greater offence

It came as a shock recently to learn that possessing a stun gun/taser where it is disguised as something else carries a minimum 5 year sentence. My reaction when this was suggested was disbelief because like most people I have discussed this with it was believed that the mandatory minimum sentence for firearms should be reserved for possessing an actual gun, that can fire bullets and is lethal.

By operation of s.51Aof the Firearms Act 1968 a minimum sentence provision applies to any individual convicted of an offence under s.5(1A)(a)of the Act, that is to say an individual who possesses a disguised firearm. The minimum sentence provisions in their relevant part read as follows:

“Section 51A(2)

The court shall impose an appropriate custodial sentence ……for a term of at least the required minimum term……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.

(5) In this section the ‘required minimum term’ means –

(a)(1) ….5 years”

The mandatory sentence was brought in to tackle ‘gun crime’. So how can it be right to impose such a long and punitive sentence for having an item that is available to purchase from Amazon? See the Guardian's report here

Although I think it is stretching language a bit I don’t really complain that a taser is considered to be ‘a firearm’, the point was argued in 1988 in the case of Flack v Baldry ((1988) 1 All.ER 673) ‘it is accepted as a matter of practice that a “stun gun” such as this, which discharges an electrical discharge, is a firearm.’ These items are ‘prohibited weapons’ and rightly so, not least because the state has the power to use them on its citizens.

So how do we get from a taser which incapacitates using an electrical charge, to having a mandatory sentence of 5 years. Openshaw J. in Brereton explains the position; “Thus, as a matter of law, there is a specific offence for a weapon designed to discharge a noxious liquid, gas or “other thing” … this weapon was disguised as a mobile phone. Despite the fact it is not a firearm in the ordinary sense of firing a projectile, Parliament has provided that such a disguised weapon falls within the minimum sentence provisions. He went on “Parliament has passed these laws for a purpose”. Correct, but the purpose was to tackle ‘gun crime’, it was to create a deterrent to mainly young men who were using guns which caused enormous risk to innocent members of the public who could be caught in the cross fire. See the transcript of the debate in Westminster on gun crime here

Nevertheless the only possible way to avoid the statutory minimum is to argue exceptional circumstances. Arguing that the law is daft wouldn’t cut it. In Attorney General's Reference No. 82 of 2012 (Robert Downes), the sentencing judge had found exceptional circumstances, part of the argument made on the defendants behalf was that the weapons were not lethal. The Court of Appeal rejected that approach and imposed the 5 year minimum. The cases seem to show some sympathy with defendants prosecuted for these offences and it is well known Courts are often opposed to mandatory sentences. Exceptional circumstances concern the offence and the offender and this allows for a wide interpretation, see for example Ramzan (2012, A-G Ref (no 82 of 2012), Zhekov (2013), Rehman, but the creativity of Judges should not be relied upon to mitigate bad law.

By Damian Wall

Burton Copeland