CRIMINAL APPEAL COURT GAIL COCHRANE v HMA

The Appeal Court has quashed a sentence of five years imprisonment and substituted an order requiring the appellant Gail Cochrane to perform 240 hours of community service.

On 26 April 2010 at a Preliminary Hearing in the High Court at Edinburgh Gail Cochrane pled guilty to being in possession of a prohibited weapon, namely a browning 7.65mm self-loading pistol, contrary to section 5(1)(aba) of the Firearms Act 1968.  Such an offence carries a minimum penalty of five years imprisonment in the absence of “exceptional circumstances relating to the offence or to the offender” (s 51A(1) and (2)).  Gail Cochrane was subsequently sentenced to imprisonment for a period of 5 years.

The appeal in this instance was primarily concerned with the question whether “exceptional circumstances” relating to the offence or to the offender existed.

In June 2009 police officers went to the appellant’s house in order to look for her son.  The appellant allowed the officers to search the house, but during the search the officers found a handgun underneath the mattress of the appellant’s bed.  She told the police that it belonged to her and that it had previously belonged to her father, who had died about 28 years previously. 

She had found the pistol among her father’s possessions when he died. Her father had served in the Royal Navy during the Second World War and the pistol was with other articles relating to his wartime service.  She believed it to be a real gun but said that that it did not occur to her that she needed a licence for it.   While it was in poor external condition it was still in working order and capable of firing bullets.  She had no ammunition for it. 

A Social Enquiry Report prepared for the court highlighted that the appellant had a high level of involvement with her grandchildren as their mother, her daughter, had a drug problem. The appellant was said to be very concerned about the effect which her receiving a custodial sentence might have on her grandchildren.  She was concerned that the risk of the children being taken into care would be increased if she was not there to provide daily support. 

The appeal was brought on the basis that the sentencing judge erred in concluding that exceptional circumstances did not exist.  However, the court noted that the sentencing judge did not appear to have important aspects of the relevant authorities drawn to her attention. The Crown conceded at the appeal that the appellant was unaware that her possession of the pistol was unlawful

In reaching its decision to quash the sentence the Appeal Court noted the following points: 

  • It was not apparent that the sentencing judge took account of the appellant’s evidence that she was unaware that she needed a licence for the pistol.  
  • No significance appeared to have been attached to the appellant’s role in the care of her grandchildren, which should have been considered as part of the circumstances as a whole. 
  • The sentencing judge’s interpretation of “exceptional” had been too abstract. Exceptionality had to be judged in the context in which the question was being asked, with regard to Parliament’s intention and the need to avoid sentences which were arbitrary and disproportionate. 
  • The possession of a prohibited weapon was normally a sufficiently serious offence to require the imposition of a term of imprisonment of at least five years for the purpose of deterring the commission of other such offences.  If however, taking into account all the circumstances relating to a particular offence or a particular offender, such a term of imprisonment appeared arbitrary and disproportionate, that case was an exception to the norm. 

Considering the present case in that context, the Court identified a number of factors which were particularly significant in determining the issue of exceptional circumstances [para 20]. One significant and unusual feature is that the pistol was a wartime souvenir which had been in the possession of the appellant’s father since the Second World War and had been found by the appellant amongst his effects. This was not a case of a weapon being deliberately acquired. 

A second important and unusual feature is that the court has to proceed on the basis that the appellant did not know that her possession of the pistol was unlawful.  A deterrent sentence will have no deterrent effect upon those who have no idea that they are doing anything wrong. 

The appellant has already spent six weeks in prison as a consequence of the sentence appealed against.   Bearing in mind the appellant’s early plea of guilty, the low risk of re-offending and her personal circumstances, the court concluded that it could appropriately impose an order for community service. 

The court therefore quashed the sentence of five years’ imprisonment in respect of each charge and substituted an order requiring the appellant to perform 240 hours of community service. 

The decision in this case was not unanimous.  Lord Reed and Lord Marnoch supported the decision to allow the appeal, while Lord Carloway dissented.

NOTE

This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for that decision. The full opinion of the Court is the only authoritative document.

You can read the full Opinion here.

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