The Dangers of calling 'Shotgun!'

Oh, I wish this was a blog post about someone who rode shotgun in a car and it resulted in their untimely death. That would be much funnier and, far less infuriating than what I am going to blog about. Quite a few people in the twittersphere and blogosphere, such as the wonderful Jack of Kent and slightly mental Constantly Furious, have already done this story to death. But I thought I'd give the thing a few kicks while it's down because a.) I've got nothing else to blog about and b.) I'm a coward that can only attempt to kill something that's already dead. For those who don't know, there was once a man called Paul Clarke (still is, actually, unless the death penalty has been instated for possession of a firearm...). He saw a black bag at the bottom of the garden, looked inside, and saw that it was a sawn-off shotgun (for those who don't play GTA IV, that's a shotgun that's been shortened to make it easier to conceal. For teh gangstaz, yeh?). He took that shotgun to the police station, after a strange four day lag, and was arrested. He was charged and found guilty of possession of a firearm, although today he was sentenced to a 12 month suspended sentence.

As a law student, I’m not particularly interested in the dodgy circumstances surrounding this case (such as Mr Clarke sleeping with one of the detectives), unless they are relevant to the law. The law on this matter is rather simple. It is a crime of strict liability, which means that it requires only an act, rather than most other crimes which require both an act and a mental element, such as intention or negligence. Thus, simply the act of possessing the gun is enough to make one guilty of this crime. There are, however, some safeguards. Firstly, the CPS has some pretty clear guidelines on when to prosecute, and won’t prosecute if it is not in the public interest.

This case, as some would have us believe, is not as simple as “Man hands in gun to police station and gets arrested for it!” In those circumstances, the CPS would certainly not prosecute. This is a case of “Man finds gun. Waits four days. Man hands in gun to police and gets arrested.” The crucial element is that four day lag. The Judge, when sentencing, described it as ‘very odd’. To quote Lt Aldo Raine:

“We got a word for that kinda odd in English. It’s called suspicious’.

From that four day lag, it could be inferred that Mr Clarke intended to commit a crime with the weapon, but changed his mind and decided to hand it in to the police station. Personally, I don’t believe that was the case but that is certainly not self-evident. So, I don’t blame the CPS for prosecuting under those circumstances.

Since possession of a firearm is a strict liability offence, there really wasn’t much that Mr Clarke could do to defend himself. He certainly had possession of the firearm, there was no denying that. His only route out would have been an ‘exceptional circumstance’; namely, the defence of duress of circumstances. In the case of Pommell (1995), a man was found in bed with a loaded gun. He argued that he had taken the gun off someone who intended to commit a crime, and was going to hand the gun into the police station the next day. That defendant was granted the defence of duress of circumstances, because he acted to avoid a threat of death or serious injury to others. In other words, he committed a crime to prevent a greater evil, and was excused for it (i.e. necessity, but the courts don’t like us to use that word…Ssshhh!). Unfortunately for Mr Clarke, he was not acting to prevent a threat of death or serious injury, and thus the defence of duress of circumstances/necessity could not be available to him.

And so, Mr Clarke was found guilty by the jury of possession of a firearm and faced five years in jail. At this point, the judge should have been lenient. He said it himself: “It is an exceptional case because you took this weapon to the police station to hand it in." Under the statute, the defendant should receive a prison sentence unless there were exceptional circumstances which meant the offence did not justify a prison sentence. Quite frankly, it is astounding that Mr Clarke handing the gun into the police station was held not to be an exceptional circumstance (even though it was called an exceptional case by the judge, although maybe ‘case’ doesn’t quite mean ‘circumstance’?). Mr Clarke should have been absolutely discharged by the judge, to signal that while Mr Clarke did commit a crime, he was not in any way blameworthy and that the proceedings were a waste of time.