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Preview: Comments on Jack of Kent: Paul Clarke: An Anatomy of an Injustice

Comments on Jack of Kent: Paul Clarke: An Anatomy of an Injustice





Updated: 2016-10-19T04:47:34.334+01:00

 



Paul Clarke was sentenced a week or two ago, altho...

2009-12-23T10:36:03.350+00:00

Paul Clarke was sentenced a week or two ago, although as far as I can see only the Daily Mail reported it, so this might have been overlooked by many.

He obtained a suspended sentence of 12 months. Although this seems sensible, actually I am a little surprised at the judge's reasoning in arriving at it (if you can believe the DM's reporting of it). In effect the judge said that he found Clarke's account implausible, but the prosecution had said nothing to discredit it, and the burden of proof lay on that side. Clarke has a previous conviction for possession of a firearm.



Supposing the police and the CPS doubt Mr Clarke&#...

2009-12-22T09:43:37.551+00:00

Supposing the police and the CPS doubt Mr Clarke's story and have reason to believe that the true circumstances warrant a charge and a prosecution. If so, it appears that they have essentially a "slam dunk" case against him because of the strict liability offense

If this is the case, I am wondering whether there is another way in which matters could have progressed such that justice is seen to be donw

I think that's a very good point. Let's assume that Clarke did not act in good faith. In which case the prosecution should adduced some evidence to that and not relied simply on the strict liability of the offence. The publicity surrounding this case means that people will not want to notify police of an illegal firearm for the risk that they might be prosecuted. This can only be to the detriment of public safety.



There must always be some residual discretion even...

2009-12-13T15:33:03.185+00:00

There must always be some residual discretion even where a sentence is "mandatory" for the odd case - and this may not be one - which does not fit the bill.

As for the guardsman given a suspended sentence for rape "to protect his career" - for Pete's sake that was in 1977 and would not happen now. And if it did there is now (but was not then) a mechanism in place for the pros. to appeal against excessively lenient sentences.



Spike: That's absolute rubbish, strict liabili...

2009-12-13T01:36:10.091+00:00

Spike: That's absolute rubbish, strict liability does not equal a presumption of guilt. It means that they have to prove that the accused performed the illegal act that's prohibited in statute. It helps their case greatly that Clarke admitted to it. You can't expect a jury to acquit someone who's signed a confession.



You are all missing the point, surely. Strict Liab...

2009-12-12T12:52:10.359+00:00

You are all missing the point, surely.
Strict Liability= guilty until proven innocent.
An abomination to this judicial system. No?
Clarks personality should not be a part of the equation. Nutter or misguided gent, no-one should comment. His action, if genuine, is commendable. The delay odd. The what ifs are not accountable.
Holding the thing makes him a criminal, regardless of the circumstances...ridiculous.
Bad law.



Comapre and contrast Paul Clarke's experience ...

2009-11-30T16:24:43.190+00:00

Comapre and contrast Paul Clarke's experience with that of Valerie Farrell.

Mrs Farrell telephoned Southend Police Station and spoke to an inspector. She said she had something to hand in, but didn't tell him what it was because it was a confidential matter.

Mrs Farrell then went to the police station where she took two pistols and a revolver from her handbag.

Police were quite excited about her weapons, too, but took rather a different approach to that used with Mr Clarke...

http://tinyurl.com/yhf97jo



Here are some very similar cases, showcasing the a...

2009-11-29T00:37:15.465+00:00

Here are some very similar cases, showcasing the absurdity of minimum sentences for simply owning an illegal firearm.

http://lpuk.blogspot.com/2009/09/justice-in-uk.html

Ideal conditions for criminals to have free reign over the law abiding.



I believe that all man made law is bad law and as ...

2009-11-25T19:25:22.824+00:00

I believe that all man made law is bad law and as such all convictions an injustice, but having said that am I not as guilty of also taking life to seriosly as do man made law purists. I feel that I shall have to rest my case and give this some very deep thought.



I was discussing this case with a colleague, and h...

2009-11-25T18:05:34.907+00:00

I was discussing this case with a colleague, and he had recent indirect experience of something which was possibly more unsettling, and does indicate that there must be some discretion involved in sentencing. Unlike this case, it did result in a death, albeit under highly unusual, but maybe even more allarming, circumstances.

It involved my colleague's daughter's music teacher. His father was terminally ill in hospital with a lung disease. The music teacher obtained a WWII Walther PPK handgun, and handed it over to his father, who then shot himself in a a public hospital ward.

By any standards this is a somehwat startling case, and the son pleaded guilty to two charges of possessing an illegal firearm and two charges of passing an illegal firearm onto his father (he wasn't prosecuted for assisting his suicide - which really does put those Swiss clinic cases into perspective).

For this he recieved a three (not five) year sentence. I would have thought the minimum penalty for a handgun of this sort was the same as for a sawn-off shotgun.

This is a link to a newspaper article on what was a tragic case

http://www.bucksfreepress.co.uk/news/4582336.Risborough_music_teacher_jailed_after_giving_suicide_father_gun/



Just confirms what anyone can tell you. Law an mor...

2009-11-25T14:32:12.122+00:00

Just confirms what anyone can tell you. Law an morality are two very different things. Its our job as citizens to modify the first to better reflect the latter.

You've been linked here:
http://carnifexinsania.blogspot.com/2009/11/whither-strict-liability.html



Many thanks for a thoughtful and insightful post. ...

2009-11-25T11:51:15.683+00:00

Many thanks for a thoughtful and insightful post. Just one thing -- a Newton hearing takes place where the defendant pleads guilty on a factual basis, and the difference between his basis of plea and the Crown's case is such that there would be a difference in the level of sentence between the two versions.

The court would then hear evidence, decide which basis was correct, and sentence accordingly.

In this case, he pleaded Not Guilty, chose not to give evidence, was convicted, and all that remains is mitigation and sentence -- not further evidence.



Wigarse : One very important point here seems to b...

2009-11-24T22:58:59.247+00:00

Wigarse : One very important point here seems to be that he kept the gun for a few days before handing it in. If you take the walk to the police station out of the equation he was still, by his own admission, in possession for quite some time.

We also read that he had problems with the police before, and was in the process of a civil claim against the local force. Arguably a (short) delay in these circumstances is understandable, if unwise, while he decides whether he ought hand it in or dispose of it to avoid it being used against him, before eventually coming to the correct (but unfortunate for him) decision to hand it in. Indeed, such a justification for delay is made all the more believable in future cases of this nature if those who find prohibited articles have in the back of their mind the details from this case.

Pam Nash : If I knew, that although technically guilty, I was morally innocent and facing a 5 year sentence, believe me when I tell you that I would want my say in court.

But if you had also received legal advice that this would risk harming your case in the eyes of the jury should certain awkward-but-innocent matters come up under examination? That is one good reason why no inferences should be drawn from his decision.


The root of the unjustice appears to be the law itself, which simply cannot provide for such seemingly obsucre circumstances, and this has been exploited by the police who took the no-risk opportunity to nobble someone who was causing them problems.



I am intrigued and troubled by this case. The CP...

2009-11-24T02:39:08.182+00:00

I am intrigued and troubled by this case.

The CPS say that Mr Clarke's account of how he came to possess the gun lacked credibility.

Supposing the police and the CPS doubt Mr Clarke's story and have reason to believe that the true circumstances warrant a charge and a prosecution. If so, it appears that they have essentially a "slam dunk" case against him because of the strict liability offense.

If this is the case, I am wondering whether there is another way in which matters could have progressed such that justice is seen to be done. Could / should Mr Clarke have been charged with a different offense? Could the case have proceeded in a different manner such that the motives behind the prosecution were transparent?

If the CPS believe that it was in the public interest to prosecute Mr Clarke for reasons that are not apparent, is it in the public interest for them to do so in a straightforward manner where there is a near-guaranteed conviction or a more complicated and perhaps expensive manner in which justice is seen to be done?



Extremely intersting article, and one in which it ...

2009-11-23T11:21:24.113+00:00

Extremely intersting article, and one in which it is difficult to form an objective opinion.

Personally I do not think there was an injustice done here for two reasons:

1) Civic duty does not involve a two day, unexplained wait.

2) In the children's playground example, the answer would be to either go to the nearest phone box, or wait for a passerby with their own phone.

The over-simplification of this example helped me to conclude that perhaps an accusation of 'injustice' might be over-simplified as well.

However for the carefully explained reasons in this article, I'd have to say that there seems to be a real potential for injustice in this area, although I still have faith in the discretion and judgement of our judiciary in interpreting draconian provisions.

It will certainly be interesting to see what sentence is handed down on this one as the mandatory would certainly seem very harsh!



If I find a gun in my garden, am I then "in p...

2009-11-22T17:41:53.521+00:00

If I find a gun in my garden, am I then "in possession" of it, so that even calling the police to ask them top collect it wouldn't protect me against the strict-liability offence?



1. Cases such as R v Deyemi [2007] EWCA Crim 2060 ...

2009-11-22T10:28:23.436+00:00

1. Cases such as R v Deyemi [2007] EWCA Crim 2060 deal with the issue of strict liability and "possession" is also addressed in that case.

2. The main problem here is not so much the strict liability (which is, IMHO, justifiable) as the fact that there is a minimum sentence unless there are exceptional circumstances. Minimum sentences place a severe limitation on judicial discretion in sentencing and they can be unjust. However, by law, the exceptional circumstances may relate to either the offence or the offender. Pre-sentence reports are normally prepared and assist with the sentencing.

3. It has always been a risky thing for a defendant NOT to give evidence in court. It is their right not to do so but they run the risk that the jury (or magistrates) might draw inferences which might actually be wrong. This risk existed long before the "right to silence" provisions were introduced by the Criminal Justice and Public Order Act 1994. The various press reports of this case are silent as to whether the "right to silence" provisions in the 1994 Act were applied.

Of course, if the defendant chooses to give evidence then he runs the risk that his story will not stand up to cross-examination and if that happens then any chance of arguing exceptional circumstances has been almost certainly destroyed.

4. Will this story deter the person who is a totally honest finder of some weapon which has been discarded on their property? The answer is "very probably." That is one adverse and unintended consequence we do not want.



"That was not the case here, based on the evi...

2009-11-21T18:44:22.332+00:00

"That was not the case here, based on the evidence you offered. He had a gun in his possession for two days, and could not account for why he did not contact the police immediately."

That and that he was previously known by the police as having been charged with a crime (and acquitted in appeal). Combine the above with the police knowledge and it's not out of the realms of reality to see why the police might legitimately have concern enough that they actually did follow the Home Office guidelines. I'm not sure I believe it but without further police comment that we're missing we can't be totally sure either.



"In effect, what you're saying is that we...

2009-11-21T18:41:59.403+00:00

"In effect, what you're saying is that we *should* risk sending innocent people to jail and/or giving them a criminal record. It's no use saying you don't want this, and backing a policy that lets this happen."

I don't back this policy, I've not said that at all. I also don't back calls that would change the law to make conviction impossible, proving guilt of possession will either be impossible or practically the same as having strict liability. "Did you have the gun in your possession when taking it to the station", "yes", "I rest my case".

And yes, I do think the procedure of the police and the decision making they took (and thus the evidence they have for following their guidelines) should be scrutinised in court. The problem in a law of possession is that it IS black and white as to whether the person possessed it or not, it is the intention that needs to be tested in court.

I don't think changing the strict liability nature of this crime is the answer, either way a problem surfaces, change it or not. But if the court was also able to decide if the charge was to be justified as part of the process (which, in all fairness is where the Judge and their sentencing may well step in) then that would be an acceptable situation to live in as far as I'm concerned. The best situation we could hope for in a very awkward area of law.

There is a bigger question as to whether Section 5A is even appropriate, that may well be a more productive line of action.



As a member of the public, and so whose interests ...

2009-11-21T17:12:17.564+00:00

As a member of the public, and so whose interests the decision to prosecute rests on, I am very concerned that someone found a gun but then waited two days before contacting the police.

Had he contact them as soon as was possible then I would agree that prosecution was unjust and absurd. Similarly in the example of a gun found in the park, I would see it the public interest as being better served by someone to taking possession of it until they were able to contact the police rather than leaving it unattended.

That was not the case here, based on the evidence you offered. He had a gun in his possession for two days, and could not account for why he did not contact the police immediately.

I do not see the public interest, my interest, being served by the CPS saying "oh well, never mind" as you seem to suggest by dismissing it as "a subjective reaction to the only evidence available". (And what evidence should the CPS act upon if not the only evidence available?) He illegally had a gun in his possession, chose not to contact the police for a prolonger period of time, and cannot justify that action.



"David: Sorry, didn't see your comment be...

2009-11-21T16:32:25.009+00:00

"David: Sorry, didn't see your comment before. I'm afraid that just doesn't cut it with me as a reasonable outcome. I'm all for liberties, absolutely, we should never send innocent people to jail nor give them a criminal record. But the alternative is to seemingly let criminals off easily just to ensure that happens."

In effect, what you're saying is that we *should* risk sending innocent people to jail and/or giving them a criminal record. It's no use saying you don't want this, and backing a policy that lets this happen.

If someone is charged for illegal possession, it should be proved that he hasn't acquired it recently and innocently. Anything else is a reverse burden of proof. It may result in some criminals being let off the hook -- but that's a well-known feature of innocent until proven guilty. Effectively, though this is on a far lower level, this is the same type of reasoning as applied by the Bush administration, and it's unacceptable for the same reason.

"This law highlights the very boundaries of acceptability in legal action and the justice system, one where we have to simultaneously trust the system and those that bring us in to it (the police and the prosecutors).

I think the home office guidelines are sound, as are the CPS guidelines."

The guidelines are sound. I trust the guidelines as guidelines. I do not, however, trust that the police and the CPS will always come to just decisions, and it is for that reason that we *have* the courts.

I don't even think it takes corruption on behalf of the police for something to go wrong when it comes to this law -- just for their evaluation to not be correct, which is known to happen.

"What we should be collectively calling for out of all this is a formalisation of those guidelines in the sense that we can trust the police to follow them no matter what prejudices or prior experience with a person they may have had."

What on earth do you mean by that?

The guidelines are 'formal' guidelines. If you mean that people should be able to scrutinise the police procedure in court, to ensure that they can test the police's assertion that they have followed guidelines, how is that different to watering down the strict liability clause in the first place?

"That said, however, I'm not sure that the police here have contravened this guidance if their belief is that Paul Clarke is misleading them, by accounts of his own statement."

Nor am I. That's immaterial. I want to be sure that the police *haven't* contravened this guidance, or simply made a mistake, and Paul Clarke has no way of doing this in law. This is the injustice -- we have no way of knowing whether Clarke is morally guilty or not.

@Simon -- "For me, the red flag is the comment that Mr Clarke decided not to give evidence. Even if he had no defence in law as such, surely it was in his interests to put his version of events, if only so that it was in the minds of the jury?"

I don't dispute your point here, but again, I consider it immaterial, and very similar to the argument made against 5A a lot in the States -- there's plenty of speculation that looks bad for Clarke, but the point is that someone must be found guilty based upon something more solid than speculation.



A very interesting post and very interesting comme...

2009-11-21T15:25:11.792+00:00

A very interesting post and very interesting comments.

A few people have said that the fact that Mr Clarke chose not to give evidence suggests his "involvement" with the shotgun was greater than he claimed.

Perhaps I'm being naive, but if his involvment with the gun really was greater, why would he hand it into the police and risk arrest instead of dumping it in, say, a river, skip or neighbour's garden?

Given the CPS guidance mentioned by Lee, the CPS appear to have acted properly. And given that it's a strict liability offence the jury clearly had to convict.

Thus, the question appears to be whether, based on Mr Clarke's account, the police could reasonably conclude that, with regard to the weapon

"circumstances exist to give serious cause for concern as to its provenance (for example, if it appears to have been stolen)".

I'm not sure that such circumstance did exist.



The problem is with strict liability itself. There...

2009-11-21T13:21:05.731+00:00

The problem is with strict liability itself. There should *never* be a crime without criminal intent or at least a grossly negligent disregard for consequences.



For me, the red flag is the comment that Mr Clarke...

2009-11-21T09:18:20.810+00:00

For me, the red flag is the comment that Mr Clarke decided not to give evidence. Even if he had no defence in law as such, surely it was in his interests to put his version of events, if only so that it was in the minds of the jury?

There is one very common reason of course why a defendant does not give evidence: to avoid being cross-examined on it. You cannot be asked awkward questions about something you have said nothing about. Furthermore, the prosecution cannot refer in summing-up to issues that have not been raised during either the prosecution or defence case.

If Mr Clarke's version of events was true, it would have done him no harm at all to explain them, in his own words, to the jury. Why didn't he do so? Was it because his explanation would not have stood up under questioning? Were there factors his story that, if aired in court, would have entitled the prosecution to bring up aspects of his prior character they were otherwise not permitted to?



David: Sorry, didn't see your comment before. ...

2009-11-21T03:21:18.388+00:00

David: Sorry, didn't see your comment before. I'm afraid that just doesn't cut it with me as a reasonable outcome. I'm all for liberties, absolutely, we should never send innocent people to jail nor give them a criminal record. But the alternative is to seemingly let criminals off easily just to ensure that happens.

This law highlights the very boundaries of acceptability in legal action and the justice system, one where we have to simultaneously trust the system and those that bring us in to it (the police and the prosecutors).

I think the home office guidelines are sound, as are the CPS guidelines. What we should be collectively calling for out of all this is a formalisation of those guidelines in the sense that we can trust the police to follow them no matter what prejudices or prior experience with a person they may have had.

That said, however, I'm not sure that the police here have contravened this guidance if their belief is that Paul Clarke is misleading them, by accounts of his own statement.

--

I also had an interesting conversation with my partner about the schroedinger's shotgun situation. Together we came to the conclusion that if you really happen to be in that situation there are two choices you have. 1) wait for someone to come so you can direct them to call the authorities or 2) if it seems no-one is around or coming to leave the weapon and find a way to call the authorities and then come back.

It should never be an excuse to disturb a potential crime scene, but this has to play against a conscience for ensuring no-one else gets hurt. However I ask if you were out running without a mobile phone and you came across a murder taking place, or a rape, would you immediately think you should intervene or that you should alert the authorities some how?

It's easy to put ourselves in this situation, hypothetically, and say we'd do the "right thing" and help...but would it be the right thing? We may or may not save the victim of an attack by intervening, we may not help and actually make the situation worse, we may also become a victim ourselves...by not taking a good view of the situation and finding a way to alert the authorities ASAP the sure thing is that the cause and perpetrators of a crime won't as easily be solved to stop it from happening again. Perhaps that needs to weight a little heavier on our consciences too.



ceeb: i think you prove my point a little. If whil...

2009-11-20T19:03:52.352+00:00

ceeb: i think you prove my point a little. If while being mugged a person uses the weapon they're carrying cs a threat they commit another offence. The mugger may leave him alone but what's the outcome, evaluating his life choices? Or perhaps deciding to stay in power he should arm himself from now on?

Our actions have potential consequences that can become very real. Stupidity, ignorance or distrust of the rozzers is not an excuse to avoid punishment; but they must be factors in what that punishment is. A day in court may be enough, perhaps more, it depends on the circumstances.

As mr gorman said, the issue is about strict liability, and not because the case came to court but because it dissuades a full and factual hearing. I will concede that certain characters may be disincentivised over this, however if doing so it may be founded on the idea they'll get persecuted even if they don't touch it and call it in...nothing in this case suggests the police would ever arrest in that situation if you're co-operative and transparent.

But, on that issue, it'd be nice if someone could engage with my opinion forming. Strict liability has obvious down sides, but how about the practical implication of a criminal engineering a situation where, without strict liability, he gets either a pat on the back for turning in a weapon at worst, or at best a day in court where the only evidence is his word against the authorities?