Gail Cochrane V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Reed,Lord Carloway,Lord Marnoch |
| Neutral Citation | [2010] HCJAC 117 |
| Date | 18 November 2010 |
| Published date | 17 November 2010 |
| Year | 2006 |
| Court | High Court of Justiciary |
| Docket Number | XC427/10 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Reed Lord Carloway Lord Marnoch | [2010] HCJAC 117 Appeal No: XC427/10 OPINION OF LORD REED in the Appeal of GAIL COCHRANE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Gilfedder, Solicitor-Advocate; Paterson Bell
Respondent: Ogg QC, AD; Crown Agent
18 November 2010
Introduction
[1] The appellant pleaded guilty in the High Court to two charges under the Firearms Act 1968. The first charge was that on 17 June 2009 she had in her possession a firearm, namely a 7.65 millimetre Browning self-loading pistol, without holding a firearms certificate, contrary to section 1(1)(a) of the Act. The second charge related to the possession of the same weapon on the same date, and was that the pistol was a prohibited weapon, contrary to section 5(1)(aba) of the Act. In terms of section 51A of the Act, the court was required to impose a sentence of at least five years' imprisonment in respect of charge 2, unless it was of the opinion that there were exceptional circumstances relating to the offence or to the offender which justified its not doing so. The sentencing judge concluded that there were no exceptional circumstances. She accordingly imposed a sentence of five years' imprisonment in respect of charge 2, and a concurrent sentence of five years' imprisonment in respect of charge 1. The appellant has appealed against those sentences.
The legislation
[2] Section 51A was inserted into the 1968 Act by section 287 of the Criminal Justice Act 2003, and came into force on 22 January 2004. So far as relevant, and as amended, it provides:
"(1) This section applies where -
(a) an individual is convicted of -
(i) an offence under section 5(1)(a), (ab), (aba), (ac), (ad), (ae), (af) or (c) of this Act, ...
(ii) an offence under section 5(1A)(a) of this Act, or
(iii) an offence under any of the provisions of this Act listed in subsection (1A) in respect of a firearm or ammunition specified in section 5(1)(a), (ab), (aba), (ac), (ad), (ae), (af) or (c) or section 5(1A)(a) of this Act, and
(b) the offence was committed after the commencement of this section and at a time when he was aged 16 or over.
...
(2) The court shall impose an appropriate custodial sentence (or order for detention) for a term of at least the required minimum term (with or without a fine) unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so.
...
(4) In this section "appropriate custodial sentence (or order for detention)"means -
...
(b) in relation to Scotland -
(i) in the case of an offender who is aged 21 or over when convicted, a sentence of imprisonment...
...
(5) In this section "the required minimum term" means -
...
(b) in relation to Scotland -
(i) in the case of an offender who was aged 21 or over when he committed the offence, five years...."
This appeal is primarily concerned with subsection (2) of section 51A, and in particular with the question whether "exceptional circumstances relating to the offence or to the offender" exist in the present case.
The relevant case law
[3] Section 51A of the 1968 Act was modelled on earlier provisions such as section 2(2) of the Crime (Sentences) Act 1997, which required the imposition of a mandatory life sentence upon a person's second conviction for a serious offence unless the court was of the opinion that there were exceptional circumstances relating to the offence or to the offender which justified its not doing so. Section 2(2) was considered in R v Kelly (Edward) [2000] QB 198, where Lord Bingham of Cornhill CJ gave a construction of "exceptional" which has been followed in later cases. He said, at page 208:
"We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered."
[4] Following the entry into force of the Human Rights Act 1998, section 2(2) was considered again in R v Offen [2001] 1 WLR 253, where it was observed by Lord Woolf CJ at paragraph 79 that the rationale of the section should be highly relevant in deciding whether or not exceptional circumstances existed:
"The question of whether circumstances are appropriately regarded as exceptional must surely be influenced by the context in which the question is being asked. The policy and intention of Parliament was to protect the public against a person who had committed two serious offences. It therefore can be assumed the section was not intended to apply to someone in relation to whom it was established there would be no need for protection in the future. In other words, if the facts showed the statutory assumption was misplaced, then this, in the statutory context, was not the normal situation and in consequence, for the purposes of the section, the position was exceptional."
That reasoning was approved by the House of Lords in the subsequent case of R v Drew [2003] 1 WLR 1213, which concerned the interpretation of a similarly worded provision in section 109 of the Powers of Criminal Courts (Sentencing) Act 2000.
[5] The principal issue raised in R v Offen was however the impact of the Human Rights Act 1998, and in particular of Article 5 of the European Convention on Human Rights, upon the interpretation of section 2(2) of the 1997 Act. It was accepted that the overall purpose of Article 5 was to ensure that no-one was deprived of his liberty in an arbitrary fashion. Under reference to the speech of Lord Hope of Craighead in R v Governor of Brockhill Prison, Ex p Evans (No 2) [2001] 2 AC 19 at pages 37 to 38, the court accepted that the imposition of a sentence of life imprisonment which was arbitrary and disproportionate would contravene Article 5. The court resolved the problem, as Lord Bingham observed in Drew at paragraph 20, by taking advantage of the interpretative licence conferred by section 3 of the 1998 Act. The court concluded, at paragraph 97:
"Section 2 establishes a norm. The norm is that those who commit two serious offences are a danger or risk to the public. If in fact, taking into account all the circumstances relating to a particular offender, he does not create an unacceptable risk to the public, he is an exception to this norm."
[6] This reasoning was applied by the Court of Appeal, mutatis mutandis, when it considered section 51A of the 1968 Act in the case of R v Rehman and Wood [2006] 1 Cr App R (S)77. The court noted at paragraph 12 that the focus of section 51A was different from that of the provision considered in Offen:
"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 to which we have already referred. The mere possession of firearms can create dangers to the public. The possession of a firearm may result in that firearm going into circulation. It can then come into possession of someone other than the particular offender for example by theft in whose hands the firearm would be a danger to the public. Parliament has therefore said that usually the consequence of merely being in possession of a firearm will in itself be a sufficiently serious offence to require the imposition of a term of imprisonment of five years, irrespective of the circumstances of the offence or the offender, unless they pass the exceptional threshold to which the section refers. This makes the provision one which could be capable of being arbitrary. This possibility is increased because of the nature of s.5 of the Firearms Act. This is different from most sections creating criminal offences. In the majority of criminal offences there is a requirement that the offender has an intention to commit the offence. However, firearms offences under s.5 are absolute offences. The consequence is that an offender may commit the offence without even realising that he has done so. That is a matter of great significance when considering the possible effect of s.51A creating a minimum sentence."
The court returned to the latter point at paragraph 14:
"It is to be noted, as already pointed out, that part of the context is that s.5 of the Firearms Act creates an absolute offence. Secondly, the purpose of the provision is to ensure that absent exceptional circumstances the courts will always impose deterrent sentences. However, it is to be noted that if an offender has no idea that he is doing anything wrong, a deterrent sentence will have no deterrent effect upon him. The section makes clear that it is the opinion of the court that is critical as to what exceptional circumstances are. 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."
The court also observed, at paragraph 15, that the reference in section 51A to the circumstances of the offender was most important; and it gave some examples of personal circumstances which would be relevant. It emphasised, at paragraphs 11 and 15, the importance of considering the circumstances of each case as a whole before concluding whether exceptional circumstances exist. The court concluded, at paragraph 16:
"We consider that the words are clearly capable of being interpreted as complying with the Convention. This is an interpretation which is made easier by the fact that Parliament passed the provision as part of the 2003 CJA which was passed in the knowledge that the section had to comply with the Human...
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