Rehman, R. v

Both these appeals against sentence are listed together so that this court may consider the application and interpretation of the mandatory minimum sentencing provisions in respect of offences committed contrary to section 5 of the Firearms Act 1968 ("the Firearms Act"). The provisions were inserted into the Firearms Act as section 51A of that Act by section 287 of the Criminal Justice Act 2003 (the "CJA").

Section 51A of the Firearms Act has been effective since 22 January 2004. Section 51A provides so far as relevant:

This appeal is primarily concerned with subsection (2) of section 51A. More particularly it is concerned with what is capable of constituting "exceptional circumstances relating to the offence or the offender" for the purpose of section 51A. Section 51A of the Firearms Act sets out a series of circumstances in which it is unlawful to be in possession of, or purchase, or acquire, or manufacture, or sell, or transfer a list of different firearms. Of that list one which is selected for falling within section 51A is (aba): any firearm which either has a barrel less than 30 centimetres in length or is less than 60 centimetres in length overall, other than an air weapon, a muzzle-loading gun or firearm designed as a signalling apparatus.

The weapons, with which we are concerned, are ones in relation to which Parliament by section 51A has signalled it was important that there should be imposed deterrent sentences. By "deterrent sentences" we mean sentences that pay less attention to the personal circumstances of the offender and focus primarily upon the need for the courts to convey a message that an offender can expect to be dealt with more severely so as to deter others than he would be were it only his personal wrongdoing which the court had to consider.

In the case of Mr Rehman his sole conviction was for having in his possession a firearm which fell within section 5(1)(aba) of the Firearms Act. In the case of Mr Wood it was count 9 on the indictment which involved such a weapon. When we come to examine the circumstances of Mr Wood's sentence, the fact that one of the weapons falls within the category, possession of which involves contravening section 5(1)(aba) of the Firearms Act, is a matter of considerable importance.

The first submission which is made by Mr Farrell QC on behalf of the appellant Gary Wood is that the mandatory minimum sentence of five years' imprisonment is incompatible with the European Convention on Human Rights. Mr Farrell submits that section 51A requires the court to impose sentences that constitute inhuman and degrading treatment or punishment that contravenes Article 3 of the European Convention on Human Rights. Sentences which could result in arbitrary and disproportionate deprivation of liberty in violation of Article 5 or Articles 3 and 5 when read together. He submits that it is not possible to read down section 51A so as to make it compatible with Mr Wood's rights under the Convention. Accordingly Mr Farrell seeks a declaration to that effect. Mr Farrell did not appear in the court below and it was only at a late stage that he was able to deliver a skeleton argument raising this point for the first time.

Mr Hardy, who appears on behalf of the appellant Mr Rehman (although he did not appear below) does not adopt this submission. As the contention is dependent on the proper interpretation of section 51A, we do not propose to deal with Mr Farrell's first submission until we have set out our views on his next submission because it is only when we have set out our views as to how section 51A(2) is to be interpreted that there can be any question of incompatibility. In those circumstances Mr Farrell has reserved his full argument on incompatibility until he has had an opportunity of considering this judgment. This has an advantage because if we were going to contemplate acceding to his first submission, we would adjourn so that the necessary notice can be given to the Crown under section 5 of the Human Rights Act and the relevant Criminal Procedure Rules.

The second submission upon which Mr Farrell relies is a submission which is supported by Mr Hardy on behalf of Mr Rehman. It is as to the proper interpretation of section 51A(2), having regard to the obligation of the court under section 6 of the Human Rights Act 1998 and section 3(1) of that Act. These sections require the court not to act in a way which is incompatible with a Convention right and as far as it is possible to do so, to give effect to primary legislation in a way which is compatible with Convention rights. Insofar as it is necessary to do so, Mr Farrell and Mr Hardy both contend that it is necessary so as to achieve compliance with the Convention to give a wide interpretation to the reference to "exceptional circumstances" in section 51A.

The third issue that arises on the appeal, which has been the subject of submissions by both Mr Farrell and Mr Hardy, is whether in each case the respective trial judges should have decided that these were circumstances relating to the offence or the offender to justify not imposing the minimum sentence of five years. In Mr Rehman's case (although this is not of direct relevance because of the period he has already served in custody) it is submitted that no custodial sentence should have been imposed. In Mr Wood's case it is submitted that a lesser sentence than five years' imprisonment should have been imposed. The way the matter is put on Mr Wood's behalf is particularly relevant when we come to set out the sentences which were imposed upon him.

It is not necessary to set out the provisions of Article 3 and Article 5, but it is necessary to refer to R v Offen and Others [2001] 1 Cr App R 372. In Offen the Court of Appeal considered a different mandatory requirement, a mandatory requirement which created an obligation to impose a life sentence under section 2 of the Crime (Sentences) Act 1997 when a person is convicted for a second time of a serious offence. By section 2(2) of that Act the court is then obliged to impose such a sentence unless it is of the opinion that there are exceptional circumstances relating to the offences or to the offender which justify it not doing so. There is a provision in that Act requiring the court to state, when it is of the opinion that there are exceptional circumstances, what those exceptional circumstances are. There is no similar provision relating to section 51A.

In Offen the Court of Appeal adopted the general definition of the word "exceptional" given by Lord Bingham CJ in R v Kelly [2000] QB 198. Having done so, the court went on to consider the impact of the Human Rights Act 1998 in regard to the statutory provision which the court was there considering. The court also considered R v Buckland [2000] 1 WLR 1262, in which Lord Bingham CJ had stated at page 1269 that in that case on all the evidence it was safe to conclude that the defendant does not present a serious and continuing danger to the public such as could justify the imposition of a life sentence. We refer to those words of Lord Bingham in Buckland for two reasons. First, they show that he was focusing on cases requiring consideration of whether there are exceptional circumstances when there is a need to look at all the circumstance involved. Then it is not appropriate to look at each circumstances separately and to conclude that it does not amount to an exceptional circumstance. A holistic approach is needed. There will be cases where there is one single striking feature, which relates either to the offence or the offender, which causes that case to fall within the requirement of exceptional circumstances. There can be other cases where no single factor by itself will amount to exceptional circumstances, but the collective impact of all the relevant circumstances truly makes the case exceptional.

The second reason why it is necessary to have Lord Bingham's words in mind is because the provisions that were considered in Offen and in Buckland had a different objective from those that are being considered here. The statutory provisions in Offen and in Buckland were concerned with the importance of protecting the public against the dangerous activities of the particular offender. In the case of the Firearm Act the focus is different. So far as we can determine the rationale of Parliament, the policy was to treat the offence as requiring a minimum term unless there were exceptional circumstances, not necessarily because the offender would be a danger in the future, but to send out the deterrent message to which we have already referred. The mere possession of firearms can create dangers to the public. The possession of a firearm may result in that firearm going into circulation. It can then come into possession of someone other than the particular offender for example by theft in whose hands the firearm would be a danger to the public. Parliament has therefore said that usually the consequence of merely being in possession of a firearm will in itself be a sufficiently serious offence to require the imposition of a term of imprisonment of five years, irrespective of the circumstances of the offence or the offender, unless they pass the exceptional threshold to which the section refers. This makes the provision one which could be capable of being arbitrary. This possibility is increased because of the nature of section 5 of the Firearms Act. This is different from most sections creating criminal offences. In the majority of criminal offences there is a requirement that the offender has an intention to commit the offence. However, firearms offences under section 5 are absolute offences. The consequence is that an offender may commit the offence without even realising that he has done so. That is a matter of great significance when considering the possible effect of section 51A creating a minimum sentence.

In Offen the court went on to deal with the general approach to the impact of the Human Rights Act on mandatory sentences. We draw attention to paragraphs 93-95 and 99 where the court said:

Before proceeding further it is necessary to determine the meaning of section 51A(2) in accordance with the ordinary principles applicable to statutory interpretation. This involves seeking to determine the meaning of the language used by Parliament in its statutory context. It is to be noted, as already pointed out, that part of the context is that section 5 of the Firearms Act creates an absolute offence. Secondly, the purpose of the provision is to ensure that absent exceptional circumstances the courts will always impose deterrent sentences. However, it is to be noted that if an offender has no idea that he is doing anything wrong, a deterrent sentence will have no deterrent effect upon him. The section makes clear that it is the opinion of the court that is critical as to what exceptional circumstances are. Unless the judge is clearly wrong in identifying exceptional circumstances when they do not exist, or clearly wrong in not identifying exceptional circumstances when they do exist, this court will not readily interfere.

The reference in the section to the circumstances of the offender is most important. We have no doubt that the fact that an offender is unfit to serve a five year sentence may be relevant, as is the fact that he or she is of very advanced years. This is necessarily to be read into the words used, otherwise a sentence may be inappropriately harsh and even fall within the language of article 3 of the European Convention. Finally, we emphasise what we have already referred to in this judgment, the importance of not dividing the circumstances into those that are capable of being exceptional and those which are not.

In our judgment, we do not regard this as being a situation where it is necessary to read the section down, relying on section 3 of the Human Rights Act 1998 so as to comply with the Convention. We consider that the words are clearly capable of being interpreted as complying with the Convention. This is an interpretation which is made easier by the fact that Parliament passed the provision as part of the 2003 CJA which was passed in the knowledge that the section had to comply with the Human Rights Act. Furthermore, it can be assumed that Parliament had the decision of Offen in mind when it selected the same language for the exception. There was a suggestion that in this case we might find it helpful to look at the statements of Ministers made both in Parliament and outside Parliament to assist us interpret the section. But in our judgment this is unnecessary and indeed would be inappropriate. It is clear in our judgment that, read in the context to which we have referred, the circumstances are exceptional for the purposes of section 51A(2) if it would mean that to impose five years' imprisonment would result in an arbitrary and disproportionate sentence.

Zakir Rehman appeared before His Honour Judge Joseph at the Croydon Crown Court on 14 January 2005. He pleaded guilty to an offence contrary to section 5(1)(aba) of the Firearms Act 1968 of having in his possession what was described as a Kimar Beretta venting handgun which was less than 60 centimetres long overall and with a barrel less than 30 centimetres long. It was a replica blank-firing handgun, but it was a type of handgun which, although a replica, could easily be altered so as to be capable of firing live ammunition. It is a type of firearm that has been used in the commission of many criminal offences by offenders who know that it has this capacity.

Mr Rehman was sentenced to five years' imprisonment. It is clear that the reason why he was sentenced to five years' imprisonment was because the judge considered that he had to impose the minimum sentence required by section 51A because there were no exceptional circumstances in the case.

The facts are very straightforward. The appellant Mr Rehman is aged 24. He was a collector of models. He purchased the replica firearm via a French internet site. He did so in his own name; he used his own credit card and had it delivered to his home address which he shares with his parents. He intended to display it. He decided not to. He put it into a box under his bed and left it there. It was there when the police arrived on 5 November 2004. They had obtained a search warrant because they had information that Mr Rehman had ordered the firearm in question over the internet. Mr Rehman was clearly very easy to trace. He showed them where the gun was. He told the officers that he did not think it was illegal to own the gun. That is no defence, but it is very relevant when considering whether there are exceptional circumstances. In this case it was not contested by the Crown that Mr Rehman had every reason to believe that the gun was not one which it was illegal to possess.

When delivered, the gun came together with oil and a cleaning brush for its use. This presumably was because it can be converted. When interviewed, the appellant Mr Rehman said that he did not know that the gun could be converted.

Mr Rehman had a positively good character. He has a degree from Imperial College. He was working for Customs and Excise. His training was continuing. The judge heard from a senior executive officer in whose team Mr Rehman was. Their view of him is demonstrated by the fact that, even when this matter came to light, they did not suspend him. It was only when he was sentenced by the court that he lost his employment with them. Mr Spence, the officer concerned, was totally amazed that Mr Rehman was in this position. He had created a most favourable impression on those with whom he had come into contact.

It will be seen from Judge Joseph's sentencing remarks that, although counsel sought to argue exceptional circumstances on Mr Rehman's behalf, the judge was unable to conclude that they existed here. However, as the matter was advanced before the judge, reliance was not placed upon all the matters that could be urged upon his behalf because counsel took the view that certain of the circumstances were irrelevant. As we have already indicated, we consider that this approach was not the correct one, although that may not have been clear from the authorities which now exist in relation to the interpretation of section 51A in particular, which from time to time tend to focus on a particular circumstance rather than the circumstances as a whole.

Gary Wood is aged 41. He is also of extremely good character. He was sentenced to a total of five years' imprisonment in respect of nine counts. Counts 1 and 2 charged possession of a prohibited weapon, contrary to section 5(1)(b) of the Firearms Act 1968. Count 1 concerned a blank firing pistol and count 2 another pistol. He was sentenced to concurrent terms of five years' imprisonment on those counts because the judge was wrongly under the impression that they were counts to which section 51 applied. In fact that section does not apply to those counts, though the judge can be forgiven for making the mistake that he did, bearing in mind that counsel who appeared before him acted on the assumption that the section did apply. Counts 3, 4, 5 and 6 charged possessing a firearm without a certificate, contrary to section 1(1)(a) of the Firearms Act. In relation to that offences the appellant Mr Wood was sentenced to concurrent terms of twelve months' imprisonment. There is no appeal in regard to those sentences. Count 8 charged the shortening of a shotgun, contrary to section 4(1) of the Firearms Act. Again he received concurrent terms of twelve months' imprisonment. Count 9 was the offence to which section 5(1)(aba) of the Firearms Act applied. The firearm of which he was in possession was a single barrelled hammerless shotgun with a barrel less than 30 centimetres long. He was sentenced to five years' imprisonment in respect of that offence, that sentence to be concurrent with the sentence in respect of the first two counts. Finally, count 10 charged theft. In respect of that the sentence was one of eighteen months' imprisonment concurrent.

In relation to counts 1 and 2, as the judge was under the misapprehension to which we have referred, it is necessary for us to impose the appropriate sentence which would have been imposed but for the judge's error. We consider that the appropriate sentence is twelve months' imprisonment. That appears to have been the sentence which the judge would have had in mind if he had not thought that the minimum term was the appropriate sentence. We therefore quash the sentences of five years' imprisonment and substitute sentences of twelve months' imprisonment.

The facts in relation to Mr Wood's offences are as follows. As a result of an investigation conducted into a company which was selling imitation firearms over the internet, on 30 September 2004 the police went to Mr Wood's home. He was arrested and interviewed. During the course of the interview he indicated, as must have been apparent to the police, that he was a collector of weapons. There are photographs before this court which show the scale of his collection. It is true that most of the collection was secured in locked cabinets. But in the loft was the shotgun which had had its barrel shortened. Apparently it was a weapon that had been inherited by Mr Wood from his grandfather.

Count 10 related to munitions. Those munitions had been stolen at the time when Mr Wood was acting as a cadet instructor. He said that he intended to return the munitions in due course as he attended other events involving the cadets, but apparently they had become obsolete and so this could not be achieved. Altogether it took two days to search the appellant's house. All the weapons had been broken down as far as possible for safety reasons. Mr Wood clearly had a very considerable knowledge of firearms of the sort that were found in his home.

He had extremely impressive references. He was the manager of a surveillance company. He had carried out important work with Army cadets. He had provided help to the police. On one occasion he had confronted a violent criminal. Apart from these matters, he was a most responsible and impressive individual.

It is necessary to pay particular attention to the remarks of Judge Fish when sentencing him. He said:

Against that background we turn to see whether the sentence in the case of Mr Rehman in respect of one count is a sentence with which this court can and should interfere. In approaching that matter we are greatly assisted by the careful and helpful arguments advanced by Miss Bennett-Jenkins for the Crown. She was somewhat embarrassed by her late instructions in this matter, but she provided a most useful skeleton argument which she has supplemented. Both in regard to Mr Rehman, with whom the court is dealing at the moment, and Mr Wood, she accepted that, in properly applying the authorities which now exist in this area in regard to section 51A in particular and to mandatory terms of imprisonment, subject to exceptional circumstances, these are cases where, looking at the circumstances as a whole, it would be proper to come to the conclusion that there exited exceptional circumstances which justified not imposing the minimum term. She says that this was a judgment to which the trial judge could properly come.

On the facts of Mr Rehman's case, which we have already set out, we have decided that the judge was wrong not to conclude that the case was one involving exceptional circumstances. The background of Mr Rehman was particularly important; but so was the fact that he had no knowledge of the unlawfulness of the one weapon that he had in his possession which contravened the provisions of section 5 of the Firearms Act and therefore resulted in the application of section 51A. It is perhaps not the clearest case because it is not possible to identify one particular circumstance, but looking at all the matters that were relied upon by counsel who appeared for him in the court below and by counsel who appears for him today it falls on the right side of the line. Those matters are set out in the skeleton argument at paragraph 13 as follows:

We therefore have to decide what term would be appropriate in these circumstances. The appellant, Mr Rehman, has now served the equivalent of over twelve months' imprisonment. Suffice it to say that while we would regard a custodial sentence as necessary in this case so as to achieve the deterrent message that Parliament intended, a period of twelve months would have been sufficient. We therefore quash the sentence of five years' imprisonment and substitute a period of twelve months' imprisonment. That means he can now be released.

We turn to the case of Mr Wood. We have given his case most anxious consideration, as did the judge who sentenced him. As we have already indicated, there is a great deal to be said in the appellant's favour. But having regard to his situation and his circumstances, we have reluctantly come to the conclusion that we would not be properly applying the statutory provision imposed by Parliament if we interfered with the sentence of five years' imprisonment which was imposed on count 9. As the trial judge indicated, he of all people should have understood that this was not the sort of weapon which should have been in his possession. He did not take the action which he should have done to check whether it was lawful to possess it. The fact that he had committed the other offences demonstrates that he did not attach sufficient significance to the very strict statutory provisions which apply to the possession of firearms. The other offences are not ones to which section 51A applied. But they showed on his part a carelessness with regard to the possession of firearms which prevents us treating the circumstances as exceptional. Accordingly, in relation to count 9 of the indictment to which he pleaded guilty, we have come to the conclusion that the sentence of five years' imprisonment must remain. Accordingly, the appeal will be dismissed with regard to count 9. The overall sentence that he will have to serve is one of five years' imprisonment.

We are grateful for the assistance that we have received. Mr Farrell, what happens now with regard to your incomputably argument?