18 November 2010

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.


  1. "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."

    I'm sorry, m'lud, but what democratic process would that be? I don't remember this being in the manifesto of the Labour government which was elected by a mere 21.6% of the electorate.

    This law did not come about through any democratic process—merely the capricious whims of one of the most authoritarian, illiberal governments this country has ever seen.


  2. Why was it tucked under a mattress rather than displayed in a nice glass and veneer case atop the family mantelpiece?

  3. This case has now taxed the brains of no fewer than six Senators of the College of Justice. Three of them (Lady Smith, Lord Hardie and Lord Carloway) considered the minimum five years was merited by the facts as proven, and three (Lord Clarke, Lord Reed and Lord Marnoch) felt there were exceptional circumstances.

    While I think the appeal decision was the right one in the circumstances, we are still left with the absurdity of a statutory minimum sentence and a waiver in exceptional circumstances that is so vague nobody is really any the wiser as to when the court should exrecise leniency.

  4. DK,

    Good luck finding any judge brave enough to voice that sensibility! Frankly, its extraordinary - given the closely divided nature of successive deliberations which the_voice_of_reason outlines - that the case ended in the way it did. Thank heaven for small mercies.

  5. Mark,

    Your question made me wonder - what has become of the gun now? Chucked into a dustbin by the Crown? Decommissioned? Returned? Still, it does seem a curious place to tuck your hierlooms. Given the habit, rather lucky that Paw Cochrane wasn't a gallant knight errant, leaving his daughter a jaggy skull-cracking mace...

  6. the_voice_of_our_own,

    I had wondered which judges sat on the earlier deadlocked sentencing appeal panel which Lord Reed rather airily refers to. Quel surprise that Hardie was all for flinging her in the slammer...

  7. Ahem hem. I seem to have mistaken you for another commenter and deprived you of your "reason". Heartfelt apologies!

  8. It's the old thorny question between doing what's just and doing what's fair.

    I'm glad a balance has been struck appropriately no matter how delicate a job it is.

    {And if lots of people keep their low interest earning hard earned under their mattress why not a mouldy old unloaded pistol?}

  9. I agree with DK: there was precious little democracy involved in making this law - but then the same is true of any of 'em. And it is quite possible that the Great British Public would have voted in a referendum for these moronic quasi-compulsory minimum sentences. Evidently that is what our own gallant tribunes of the Labour Party appear to believe in respect of knives. The fault is investing the end-product of Bismarck's sausage machine with awe-struck sanctity when actually we regularly need courts to protect us from the lunacy of the legislature: something normal countries admit openly via their constitutions. In this case Lord Reed reached the right result; but I confess to being a bit unhappy that he reached it by pretending that howling ignorance on the part of Ms Cochrane might be an extenuating factor!

  10. Drat. Just realised now that the proper title for this post should have been Granny get your gun. Ho hum. No alternative tabloid career for yours truly. I imagine most folk will agree with you Alistair - and on Am Firinn's point - this case is likely to please the sociologist of law who thinks that we shouldn't see reasons as simply constitutive of judicial decision-making, but as (often) post-hoc justifications of particular choices which minimally relate to the reasons deployed.

  11. Mark...

    'She kept it, in a box, at several different addresses, initially in the loft, then in an unlocked cupboard under the stairs, then in an unlocked wardrobe. Latterly, she kept it under her mattress. She claimed to have done so in order to prevent her grandchildren from finding it, but that explanation was disbelieved by the sentencing judge.'

    'Although most adults could be expected to realise that the unauthorised possession of a firearm was unlawful, the possibility of sheer thoughtlessness (particularly in respect of a wartime souvenir), or abject ignorance, cannot be dismissed out of hand.'

    I believe Ocam was known to keep his shaving instrument beneath his mattress.