Robert Lowe V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Carloway,Lord Reed |
| Neutral Citation | [2008]HCJAC 41 |
| Court | High Court of Justiciary |
| Date | 10 July 2008 |
| Docket Number | XC37/08 |
| Published date | 10 July 2008 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Reed Lord Carloway |
[2008]HCJAC 41 Appeal No: XC37/08 OPINION OF THE COURT delivered by LORD CARLOWAY in the NOTE OF APPEAL AGAINST SENTENCE by ROBERT LOWE Appellant against HER MAJESTY'S ADVOCATE Respondent ________________ |
Act : Jackson QC; McClure Collins
Alt : K Stewart, AD; Crown Agent
10 July 2008
Section 51A of the Firearms Act 1968 (c 27) provides that, where a person over the age of 21 is convicted of an offence under section 5(1)(aba), the court shall impose a sentence of at least five years imprisonment unless "the court is of the opinion that there are exceptional circumstances relating to the offence which justify its not doing so". Section 5(1)(aba) prohibits the possession of certain firearms, including pistols.
On 9 October 2007 the appellant pled guilty, under the procedure for accelerated pleas provided by section 76 of the Criminal Procedure (Scotland) Act 1995 (c 46), to a contravention of section 5(1)(aba) in respect of a pistol found by the police locked in a safe in his house on 30 November 2006. At that time, the appellant had been a hospital in-patient following a feud with his cousin Nathaniel Lowe, who lived across the road. It was his cousin who had provided the information about the appellant having the gun, which he had handed to the appellant at some indeterminate time.
The pistol was a Derringer type double barrelled gun, which had been converted from a replica by having its blocked barrels replaced. The replacement barrels were 6.8 cm long. The gun was capable of firing .22 calibre bullets. A proof in mitigation was held because of conflicts in information about: (i) the circumstances in which the gun had come into the possession of the appellant; (ii) the appellant's belief about the nature of the gun; and (iii) the permanency of the gun's location in the safe. Having heard the testimony of the police, the appellant and his cousin, the sentencing judge determined that he was not prepared to accept the appellant as entirely credible and reliable. In his Report, he explains that this was partly because of his demeanour in the witness box, partly because of his lack of candour and partly because of conflicts in his testimony when compared with agreed fact. The effect of the sentencing judge's assessment of the appellant was that there was no satisfactory or acceptable explanation for the appellant's possession of the gun.
In maintaining that there were exceptional circumstances in terms of the legislation, the appellant pointed to a number of different factors:
1. The source of the gun was the appellant's cousin; the very person who had reported its existence to the police. However, although the appellant's counsel submitted that the appellant was keeping the gun safe for his cousin, the sentencing judge was not prepared to accept that as fact. The judge did accept that the gun had come from the cousin but not when or why that had occurred;
2. The size of the gun. It was described as tiny and, it was submitted, the type of gun that might be carried by a woman in her handbag. At the same time, it was submitted that it looked like a starting pistol. It is not the Court's understanding that a Derringer is similar to a starting pistol. It is also not the Court's understanding that a Derringer is a weapon of choice of a particular gender. Rather...
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