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 Rights Act. Furthermore, it can be assumed that Parliament had the decision of Offen in mind when it selected the same language for the exception...It is clear in our judgment that, read in the context to which we have referred, the circumstances are exceptional for the purposes of s.51A(2) if it would mean that to impose five years' imprisonment would result in an arbitrary and disproportionate sentence."

[7] The approach adopted in Rehman and Wood has been followed in subsequent cases, both in England and Wales and in Scotland. In HMA v McGovern 2007 SCCR 173, in particular, it was observed by this court that, since the 1968 Act is a United Kingdom statute, the decisions of the Court of Appeal on the effect of section 51A are highly persuasive: as the court stated at paragraph 7, it is highly desirable that the Act receive similar effect throughout the United Kingdom and that this should be reflected in uniformity of sentencing practice, other things being equal.

The circumstances of the present case

[8] The sentencing judge was provided with an agreed narrative. It explained that on 17 June 2009 police officers went to the appellant's house in order to look for her son, for whom they had an outstanding arrest warrant. The appellant allowed the officers to search the house. Her son was not there, but during the search the officers found a handgun underneath the mattress of the appellant's bed. She told the police that it belonged to her and that it had previously belonged to her father, who had died about 28 years previously. She believed it to be a real gun. She had no ammunition for it. On examination by a firearms expert, the gun was found to be a self-loading automatic pistol which had been manufactured in Czechoslovakia. It was believed to have been made in about 1927 or shortly afterwards. It was in poor external condition, with scratches and corrosion. It had a faulty safety catch and trigger mechanism but was in working order and capable of firing bullets.

[9] The sentencing judge also heard evidence about the circumstances. A firearms expert gave evidence that the pistol had been made in 1941. It had markings on it which showed that it had been made for the German army. The appellant gave evidence that she had found the pistol among her father's possessions when he died in about 1981. Her father had served in the Royal Navy during the Second World War. The pistol was with other articles relating to his wartime service. She decided to keep it. She claimed to have done so for sentimental reasons, but the sentencing judge did not accept that explanation. It did not occur to her to hand it in to the authorities. She kept it, in a box, at several different addresses, initially in the loft, then in an unlocked cupboard under the stairs, then in an unlocked wardrobe. Latterly, she kept it under her mattress. She claimed to have done so in order to prevent her grandchildren from finding it, but that explanation was disbelieved by the sentencing judge. She handled the pistol from time to time. She said that it did not occur to her that she needed a licence for it: she regarded it as a war trophy. Her son stayed with her from time to time. She was aware that he had criminal convictions, including two for assault and two for possessing knives. She herself had previous convictions, one of which was for an assault to severe injury. That offence had occurred when her 21 year old daughter was being bullied by a woman who was pressuring her to pay a drug debt. The appellant had assaulted the woman. In relation to her personal circumstances, the appellant was 53 years old. Her 9 year old grand-daughter usually stayed with her overnight, as her daughter was a heroin addict. Her 8 month old grand-daughter also sometimes stayed with her at weekends, that grand-daughter being a child of the same heroin-addicted daughter.

[10] The appellant's son also gave evidence. He had been aware that the appellant had the pistol, and that she kept it under her mattress. He had known about it for several years. She knew that he was aware of her having it. He spoke of an incident which had occurred at the appellant's flat a few years earlier, in the appellant's absence. His nephews had been playing in the appellant's bedroom and had taken the mattress off the bed. One of them had been playing with the pistol.

[11] On the basis of this evidence, the sentencing judge concluded that a number of facts had been established which were relevant to the issue of whether or not exceptional circumstances existed. Those facts generally reflected the evidence which I have narrated. The sentencing judge did not however make any finding in respect of the appellant's evidence that it had not occurred to her that she needed a licence for the pistol; nor did the sentencing judge mention that evidence in her discussion of the aspects of the appellant's evidence which she had rejected. It does not, in my opinion, go without saying that that evidence was rejected as being inherently implausible. Although most adults could be expected to realise that the unauthorised possession of a firearm was unlawful, the possibility of sheer thoughtlessness (particularly in respect of a wartime souvenir), or abject ignorance, cannot be dismissed out of hand. Nor did the sentencing judge make any findings in respect of the appellant's evidence about her involvement in the care of her grandchildren. There is however no indication that that evidence was disputed.

[12] In addition to the narrative and the evidence which I have described, the sentencing judge also had a schedule of the appellant's previous convictions and a social enquiry report. There were three previous convictions, all at summary level. One dated from 1991 and the others from 2001. The most serious matter - the assault to severe injury - had resulted in a fine of £100. The other convictions had resulted in lesser fines, or admonition. The social enquiry report stated that the appellant had a high level of involvement with her younger daughter's children, as her daughter had a drug problem. The local Children's Services were involved with the children. The appellant was said to be very concerned about the effect which her receiving a custodial sentence might have on her grandchildren. She was concerned that the risk of the children being taken into care would be increased if she was not there to provide daily support. The author of the report confirmed that the appellant was heavily involved in the care and protection of her grandchildren. The appellant was assessed as presenting a low risk of re-offending. The author of the report expressed the opinion that the appellant had not intended to avoid complying with the law relating to firearms. The report concluded:

"I am of the opinion that Ms Cochrane was genuine in her lack of knowledge regarding a licence for the weapon she had, although I accept this does not mitigate the circumstances of this incident. However, due to Ms Cochrane's general offending-free lifestyle, the importance of the role she plays in her grandchildren's lives, her good attitude and her acceptance of the responsibility she had to register the weapon that some recognition is given to this when sentencing. Ms Cochrane has been assessed as low risk of re-offending and medium risk of harm. She is suitable for community service .... I would ask the court to consider community service as an alternative to custody."

[13] In determining whether exceptional circumstances existed, the sentencing judge noted that the fact that the appellant had found the pistol among her late father's possessions, rather than having obtained the pistol, was a mitigatory factor. That was the only mitigatory factor mentioned. The sentencing judge noted two aggravating factors: the knowledge of the appellant's son and grandchildren about the presence of the pistol in her house, and the accessibility of the pistol. The sentencing judge concluded that it was not open to her to categorise the circumstances as exceptional: given the terms of the legislation, she said, her hands were tied.

The Appeal

[14] The appeal is brought on the basis that the sentencing judge erred in concluding that exceptional circumstances did not exist. In that regard, the grounds of appeal refer to a number of matters, including that "the appellant was unaware that her possession of the pistol was illegal and that she was committing any crime by having the weapon in her possession". The appellant's written submissions similarly refer to a number of factors as being relevant to the issue of exceptional circumstances, including that "the appellant was unaware that a licence was required" and that "the appellant was ignorant as to the illegality of the weapon". Reference is also made in the written submissions to Rehman and Wood.

[15] Despite the terms of the grounds of appeal and the written submissions, the solicitor advocate presenting the appeal did not initially advert to those matters, and acceded at one point to a suggestion from the bench that he was not suggesting that the appellant did not know that the possession of a weapon of this sort was illegal. It appeared that he was unaware, until his attention was drawn to relevant passages in Rehman and Wood, that a lack of awareness that possession of the weapon was unlawful might be relevant to the existence of exceptional circumstances. He submitted however that the appellant had not had any criminal intention but had acted as she had done as a consequence of stupidity and ignorance. He did not depart from the terms of the written submissions. On behalf of the Crown, the advocate depute informed the court that there had been no report or intelligence suggesting that either the appellant or her son was involved at all with firearms, prior to the discovery of the pistol in question during an unrelated search. He submitted that the court had to proceed in this case on the basis that the appellant had been ignorant that her possession of the pistol was an offence. He also informed the court that there had been some debate within Crown Office as to whether to bring the present proceedings against the appellant.

Discussion

[16] This is a difficult and anxious case, which divided judicial opinion when it was first heard by a bench of two judges, and has again divided opinion on being re-heard by the present bench. I have considerable sympathy for the sentencing judge, particularly as she does not appear to have had important aspects of the relevant authorities drawn to her attention. As was said in Rehman and Wood at paragraph 14 and has been reiterated in subsequent cases, an appellate court will not readily interfere with the decision of the sentencing judge as to whether exceptional circumstances exist unless the judge is clearly wrong. I have however come to the conclusion that it is appropriate to interfere with the decision of the sentencing judge in this case.

[17] First, it is not apparent that the sentencing judge took account of the appellant's evidence that she was unaware that she needed a licence for the pistol. It is clear from the sentencing judge's report not only that this evidence was given, but also that it was founded upon in the submissions made on the appellant's behalf, which included submissions that the appellant had not been aware that she was committing an offence and had not intended to act criminally. If accepted, that evidence was material, as was made clear in Rehman and Wood. The position was summarised by Lord Woolf CJ in that case at paragraph 19:

"He [the appellant Rehman] told the officers that he did not think it was illegal to own the gun. That is no defence, but it is very relevant when considering whether there are exceptional circumstances."

The significance of such ignorance will, of course, depend upon the circumstances of the particular case. In the case of Rehman and Wood, it was said (ibid) that Mr Rehman had every reason to believe that the gun was not one which it was illegal to possess. The circumstances of the present case are different. Nevertheless, as I have said, this was a material part of the appellant's case.

[18] Secondly, the sentencing judge does not appear to have attached significance to the appellant's role in the care of her grandchildren, and the potential implications in that regard of the imposition of a five year sentence of imprisonment. It is not apparent from the judge's report that particular reliance was placed upon the matter by the appellant's solicitor. Nevertheless, as I have explained, the court must consider the circumstances as a whole.

[19] Thirdly, and most fundamentally, the sentencing judge appears to have interpreted section 51A as requiring her to impose a sentence of at least five years' imprisonment unless the circumstances could be categorised as "exceptional" in some abstract sense. As was made clear in Offen and in Rehman and Wood, however, exceptionality has to be judged in the context of the statutory provision in question, having regard to the policy and intention of Parliament, and to the need to avoid sentences which are arbitrary and disproportionate.

[20] In light of the foregoing, it is necessary for this court to consider for itself whether exceptional circumstances exist in the present case. In doing so, it has to proceed on the basis that the appellant was unaware that her possession of the pistol was unlawful, since that was conceded before us on behalf of the Crown. The following factors appear to me to be particularly significant to the issue of exceptional circumstances.

1. The pistol was kept by the appellant's father as a wartime souvenir between about 1945 and his death in 1981.

2. The appellant came into possession of the pistol in 1981 when she found it among her father's effects.

3. The appellant regarded the pistol as a war trophy and was unaware that its possession without a licence was unlawful.

4. The appellant did not keep the pistol in secure conditions: her son (who has a number of criminal convictions) and grandchildren knew where it was and had access to it. Despite this, however there is no suggestion of any criminality on the part of the appellant or anyone else in relation to the pistol, other than its unlicensed possession.

5. There is no evidence that anyone other than the appellant handled the pistol, apart from one occasion when her grandchildren found it and played with it.

6. There is no evidence that the pistol has been used since 1945.

7. There is no evidence that the appellant has ever been in possession of ammunition.

8. The appellant was entirely co-operative throughout the search procedure.

9. She pleaded guilty at an early stage.

10. Although she has some previous convictions, they are not recent and they resulted in only modest fines or admonition.

11. She plays an important role in the care of her grandchildren, whose mother is a heroin addict. In the absence of the appellant's support, a greater degree of intervention by social services would probably be required.

12. The appellant presents a low risk of re-offending.

[21] It appears to me that these circumstances collectively make it possible to conclude that this is a case where the court was not required to impose the minimum sentence. As I have explained, the purpose of the minimum sentence required by section 51A is to send out a deterrent message. The norm established by section 51A is that possession of a prohibited weapon is a sufficiently serious offence to require the imposition of a term of imprisonment of at least five years for the purpose of deterring the commission of other such offences. If however, taking into account all the circumstances relating to a particular offence or a particular offender, such a term of imprisonment appears arbitrary and disproportionate, that case is an exception to the norm. Considering the present case in that context, one significant and unusual feature is that the pistol was a wartime souvenir which had been in the possession of the appellant's father since the Second World War and had been found by the appellant amongst his effects: this is not a case of a weapon being deliberately acquired. A second important and unusual feature is that the court has to proceed on the basis that the appellant did not know that her possession of the pistol was unlawful. As was observed in Rehman and Wood, a deterrent sentence will have no deterrent effect upon those who have no idea that they are doing anything wrong. Bearing those features in mind, the present case is less serious, relative to the policy underlying section 51A, than any reported case I have found in which a five year sentence was imposed, even when account is taken of aggravating features such as the insecure conditions in which the pistol was kept. It is, for example, considerably less serious than the case of R v Barber [2006] 1 Cr App R (S) 50, which also concerned wartime souvenirs which the appellant in that case had inherited from his father, but where the appellant was in possession of two pistols and a substantial quantity of ammunition, he was well aware that his possession of them was unlawful, and the police had been called following a disturbance during which he had threatened to shoot someone. A five year sentence was upheld in that case. When account is taken also of the present appellant's personal circumstances, it appears to me that the imposition of a sentence of five years' imprisonment would indeed be arbitrary and disproportionate. It would not be rationally related to Parliament's intention in stipulating that a sentence of at least five years' imprisonment should normally be imposed, since the present case falls outside the range of cases which Parliament can be taken to have had in mind as the norm; and it would result in punishment which was out of proportion to the seriousness of the appellant's offence and her personal circumstances, relative to the punishment imposed in other cases.

[22] It is therefore necessary to consider what sentence would be appropriate in the circumstances which I have outlined. As section 51A makes clear, the possession of a prohibited firearm is of itself a serious offence. In the present case, the appellant ought reasonably to have been put on her enquiry as to whether her continued possession of the pistol was lawful. She kept what she knew to be a real weapon under her mattress, where it could have fallen into the wrong hands, and did indeed come into the hands of a child. In these circumstances a custodial sentence is merited. The court is however prohibited by Parliament from imposing a sentence of imprisonment upon a person who has not previously received such a sentence, such as the appellant, unless it considers that no other method of dealing with her is appropriate. Given the importance of deterrence of such offences, it could only be in rare cases that anything other than a custodial sentence might be considered appropriate. Such cases have however occurred in the past, as appears from Morrison's Sentencing Practice, and the imposition of a custodial sentence cannot be regarded as an invariable rule. In the present case, as I have noted, the social enquiry report concluded that the appellant was suitable for community service, and requested that that be considered as an alternative to custody. The appellant has already spent six weeks in prison as a consequence of the sentence appealed against. Given the current arrangements for the early release of prisoners, that period was equivalent to a much longer custodial sentence. Bearing in mind also the appellant's early plea of guilty, the low risk of re-offending and her personal circumstances, it appears to me that this is a case which could appropriately be dealt with by an order for community service. I accordingly propose to your Lordships that the court should quash the sentence of five years' imprisonment in respect of each charge and substitute an order requiring the appellant to perform 240 hours of community service.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Reed Lord Carloway Lord Marnoch	[2010] HCJAC 117 Appeal No. XC427/10 OPINION OF LORD CARLOWAY in APPEAL AGAINST SENTENCE by GAIL COCHRANE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________

Appellant: B Gilfedder, Solicitor Advocate; Paterson Bell

Respondent: Ogg QC, AD; Crown Agent

18 November 2010

[23] On 26 April 2010, at a Preliminary Hearing in the High Court at Edinburgh, the appellant pled guilty to being in possession of a prohibited weapon, namely a Browning 7.65 mm self loading pistol, contrary to section 5(1)(aba) of the Firearms Act 1968. Such an offence carries a minimum penalty of five years imprisonment in the absence of "exceptional circumstances relating to the offence or to the offender" (s 51A(1) and (2)). It is worth observing that the minimum penalty applies not only to the simple possession of such a weapon but even to the possession of ammunition.

[24] There is no doubt that the purpose of the minimum period is deterrence. Because of the dangers which prohibited weapons pose, were they to fall into the wrong hands or were the person having them to decide to use them for illegal purposes, mere possession is met with a severe penalty in the absence of exceptional circumstances. The test for whether exceptional circumstances exist or not was set out by Lord Nimmo Smith, delivering the Opinion of the Court, in HM Advocate v McGovern 2007 SCCR 173. Having considered certain dicta from England, which were regarded as persuasive, he said (para [11]):

"The principles which may be derived from these cases appear ... to be as follows: In enacting section 51A of the Firearms Act, Parliament intended, that, for the protection of the public against the dangers arising from the unlawful possession of firearms, considerations of retribution and deterrence should be given greater emphasis, and the personal circumstances of the offender less emphasis, than would normally be the case in sentencing. While there may be cases in which exceptional circumstances are found to exist, the emphasis is on the word 'exceptional', and such cases will be rare. In deciding whether or not exceptional circumstances exist, it is necessary to consider as a whole all relevant circumstances relating to both the offence and to the offender. Some circumstances may amount to aggravation and some to mitigation, and some may be relatively neutral, which is why it is to the circumstances taken as a whole that regard must be had".

McGovern was followed by two members of this court in Lowe v HM Advocate 2008 GWD 24-382. That having been said, where a penalty imposed by a court is perceived as arbitrary or disproportionate and thus as a contravention of Article 5 of the European Convention on Human Rights, the case will almost certainly be one where, in terms of the statute, exceptional circumstances do exist.

[25] The sentencing judge was provided with an agreed narrative. This included the finding of the gun in the bedroom of the appellant's one bedroom flat in Morgan Street, Dundee, when the police were looking for her adult son. It was found "underneath the mattress", although exactly what that meant is not clear in the context of a search for a person. The appellant "confirmed that [the gun] belonged to her". No ammunition for the gun was found in the flat. The gun was in working order. The appellant's account at interview was summarised, but its truth was not agreed. Her son's interview was similarly summarised, but not agreed as fact.

[26] The sentencing judge held, what she describes as, an "evidential hearing"; presumably a proof in mitigation relative to the issue of exceptional circumstances. She described the appellant's evidence as lacking clarity and being so vague at times as to call her reliability into question. The contradictions between her evidence and that of her son, about why she kept the pistol, where it was kept and her son's knowledge of it, were such as to call her credibility into question in important respects. The judge thus stated adequate reasons for rejecting certain aspects of the appellant's testimony.

[27] The judge then narrated the evidence adduced. The narrative includes a passage in which the appellant said that "it did not occur to her that she needed a licence for the pistol; it was, she said a 'war trophy' ". After the narrative, the sentencing judge makes succinct findings-in-fact. These include that the appellant had, as she had said, come into possession of the pistol on her father's death some 29 years previously. She had known that it was a real pistol, but had decided to keep it, even although she knew that she could have handed it into the police. She did not tell her relations of the find. She "took it out from time to time and handled it".

[28] The appellant has a previous conviction for assault to severe injury perpetrated on a drug dealer, from whom she was trying to protect her heroin addicted daughter. Her son has numerous convictions; two of which are for assault and two for possession of knives. The appellant was aware of her son's criminal record. She allowed him to stay at her flat on occasion. She knew that he was aware of the existence of the pistol. Children (nephews of her son) playing at her flat had also found the pistol on one occasion when the appellant was not there.

[29] The sentencing judge expressly did not accept that the appellant had kept the gun as a memento or "war trophy". This is a significant finding in the context of the appeal. It is also of some importance to note that the judge did not accept that the appellant's hiding place for the gun was selected because of any concern about children. The appellant had taken the gun from flat to flat over time. On these occasions, and when she took it out and handled it, she had had the opportunity to review her decision to keep the gun. The judge states that this was not a case in which the appellant had found her father's war-time relic and had simply put it away and forgotten about it.

[30] From the findings in fact, it is plain that the sentencing judge did not accept the appellant's evidence that: "it did not occur to her that she needed a licence for the pistol". In that connection, whatever the appellant may have said about a licence, she did not say that she was unaware that her possession of the pistol was unlawful (cf her solicitor advocate's initial submission at the sentencing diet). Indeed, even if she had done so, such a contention would have been bound to have been rejected as inherently implausible. This is so despite the Advocate Depute's somewhat startling concession at the hearing of the appeal that he could not contradict an assertion that the appellant was unaware that possession of the gun was a criminal offence. It is almost inconceivable that an adult of normal intelligence living in Scotland in recent years, notably since the Dunblane tragedy, could be unaware that the possession of a functioning military pistol is unlawful. Furthermore, the appellant's actions in concealing the weapon and not disclosing its existence, even to her close relatives, point towards her awareness of its illegality.

[31] There was hardly any need for the judge to make an express finding in fact that the appellant knew that possession of the pistol was illegal. It would be unusual for a court to make a finding relative to a person's knowledge of the law. In any event, such a finding would have been an unnecessary statement of the obvious (cf the Social Enquiry Report conclusion). In short, the judge correctly proceeded on the basis that this appellant knew perfectly well that what she was doing, in keeping the pistol, was illegal. In that regard, the solicitor advocate presenting the appeal did not maintain otherwise. He accepted that he was not suggesting that the appellant did not know that possession of the weapon was illegal, even if he did make a general point that the appellant had had no intention to do anything further with it which would also have been criminal.

[32] The solicitor advocate asserted, in support of exceptional circumstances, the appellant's care of her nine year old grand-daughter. At the time of sentencing, the child was living with the appellant during the week but returning to her mother at weekends. That, it was said, was no longer the case. The appellant's daughter continued to look after her eleven month old baby. Child care was not advanced before the sentencing judge as a factor in determining whether exceptional circumstances existed. It is not then surprising that the judge did not attach any significant weight to it. There was no suggestion before her, and certainly no evidence, that the imposition of the minimum penalty on the appellant would cause more than a normal, if substantial, degree of distress to a person, child or adult, in the event of the imprisonment of a close relative. There was no material before the judge to suggest that this was a consideration in the context of exceptional circumstances. Although the Social Enquiry Report referred to certain concerns being expressed by the appellant relative to the children being taken into care, there was nothing in the Report to indicate that there was any substance in these concerns.

[33] The sentencing judge has approached the issue of whether exceptional circumstances existed in an entirely appropriate manner. She has looked at all the various factors and attached appropriate weight to them. For exceptional circumstances to exist, there must indeed be something out of the ordinary. There is nothing in that category in this case. This appellant deliberately kept in her possession a military pistol. She did so against a background of having a significant conviction for violence and in the knowledge that her son, who also had a background of violence, was aware of the existence of the gun. Of course, there are mitigatory factors, including the absence of any finding of ammunition, but the issue is whether, looked at as a whole, these take the case into the exceptional category.

[34] This is an appeal against sentence. There is no requirement that, before quashing a sentence, the court must find fault in a sentencing court's assessment of the evidence or its findings in fact. If this court considered that a different sentence ought to have been passed (e.g. that exceptional circumstances existed), it can allow an appeal and substitute its own sentence (Criminal Procedure (Scotland) Act 1995 section 118(4)(b)). However, the circumstances here are not exceptional. In that situation, even if the court considered that the penalty imposed upon the appellant had been a severe one, the court would be bound to apply the minimum sentence set by Parliament. The court must bear in mind that the democratic process has legitimately determined that a substantial minimum period in custody is required as a deterrent in order to deal with the real problem of prohibited firearms. Even if the court considered that exceptional circumstances did exist, it could not justify the imposition of a non-custodial sentence for the possession of a Browning 7.65 mm self loading military pistol.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Reed Lord Carloway Lord Marnoch	[2010] HCJAC 117 Appeal No: XC427/10 OPINION OF LORD MARNOCH 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

[35] I agree with the opinion delivered by Your Lordship in the chair and have nothing to add.