A five year old girl, Thusha Kamaleswaran, was shot through the spine and paralysed from the waist down for life, in March 2011. She was in her uncle’s shop in Stockwell, London, when two bullets were fired from a gun by a gang member from outside into the shop. Three men were put on trial for the shooting, and convicted at the Old Bailey on 26th March 2012.  The jury at the trial were shown CCTV footage of Thusha skipping happily in the aisle in her pink dress and red cardigan shortly before she was struck.

On Twitter, following the conviction, calls were made for the minimum mandatory sentence for possession of a firearm to be increased from five years’ to 10 years’ imprisonment.  On the contrary, I propose the abolition of the minimum sentence entirely.

A person found to be in possession of a firearm is subject to a minimum sentence of five years’ imprisonment (if they are over 18): section 51A of the Firearms Act 1968. The definition of ‘firearm’ for the purposes of the 1968 Act is defined in section 5 – it includes possession of various types of specified pistols, shotguns and revolvers.

Possession
‘Possession’ is a term defined widely in law. In the 1968 Act a person can be in possession in a wide variety of ways.

Possession does not mean ‘physically holding’ the item. A person need not even be present in the place where the firearm is kept to be in possession. For example if they have locked it in a safe at their home they are in possession.

The possession of the firearm need only be for a very short period.

A person can be in possession of a firearm without actually knowing it. If the prosecution prove that an accused knowingly had in his possession an article which in fact was a bag containing a firearm, but which he thought was a bag containing a crowbar, he is said by law to be in possession of the firearm. The accused’s ignorance is immaterial (R v Waller [1991] Crim. LR).

The reason for the possession of the firearm is wholly irrelevant, however innocuous.

Because the term ‘possession’ is defined so widely and the minimum term of five years’ imprisonment is mandatory, it follows that the punishment can be arbitrary and disproportionate. The fact that a defendant may have no previous convictions, and even exemplary character references, is no bar to the mandatory minimum term.

Deterrent effect
In 2010 Gail Cochrane, aged 53, pleaded guilty to possessing an 80-year old Browning self-loading pistol. She had kept the gun at her home for 29 years following the death of her father (who had been in the Royal Navy). She thought it was just his war trophy. There was no ammunition for it. She was sentenced to five years’ imprisonment.

In 2006 Gary Wood pleaded guilty to possessing a shortened-barrelled shotgun which he kept in his loft. He had inherited it from his grandfather. He was co-operative and helpful with the police, had never been in trouble with the law before, was aged 41, and had what were described as ‘glowing references’.  He was sentenced to five years’ imprisonment (sentence upheld in the Court of Appeal in R v Rehman and Wood [2006] 1 Cr App R (S) 404).

Ms Occran, a 24-year old single mother of good character, pleaded guilty to possession of a pistol, a shotgun and a silencer found under the wardrobe in her bedroom. Another person had stored the items there (three weeks before they were found) without telling Ms Ocran who at the time was living with, and looking after, her ill mother at another address. Once Ms Ocran returned to live at her home she found the items (presence unknown to her before then) and failed to notify the police. She was sentenced to five years’ imprisonment (sentence upheld in the Court of Appeal in R v Ocran [2011] 1 Cr App R (S) 36).

Mr Robinson, who was suffering from depression, took a gun from his uncle in order to commit suicide. He aborted the suicide attempt and then stored the gun in what was described as a ‘reasonably secure place’. He was sentenced to five years’ imprisonment (sentence upheld in the court of Appeal in R v Robinson [2010] 2 Cr App R (S) 20).

The existence of minimum sentences of imprisonment are said to be a deterrent, and they may deter some people in some cases. However given that an accused can be in possession of a firearm without knowing it (for example the case of Waller), how can the fear of a deterrent sentence deter a person who is not aware he is committing the offence?

Parliament must have recognised that the minimum sentence provisions had the potential to be unfair because it included in the Act a section that allows judges to not impose the minimum term of imprisonment if the case is ‘exceptional’ (section 51(2) of the Firearms Act 1968).

Some cases of possession of a firearm have been regarded by sentencing judges as exceptional and the minimum term not applied. This additional section therefore helps ameliorate injustice, but it is not sufficient to remedy the general unfairness of this law. By definition what is exceptional will be rare. None of the four cases listed above were deemed to be exceptional by the sentencing judge and, in the three that were considered on appeal, the Court of Appeal agreed that they were not exceptional.

The unfairness is compounded by the fact that even a guilty plea by the accused to the offence of possession of a firearm will not reduce the sentence below five years. The usual principle of sentencing that there shall be a reduction in sentence to recognise a guilty plea does not apply. In other areas where the law obliges judges to pass mandatory minimum terms of imprisonment: for third time burglars (three years) and third time Class A drug suppliers (seven years), a reduction below the minimum term for a plea of guilty is available; there seems to be no arguable reason why this should not also apply to the offence of possession of a firearm.

Solution
The solution to this problem of arbitrary punishment and unfairness is as follows. First, abolish the minimum sentencing provision. Secondly invite the Sentencing Council to issue guidelines to cover firearms offences. The Council is a body that publishes guidelines to assist sentencing judges in many types of case in the Crown Court. There are guidelines, for example, for manslaughter, theft, rape, dangerous dogs and burglary.

When Parliament passed the amendment to the 1968 Act in 2003, the Sentencing Council did not exist. It does now, and the guidelines it could issue would cover a range of sentences for possession of a firearm that take into account all the aggravating features that are commonly associated with this offence. Yet it would leave a sentencing judge with discretion to impose a sentence shorter than five years’ imprisonment, in the right case, and thus prevent arbitrary and disproportionate punishment.

No one would argue that a lenient sentence for a criminal that uses a firearm to do his business is justified. The Lord Chief Justice said in 2009:

‘The gravity of gun crime cannot be exaggerated. Guns kill and maim, terrorise and intimidate. That is why criminals want them: that is why they use them: and that is why they organise their importation and manufacture, supply and distribution. Sentencing courts must address the fact that too many lethal weapons are too readily available: too many are carried: too many are used, always with devastating effect on individual victims with insidious corrosive impact on the wellbeing of the local community.’
R v Wilkinson [2009] EWCA Crim 1925.

If the minimum term is abolished and judges are able to use their discretion to impose the correct sentence in every case, they will still be able to impose sentences of imprisonment well in excess of five years.

In Thusra’s case the three defendants were all sentenced to life imprisonment.