunition which explodes immediately on or before impact), but a range of other firearms, including most handguns, any air weapon which operates on a self-contained gas cartridge system, or any firearm which is disguised as another object. To possess, or otherwise deal with such weapons or ammunition requires the authority of the Secretary of State, which will not be easily obtained. The list of prohibited weapons and ammunition, which is set out in full in the table on the opposite page, is extensive and not very user-friendly; the terminology is confusing and inconsistent (for example in the units of measurement used), and in some cases the difference between a weapon which can be held lawfully without the Secretary of State's authority and one which cannot and attracts a mandatory minimum sentence may be paper-thin.

Under s 51A, where a mandatory minimum sentence applies, this is required to be at least five years' imprisonment in the case of an adult (or three years' detention for a 16 or 17-year-old), 'unless the court is of the opinion that there are exceptional circumstances relating to the offence or the offender which justify its not doing so.'

Violent Crime Reduction Act 2006

The Violent Crime Reduction Act 2006 extends the mandatory sentence requiremnts considerably. First, s 30 extends the application of s 51A to other serious offences under the Firearms Act 1968 involving the criminal use of such weapons, namely possession of a firearm or ammunition with intent to endanger life (s 16), possession of a firearm with intent to cause fear of violence (s 16A), use of a firearm to resist arrest (s 17), carrying a firearm with criminal intent (s 18), carrying a firearm in a public place without lawful authority or reasonable excuse (s19), and trespassing in a building with a firearm (s 20(1)). Whilst the extension only applies where a firearm or ammunition specified in s 5(1) or (1A) is involved, difficulties could foreseeably arise: for example where a person with s 5 authority, transporting such an item, makes a stop en route which he is subsequently unable to justify as necessary; in those circumstances he may well be guilty of the offence under s 19, and, on the face of it, would be facing a mandatory minimum sentence.

Using another to mind a weapon

Secondly a new offence is created, under section 28, of using another to mind a weapon. The offence is committed where a person (a) uses another to look after, hide or transport a dangerous weapon for him and (b) does so under arrangements or in circumstances that facilitate, or are intended to facilitate, the weapon being available to him for an unlawful purpose. The circumstances in which a dangerous weapon is to be regarded as available to a person for an unlawful purpose include any case where (a) the weapon is available for him to take possession of it at a time and place; and (b) his possession of the weapon at that time and place would constitute, or be likely to involve or lead to the commission by him of an offence. 'Dangerous weapon' is defined to include a firearm other than an air weapon. Where the firearm is one subject to general prohibition, a minimum term of five years' imprisonment in the case of an adult (three years 'detention in the case of a 16 or 17-year-old) is mandatory, unless once again there are 'exceptional circumstances' relating to the offence or to the offender which justify its not doing so.

Exceptional circumstances

In R v Rehman and Wood [2006] 1 Cr. App. R. (S) 77, the Court of Appeal had to consider how these mandatory minimum sentencing provisions should apply, and in doing so exercised considerable creativity in statutory interpretation. Lord Woolf, Lord Chief Justice, in delivering the judgment said:

'So far as we can determine the rationale of Parliament, the policy was to treat the offence as requiring a minimum term unless there were exceptional circumstances, not necessarily because the offender would be a danger in the future, but to send out the deterrent message'¦ The mere possession of firearms can create dangers to the public. The possession of a firearm may result in that firearm going into circulation.'

He went on to say that, given that rationale, the provision was one that was capable of being arbitrary. He noted that the offences differed from the vast majority of criminal offences, in that they are absolute offences, the consequence being ' that an offender may commit the offence without even realising that he has done so.'

In considering the impact of the European Convention, under which Articles 3 and 5 prohibit the deprivation of liberty on an arbitrary and disproportionate basis (R v Governor of Brockhill Prison ex p Evans [2003] WLR 843), the Court found that the Criminal Justice Act 2003 had been passed by Parliament in the knowledge that it had to comply with the Human Rights Act 1996, and that they could read and give effect to the legislation in a way which was compliant with Convention rights. A holistic approach must be taken to 'exceptional circumstances' (following R v Offen and others [2001] All ER 154, which considered similar provisions which now apply in relation to second convictions for specified serious offences such as rape); in the words of Lord Woolf:

'There will be cases where there is a single striking feature, which relates either to the offence or the offender, which causes that case to fall within the requirement of exceptional circumstances. There can be other cases where no single factor by itself will amount to exceptional circumstances, but the collective impact of all the relevant circumstances truly makes the case exceptional.'

The Court therefore found that the circumstances are exceptional for the purposes of section 51(A), if it would mean that to impose the mandatory minimum term would result in 'an arbitrary and disproportionate sentence.' In arriving at this formula, the Court found a way for judges to avoid imposing the mandatory minimum sentence in cases where they felt it would be unjust to do so.

In the case of Mr Rehman, a 24-year-old of impeccable character who had purchased a model gun to display, not knowing that it had various features which made it unlawful, the Court felt able to quash the sentence of five years and substitute a period of 12 months. Mr Wood was not so fortunate, however. A 41-year-old collector of guns, also of very good character, he was sentenced in relation to a shotgun with a shortened barrel which he had inherited from his grandfather. The Court reluctantly upheld the minimum five-year sentence in his case, stating that to do otherwise would be to fail to properly apply the statutory provision imposed by Parliament. The distinction between the two, seems to have been that Mr Wood was experienced enough that he should have understood that the shotgun was not the sort of weapon which should have been in his possession.

Unfortunately, therefore, the decision in R v Rehman and Wood does not amount to a judicial get-out clause, allowing judges to disregard the mandatory minimum sentence provisions in those cases where the mitigation is substantial, or, indeed, that the Court of Appeal will necessarily intervene where a sentence is imposed which is on the face of it excessive. The exceptional circumstances argument should be fully addressed in front of the judge at first instance, because, as Lord Woolf made clear: 'unless the judge is clearly wrong in identifying exceptional circumstances when they do not exist, or clearly wrong in not identifying exceptional circumstances when they do exist, this court will not readily interfere.'

As Mr Wood discovered to his cost, the legislative requirements in relation to firearms offences are never to be taken lightly, and several recent cases have confirmed that when the question of a mandatory minimum sentence arises the Court of Appeal will take some convincing before being satisfied that exceptional circumstances do in fact exist (e.g. R v K [2007] CA (Crim Div) 2.3.2007, AG's Reference (no7 of 2007) sub nom R V Bradstock [2007] CA (Crim Div) 26.3.2007).

Looking to the future

Only a short time ago the idea of mandatory minimum sentences was altogether outside our concept of individual justice. In R v Avis, still a leading case in the sentencing of firearms cases, Lord Bingham said that given the factual and personal diversity of cases, 'any formulaic approach to levels of sentencing would be productive of injustice in some cases. Even offences which on their face appear to be very grave may on examination turn out to be less so.'

No Government in the foreseeable future is likely to take a more relaxed view towards firearms, and, if the trend continues, one can expect to see even more restrictive gun laws and tougher sentencing. Given the increased number of offences to which they now apply (including other serious offences as well as firearms), mandatory minimum sentences are likely to be encountered rather more frequently in years to come. The wise words of Lord Bingham, of only a decade ago, seem a somewhat distant memory, and defence lawyers will need to be increasingly persuasive and judges increasingly imaginative if injustices are to be avoided.

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