R v Rehman; R v Wood
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 18 July 2005 |
| Neutral Citation | [2005] EWCA Crim 2056 |
| Docket Number | No: 2005/00774/A9 |
| Court | Court of Appeal (Criminal Division) |
| Date | 18 July 2005 |
[2005] EWCA Crim 2056
The Lord Chief Justice of England and Wales
(The Lord Woolf of Barnes)
Mr Justice Goldring
Mr Justice Walker
No: 2005/00774/A9
2005/00658/A1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
MR J HARDY appeared on behalf of THE APPELLANT ZAKIR REHMAN
MR S FARRELL QC and MR A MARRS appeared on behalf of THE APPELLANT GARY WOOD
MISS S BENNETT-JENKINS appeared on behalf of THE CROWN
Monday, 18 July 2005
THE LORD CHIEF JUSTICE:
Introduction
Both these appeals against sentence are listed together so that this court may consider the application and interpretation of the mandatory minimum sentencing provisions in respect of offences committed contrary to section 5 of the Firearms Act 1968 ("the Firearms Act"). The provisions were inserted into the Firearms Act as section 51A of that Act by section 287 of the Criminal Justice Act 2003 (the " CJA").
Section 51A of the Firearms Act has been effective since 22 January 2004. Section 51A provides so far as relevant:
"(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, or
(ii an offence under section 5(1A) of this Act, and
(b) the offence was committed after the commencement of the 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 …. means'
(a) in relation to England and Wales —
(i) in the case of an offender who is aged 18 or over when convicted, a sentence of imprisonment ….
….
(5) In this section 'the required minimum term' means —
(a) in relation to England and Wales —
(i) in the case of an offender who was aged 18 or over when he committed the offence, five years ….
…."
This appeal is primarily concerned with subsection (2) of section 51A. More particularly it is concerned with what is capable of constituting "exceptional circumstances relating to the offence or the offender" for the purpose of section 51A. Section 51A of the Firearms Act sets out a series of circumstances in which it is unlawful to be in possession of, or purchase, or acquire, or manufacture, or sell, or transfer a list of different firearms. Of that list one which is selected for falling within section 51A is (aba): any firearm which either has a barrel less than 30 centimetres in length or is less than 60 centimetres in length overall, other than an air weapon, a muzzle-loading gun or firearm designed as a signalling apparatus.
The weapons, with which we are concerned, are ones in relation to which Parliament by section 51A has signalled it was important that there should be imposed deterrent sentences. By "deterrent sentences" we mean sentences that pay less attention to the personal circumstances of the offender and focus primarily upon the need for the courts to convey a message that an offender can expect to be dealt with more severely so as to deter others than he would be were it only his personal wrongdoing which the court had to consider.
In the case of Mr Rehman his sole conviction was for having in his possession a firearm which fell within section 5(1)(aba) of the Firearms Act. In the case of Mr Wood it was count 9 on the indictment which involved such a weapon. When we come to examine the circumstances of Mr Wood's sentence, the fact that one of the weapons falls within the category, possession of which involves contravening section 5(1)(aba) of the Firearms Act, is a matter of considerable importance.
The appellants' submissions
The first submission which is made by Mr Farrell QC on behalf of the appellant Gary Wood is that the mandatory minimum sentence of five years' imprisonment is incompatible with the European Convention on Human Rights. Mr Farrell submits that section 51A requires the court to impose sentences that constitute inhuman and degrading treatment or punishment that contravenes Article 3 of the European Convention on Human Rights. Sentences which could result in arbitrary and disproportionate deprivation of liberty in violation of Article 5 or Articles 3 and 5 when read together. He submits that it is not possible to read down section 51A so as to make it compatible with Mr Wood's rights under the Convention. Accordingly Mr Farrell seeks a declaration to that effect. Mr Farrell did not appear in the court below and it was only at a late stage that he was able to deliver a skeleton argument raising this point for the first time.
Mr Hardy, who appears on behalf of the appellant Mr Rehman (although he did not appear below) does not adopt this submission. As the contention is dependent on the proper interpretation of section 51A, we do not propose to deal with Mr Farrell's first submission until we have set out our views on his next submission because it is only when we have set out our views as to how section 51A(2) is to be interpreted that there can be any question of incompatibility. In those circumstances Mr Farrell has reserved his full argument on incompatibility until he has had an opportunity of considering this judgment. This has an advantage because if we were going to contemplate acceding to his first submission, we would adjourn so that the necessary notice can be given to the Crown under section 5 of the Human Rights Act and the relevant Criminal Procedure Rules.
The second submission upon which Mr Farrell relies is a submission which is supported by Mr Hardy on behalf of Mr Rehman. It is as to the proper interpretation of section 51A(2), having regard to the obligation of the court under section 6 of the Human Rights Act 1998 and section 3(1) of that Act. These sections require the court not to act in a way which is incompatible with a Convention right and as far as it is possible to do so, to give effect to primary legislation in a way which is compatible with Convention rights. Insofar as it is necessary to do so, Mr Farrell and Mr Hardy both contend that it is necessary so as to achieve compliance with the Convention to give a wide interpretation to the reference to "exceptional circumstances" in section 51A.
The third issue that arises on the appeal, which has been the subject of submissions by both Mr Farrell and Mr Hardy, is whether in each case the respective trial judges should have decided that these were circumstances relating to the offence or the offender to justify not imposing the minimum sentence of five years. In Mr Rehman's case (although this is not of direct relevance because of the period he has already served in custody) it is submitted that no custodial sentence should have been imposed. In Mr Wood's case it is submitted that a lesser sentence than five years' imprisonment should have been imposed. The way the matter is put on Mr Wood's behalf is particularly relevant when we come to set out the sentences which were imposed upon him.
The Question of Interpretation
It is not necessary to set out the provisions of Article 3 and Article 5, but it is necessary to refer to R v Offen and Others [2001] 1 Cr App R 372. In Offen the Court of Appeal considered a different mandatory requirement, a mandatory requirement which created an obligation to impose a life sentence under section 2 of the Crime (Sentences) Act 1997 when a person is convicted for a second time of a serious offence. By section 2(2) of that Act the court is then obliged to impose such a sentence unless it is of the opinion that there are exceptional circumstances relating to the offences or to the offender which justify it not doing so. There is a provision in that Act requiring the court to state, when it is of the opinion that there are exceptional circumstances, what those exceptional circumstances are. There is no similar provision relating to section 51A.
In Offen the Court of Appeal adopted the general definition of the word "exceptional" given by Lord Bingham CJ in R v Kelly [2000] QB 198. Having done so, the court went on to consider the impact of the Human Rights Act 1998 in regard to the statutory provision which the court was there considering. The court also considered R v Buckland [2000] 1 WLR 1262, in which Lord Bingham CJ had stated at page 1269 that in that case on all the evidence it was safe to conclude that the defendant does not present a serious and continuing danger to the public such as could justify the imposition of a life sentence. We refer to those words of Lord Bingham in Buckland for two reasons. First, they show that he was focusing on cases requiring consideration of whether there are exceptional circumstances when there is a need to look at all the circumstance involved. Then it is not appropriate to look at each circumstances separately and to conclude that it does not amount to an exceptional circumstance. A holistic approach is needed. There will be cases where there is one 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 second reason why it is necessary to have Lord Bingham's words in mind is because the provisions that were considered in Offen...
To continue reading
Request your trial
-
Bowen (T) v R
...the appellant; Ms. T. Hutchinson, Crown Counsel, for the Crown. Case cited: (1) R. v. Rehman (Zakir), [2006] 1 Cr. App. R. (S.) 77; [2005] Crim. L.R. 878; [2005] EWCA Crim 2056, distinguished. Legislation construed: Court of Appeal Law (2006 Revision), s.9(3): The relevant terms of this sub......
-
R v Robert Dawson
...been threatened in the past and was frightened of them. 11 Miss Langevad also relies on the analysis of the minimum term provisions in R v Rehman and Wood [2005] EWCA Crim 2056; [2006] 1 Cr App R(S) 77, where Lord Woolf CJ said at [16]: “… It is clear in our judgment that, read in the conte......
-
R v Graham Stoker
...in this case. 18 Counsel has drawn our attention to the following particular cases dealing with the issue of "exceptional circumstances": R v Rehman [2005] EWCA Crim 2056, R v Brereton [2012] EWCA Crim 85 and the R v Ramzan [2012] EWCA Crim 2891. In Rehman, Lord Woolf LCJ stated at paragrap......
-
R v Hainsley Dixon Reference by the Criminal Cases Review Commission
...and to which we have referred was considered by the court presided over by Lord Woolf CJ in a case to which we have briefly referred R v Rehman and Wood [2005] EWCA Crim 2056, [2006] 1 Cr App R(S) 77. It is not necessary to refer to the facts of the case but it is necessary to draw special ......
-
Punishment and rehabilitation – Uneasy bedfellows under section 44 of the Crime and Courts Act 2013
...See Bewley (2012, p. 40).4. R. v. Rehman; R. v. Wood [2006] 1 Cr.App.R. (S) 77.5. [2010] 1 Cr.App.R. (S) 100.6. R. v. Robinson [2010] 2 Cr.App.R. (S) 20.7. See Prison Reform Trust (2012, p. 4).8. Ibid, p. 2.9. See The Howard League for Penal Reform (2012, p. 2).10. Crime, after many years o......
-
Proportionality as a Moral Process: Reconceiving Judicial Discretion and Mandatory Minimum Penalties.
...Act, 2003 (UK), c 44, s 287 [Criminal Justice Act]. (213.)Crown Prosecution Office, supra note 211, citing R v Rehman; R v Wood, [2006] 1 Cr App R (S) 77 CA, [2005] EWCA Crim 2056 (214.)Ibid, citing R v Shaw, [2011] 2 Cr App R (S) 65 CA, [2011] EWCA Crim 167. (215.)Criminal Justice Act, sup......