11 July 2010

Jail for granny: the Cochrane case & mandatory minimum sentences

"Why is a minimum sentence in place for gun carriers but not for knife carriers?" asked Iain Gray at the last FMQs before the summer recess. Why indeed, we might well wonder, given the  facts and circumstances of the recent criminal case against Gail Cochrane of Dundee, conducted before Lady Smith in Edinburgh's High Court. Some of you may have read the Spectator's Alex Massie's and the Devil's Kitchen's earlier, excoriating remarks on this prosecution. I associate myself with their  general attitude. I'm coming to this story very late, but reason that a delayed mention is preferable to no mention at all. Given recent political arguments in Holyrood about the efficacy and virtues of minimum sentencing - and given the probable reappearance of the policy in Labour's 2011 Holyrood manifesto - we shouldn't let the issue slip from our mind too readily. Gail Cochrane's case is a salutary and practical example of what happens when judicial discretion is fettered by a mandatory minimum sentence that may, of itself, strike some people as ostensibly reasonable. For myself, I'd argue that this isn't an unreasonable application of a reasonable law but simply the unreasonable harvest of an unreasonable and illiberal piece of legislation. The Cochrane case is not a problematic exception to smart the conscience - but precisely what mandatory minimum sentences are about
Their result? A woman of very questionable culpability and of no apparent danger to her fellow citizens will be spending five years in a Scottish prison. Massie and his commenters are right to urge a measure of caution - since we don't have all of the evidence to hand. There is undoubtedly some background murk involving Cochrane's son. Even so, prima facie the sentence is bonkers. Cochrane's solicitor described the five-year minimum as "draconian, unjust and disproportionate" punishment. I agree. Even if there might be incriminating details which have not leaked into the public domain and even if , for the sake of argument, we were to assume some jiggerypokery on Cochrane's part - I cannot fathom the justness or justifiability of plucking her from the streets and condemning her to half a decade behind bars. Prison is clearly an unnecessary expedient, even if, in all the facts and circumstances, she isn't washed whiter than white in the blood of the lamb.

Section 287 of the Criminal Justice Act 2003 amended the Firearms Act 1968, directing that where an accused person is convicted of various offences outlined in §5 of the 1968 Act, including unlawful possession of a firearm:

§51A(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.
§51A(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, and
(ii) in the case of an offender who was aged under 21 at that time, three years.

As you'll note from the BBC report, Cochrane was prosecuted under this section and admitted possession of the gun, in this case a service revolver belonging to her deceased father during his service in the Second World War. Dundee's Courier coverage includes a little more detail about what transpired at the hearing in Edinburgh. Sentencing, Lady Smith rebuffed Cochrane's solicitor's pleas for clemency - and denying the exceptionality of his client's case for the purposes of §51A(2) - saying:

"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."

And of course, Lady Smith must be right. It seems very likely that across Britain, a significant number of people may keep old weapons about their houses, carried to war by past generations. That members of the populace might be moved to keep such curious and potentially deadly mementos of their dearly departed is surely something which may have occurred to our parliamentarians, voting on the 2003 Act. Who is the Court to second-guess the will of our democratic assemblies? On an individual basis, it is clearly a pity that Lady Smith didn't use her unarguable discretion to blunt this piece of parliamentary nonsense and deliver Cochrane from incarceration. However, what seems to me to be crucial here is not to fall into the ideological trap of seeing this as an individual case, personal tragedy, an exception. Such excuses, while undoubtedly critical of the regime of mandatory sentences, risk serving primarily to sustain their application. A tyrant's act of compassion may quiet critical voices, and thereby extend his tyranny.  Mandatory minimum sentences are precise instruments for stripping out individual facts and circumstances, sidelining and ignoring a situated understanding of why the prisoner did what they did. In short, such rules are precisely for ignoring the sorts of arguments advanced by Cochrane's solicitor.  That is their function, their intention - in Cochrane's case - their unjust triumph. This case is legislative intention in action, pure and simple.


  1. Thank you for this, Lallans, and for directing me to Devil's Kitchen, whose evident outrage I share. In fact, reasonable as his single criminal offence is, someone already said it 1500 years ago:-

    Principia juris sunt haec:
    - honeste vivere;
    - alterum non laedere;
    - suum cuique tribuere.

    There we have it. This law is a contravention of the principles of the law their very selves.

  2. Excellently quoted, Anonymous!

    I'm not sure I agree that life can realistically be as simple as DK argues. I take an interest in the arguement, however. Even so I very much appreciate the Roman legal citation. Summons me back to my (much enjoyed and subsequently curiously useful and interesting) days studying Civil Law in Edinburgh Law School.

    I think the mysterious author was the Roman jurist Ulpian, quoted at the very beginning of the Pandectae in Justinian's Corpus Iuris Civilis. Splendid, splendid.