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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Peers, R. v [2021] EWCA Crim 1677 (27 October 2021) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2021/1677.html Cite as: [2021] EWCA Crim 1677, [2022] 4 WLR 7, [2022] 2 Cr App R (S) 4, [2022] Crim LR 341 |
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CRIMINAL DIVISION
Strand London WC2A 2LL |
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B e f o r e :
MR JUSTICE JEREMY BAKER
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REGINA | ||
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MIA PEERS |
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Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: [email protected]
(Official Shorthand Writers to the Court)
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Crown Copyright ©
LORD JUSTICE COULSON:
Introduction
The Background Facts
"1. Approximately 1 to 1½ weeks before her arrest Joshua Barnes attended her address and told her he wanted to store something in her understairs cupboard. He placed this item in the back of the cupboard. She did not know what the item was. He told her not to ask any questions and not to let anyone go near it. The defendant was suspicious, but it did not cross her mind that the bag would contain a firearm or ammunition.
2. The defendant began to worry about what was in the bag but was too scared to look. The bag remained in the cupboard until 28/11/20.
3. On 28/11/20 a number of armed, masked men forced their way into 14 Long Street [a neighbouring property which the appellant was visiting] and threatened the occupants. The defendant had a knife held to her throat. It became clear that they were looking for a firearm and had the wrong address. One of the men mentioned the name 'Josh'. The police were called and the men fled the scene.
4. The defendant realised that the item she had been asked to store was likely to be the weapon the men were looking for. She did say to her friend ... that she thought the attack had something to do with the item she had been asked to store. However, she was too scared to mention this to the police at the time she made her statement.
5. Having returned to her house, the defendant decided to open the bag to see what was inside. In doing so she touched the gun and magazine. Her mother attended her address, having been alerted to the fact that something serious had taken place. She then told her mother about the firearm. The police were still at the scene, outside on the street. She knew that her mother would tell the police about the firearm and she herself showed the police exactly where it was.
6. In interview on 29/11/20 the defendant told the police how she came to be storing the weapon and named Joshua Barnes, but she was too scared to tell the police that she herself had touched the weapon. She had no previous experience of police custody and had been through a terrifying ordeal the previous evening."
The Correct Procedure
"In our judgement the procedure should follow that of a Newton hearing. When a defendant wishes to rely on exceptional circumstances, these should be set out on his behalf in writing and signed by his advocate. The prosecution should then state whether they are agreed or not. If they are not agreed, then the defendant can then decide whether to seek a hearing, with the consequence that if he is disbelieved he will lose some of the credit to which he would otherwise be entitled. If the circumstances are agreed by the prosecution, but the judge does not approve that agreement, then the defendant must decide whether he wants a hearing."
The Sentencing Remarks
"The need for a deterrent sentence in relation to offences of this type is all too clear. The intention of Parliament in setting that provision was to place what is the highest weight in deterring gun culture and deterring the use of guns, because those who live in areas where there is a gun culture and where that gun culture is prevalent and fortunately it is all too prevalent in areas and districts of Manchester, where there is organised crime, that those who use and need guns need places to store them. Guns that would go out on the street and be used to kill inflict injuries of upmost severity, to impose terror on others, to enforce criminal activity and those who are engaged in those sorts of activities need a safe place to store their weapons and it is because of that that the courts -- that the courts are directed through Parliament to impose such a minimum term, and it is only if there are what can be said to be truly exceptional circumstances relating to the particular offence or yourself that I would be justified in not following the will of Parliament. That is the question I have to address today."
"The fact that you did not own up immediately again does not point to me being able to say there were exceptional circumstances here, but looking at your own personal circumstances I have great sympathy with the fact that this is your first conviction, that you are young and you are in a position of being pregnant. Unfortunately those who are looked at to be a refuge for those with guns and nefarious intent look to people exactly like you, which is just the reason why there has to be that deterrent impact. You are young and may be relatively immature. As far as your physical condition is concerned, I do not regard those as being either together or in themselves amounting to what can constitute exceptional circumstances. I put them all together to reach my overall conclusion and in my view I cannot reach a conclusion that there are in your case such exceptional circumstances which would warrant my imposing anything less than a five year minimum term."
The Advice and Grounds of Appeal
"It is submitted that the learned judge failed to take sufficient account of the mitigating circumstances in this case, both in relation to the offence and to the offender. Whilst it is the case that none of the mitigating factors alone would justify departing from the minimum term, those factors taken together ought to have led to a finding of exceptional circumstances. The sentence of 5 years in a Young Offender Institute in this case can be properly described as 'arbitrary and disproportionate'. The sentence imposed was manifestly excessive, having regard to the mitigation available."
Again, therefore, the emphasis is on what are called the mitigating factors, rather than the precise state of knowledge of the appellant.
"I consider that it is arguable that there were exceptional circumstances in your case given that the basis of plea said that you were suspicious about the bag which you were asked to store 'but it did not cross [your] mind that the bag would contain a firearm or ammunition'. The Judge appears to have been sceptical about this, and if so I share her scepticism, but it is arguable that her characterising the case as one of 'wilfully shutting your mind to what was there' was inconsistent with this aspect of the basis of plea and/or the Judge was wrong to dismiss this as a possible exceptional circumstance. If this was a case in which you were suspicious but, in good faith, it genuinely never occurred to you that the item might be a firearm, it may be that this, in itself or taken in conjunction with the other circumstances of the case, would give rise to exceptional circumstances: compare R v Boateng [2011] EWCA Crim 861 although I am not clear that this was cited to the Judge."
The Law
"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 section 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 section 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 section 51A creating a minimum sentence."
"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."
1. What sort of weapon was involved?
2. What use if any was made of it?
3. With what intention did the defendant possess it?
4. What is the defendant's record?
"15. To a degree the same principle applies in a case such as this. If those looking for a safe haven to harbour dangerous firearms target persons who they can trust not to look inside the bag which is left with them so that such persons can claim truthfully that they did not know the bag contained firearms, the policy of the minimum term would in the same way be undermined."
"16. On the other hand, applying the reasoning of the court in Rehman the fact that an offender may commit an offence without even realising he has done so is a matter of 'great significance' when considering whether the operation of section 51A in a particular case leads to an arbitrary and disproportionate sentence.
17. The crucial feature of this case is that the judge was satisfied after holding a full Newton hearing that the appellant was genuinely unaware that the bag contained firearms and ammunition. That is a high threshold for any defendant to achieve. We would expect any court dealing with such a case to subject to the closest scrutiny any plea of lack of knowledge of the contents of a bag or container.
...
19. In the present case the appellant's criminality lay in being prepared to receive into her flat a bag which she suspected was somehow linked to crime. In doing so she acted at her peril but she did not know the bag contained firearms and ammunition. In our judgment there were exceptional circumstances, which, had the point been argued, would have entitled the judge not to impose the minimum five year sentence. It is clear that had the judge believed such a course was open to him he would have taken it."
Exceptional Circumstances: The Appellant's Personal Circumstances
"We have no doubt that the supply of drugs into prison is an offence of exceptional gravity which must, notwithstanding Mr Majid's careful submissions on the subject, be visited with immediate custodial sentences. If that is not the case, then the greater will be the pressure on the weak and the vulnerable to take drugs into prison and thereby contribute to the disorder that results from the misuse of drugs in custodial institutions."
In our view, precisely the same applies to the five-year minimum term for the storage of illegal guns and the use made of the weak and the vulnerable for this purpose.
Exceptional Circumstances: State of Knowledge
"You clearly were aware that something was not right. You were suspicious. You did not and he told you on the basis of plea not to ask any questions, not to let anybody go near what he had put in your cupboard. Whilst your basis of plea suggests that it did not cross your mind that it might contain firearms or ammunition or something else, wilfully shutting your mind to what it might be, wilfully shutting your mind to what was there and asking further questions and not looking thereafter but allowing it to be stored for a not insignificant period of time, for a week and a half, can not in any shape or form in itself amount to what can properly be viewed as an exceptional circumstance. To do that would have the effect of immediately blunting the deterrent requirement of this section."
Sentence