Mercy! Dundee gun granny freed...

"Oh learned judge! Most upright judge! A Daniel come to judgement!", as Rumpole might have said. Remember the case of Gail Cochrane? She was the unfortunate Dundee granny who kept her old father's service revolver as a last memento of the dead man. It had been in her possession for some 28 years. Despite its corroded and scratched external condition, a firearms expert suggested that the gun, which was of Czech manufacture from around 1927, could still fire bullets. This Browning self-loading pistol was discovered under a mattress during a police raid on her house (seeking out Cochrane's son on an outstanding arrest warrant). She was prosecuted under the Firearms Act 1968 as amended, and pleaded guilty to two charges, including unlawful possession of a firearm under §5 of the 1968 Act.  Today she has reason to be immensely grateful to Lords Reed and Marnoch. As do we all.

The technical devil emerged from his cloud of brimstone when she was sentenced. Since 2003, the offence of which Cochrane was convicted carries with it a minimum custodial penalty - five years lodging at Lizzie Windsor's pleasure. However, the Act allows a judge to alleviate the harshness of the punishment in individual cases, allowing them to set aside the quasi-mandatory minimum jail term if "the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify" non-imposition of the statutory minimum penalty (§51A(2)). Through her legal representatives, the unfortunate Cochrane was unable to convince Lady Smith, sentencing, that her case fell within the ambit of circumstances exceptional. Sending Cochrane to jail for five years, the judge told her that:

"I have reviewed everything that has been said but I am not satisfied that a reasonable explanation has been put forward for not handing this gun into the authorities over the 29-year period she had the gun in her possession. I have considered all the circumstances in this case. I cannot find this is one of the rare cases when exceptional circumstances exist."

Cochrane appealed against this decision. Today, the High Court of Justiciary's Court of Criminal Appeal issued its opinion on her case. In his remarks, Lord Reed characterised this as a "difficult and anxious case". Interestingly, the Advocate Depute, appearing for the Crown, frankly admitted in the course of the hearing "that there had been some debate within Crown Office as to whether to bring the present proceedings against the appellant". Handing down his judgment, with which Lord Marnoch agreed, Lord Reed emphasised that:

"...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."

Having outlined the relevant features of Gail Cochrane's circumstances, which he argues "collectively make it possible to conclude that this is a case where the court was not required to impose the minimum sentence" he held that:

"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. "

Quashing her prison sentence, Reed & Marnoch agreed that Cochrane would perform 240 hours of community service in the alternative. She has already spent six weeks in prison, while this appeal was pending.  Significantly, and rather unusually in appeals of this short, Lord Carloway dissented from the narrow majority, arguing that:

"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.".

For my part, intellectually speaking I tend to agree with Lord Carloway's assessment - but staunchly welcome the righteous verdict of Lords Reed and Marnoch. Cochrane's five year sentence wasn't the unreasonable application of a reasonable law but simply reflected what our parliaments are doing when they seek to curtail judicial discretion and install minimum sentences. Cochrane's grossly excessive, unjustifiable, half-decade jail term reflects precisely what mandatory minimum sentences are all about, deaf to understanding, excuses, circumstances. They mandate "draconian, unjust and disproportionate" sentences in cases just like this one. It is their modus operandi. That may be so, but intellectual stringency cannot justify the prison term which was imposed. I've no interest in creating martyrs whose lives will be wrecked, in order for our legislators to realise the errors of their ways. Lords Reed and Marnoch exercised their mercy and sense here today. You can read their judgement in full here.