‘Exceptional Circumstances’ in Firearms Cases by Stephen Wood QC

Thu 30th Dec 2021

The Death Knell for Those Who ‘Close Their Minds to the Obvious’

The days of what might be described as wilful ignorance, amounting to “exceptional circumstances” enabling a Defendant to avoid the 5-year minimum term, are now well and truly marked.

Stephen Wood QC examines the latest chapter in the hardening of attitudes by the Court of Appeal in the case of R v Peers [2021] EWCA Crim 1677.

In this case, the defendant, aged 20 years, was asked by a former boyfriend to store ‘something’ in her understairs cupboard. She did not know what the item was; a fact which appears to have been accepted by the prosecution.

The ex-boyfriend told her not to ask any questions and not to let anyone go near it.

The defendant was suspicious but maintained that it did not cross her mind that the bag would contain a firearm or ammunition. (The prosecution chose not to challenge this assertion).

About 10 days after the bag was deposited with her, masked men forced their way into a neighbouring property which the defendant was visiting and threatened the occupants. A knife was held to the defendant’s throat. It became clear that they were looking for a firearm and had the wrong address. The police were called, and the men fled the scene.

The defendant returned home and decided to open the bag to see what was inside. The police were still at the scene, outside on the street, and she then showed the police exactly where the bag was.

She was charged with and pleaded guilty to possession of a firearm and ammunition, contrary to section 5(1A) of the Firearms Act 1968, on a written basis of plea being that she did not know what it was that she was storing.

She was sentenced to five years’ detention the Judge at first instance declining to hold that her mitigation coupled with the basis of plea amounted to exceptional circumstances.

She appealed against sentence on the grounds that the judge had failed to take sufficient account of the mitigating circumstances in her case.

In granting permission to appeal, the single judge considered that it was ‘arguable’ that there were exceptional circumstances in this case given that the basis of plea said that the defendant said she was suspicious about the bag she was asked to store but that it had not crossed her mind that the bag would contain a firearm or ammunition.

Through gritted teeth the appeal was allowed.

The Court observed that it was plain on the authorities that “exceptional circumstances” in section 51A of the Firearms Act 1968 meant precisely that, and that it would be a rare case in which that high hurdle was surmounted.

Further, strong personal mitigation on its own was unlikely to be sufficient to amount to exceptional circumstances.

The personal circumstances of the defendant in the present case explained why she was chosen to keep a dangerous weapon; she was precisely the sort of (vulnerable) person chosen as a storekeeper by those who traded in and used illegal weapons.

The Court of Appeal observed that if a Crown Court was to hold that the defendant’s personal circumstances were exceptional, then the point and purpose of this legislation, and the statutory minimum term, would immediately be lost.

That ground of appeal therefore failed.

However, it had been previously determined by the Court of Appeal that a defendant who stored items for another suspecting that they were being asked to do something criminal, but who deliberately decided not to find out what it was that they were storing so that they did not actually know that they were storing a firearm was entitled to rely upon the exceptional circumstances exception and so avoid the imposition of the prescribed minimum term in section 51A; (see R v Boateng [2011] EWCA Crim 861; [2011] 2 Cr App R (S) 104, CA).

The Court said that the idea that a defendant could claim exceptional circumstances in such cases was troubling, since it appeared to “elevate deliberate ignorance into a positive virtue” and might serve to rob the legislation and the minimum term of meaningful effect.

However, this Appellant was fortunate as being a two Judge Court of Appeal (Coulson LJ and Jeremy Baker J) they considered that it was not appropriate for the judgment in Boateng to be departed from, although they hoped that the issue should be revisited by the full court in an appropriate case.

It does not appear that the Court had drawn to its attention the case of R v Dixon [2013] EWCA Crim 601, where at para 25 it was said that: –

“It is very difficult to see how one can say that the circumstances where a person who knows that she has received a package from a man of violence (even though the violence might not have been associated with guns), without enquiring, who then finds that what she has is a gun, of a particularly dangerous kind, can be said, on its own to amount to exceptional circumstances. We cannot accept that that factor was, in the circumstances of this case, even taking into account the very difficult personal circumstances would amount to exceptional circumstances. It would, in our judgment, subvert the policy of Parliament. It is so important that we uphold that solely for deterring those who use guns from depositing them with people and to deter anyone from taking a package from someone known to be violent without enquiring. It may seem very harsh to this particular individual, but it cannot be described as anything that is arbitrary because it follows a clear policy designed to deter the use of guns. It is applied in a case where there were circumstances which show that proper enquiry ought to have been made, given the character of the man from whom she received the gun.”

Dixon was a three-judge Court of Appeal.

Therefore, since the facts of the present case, as set out in the uncontested basis of plea, were so similar to the facts in Boateng, and ignorant of the decision in Dixon the Court considered that the decision in Boateng was binding upon the court, and the defendant’s lack of actual knowledge of what she was storing amounted to an exceptional circumstance.

Accordingly, the sentence of five years’ detention was quashed and replaced with a sentence of three years and nine months’ detention.

The case illustrates the importance of any basis of plea submitted in a firearms case, which might attract the minimum term being scrutinised with care and perhaps, the prosecution even requiring a defendant to give evidence in support of the assertion in a ‘Newton’ hearing, where the assertion can be tested in cross-examination.

That being said, the author anticipates a definitive rejection of the principle in Boateng in the New Year.

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