Often when I include an article about “zero tolerance” in True, I hear from people outside the United States who claim some variation of “only in America!”
Not so, of course. Some of the most outrageous examples happen in the British Commonwealth countries, including England. Such was the case this week (the 15 November 2009 edition), with this outrage:
Zero Tolerance in the Real World
— British Division
Paul Clarke, 27, a former soldier, was on the balcony of his home in Merstham, Surrey, England, when he noticed a bag in his garden that didn’t belong to him. “I took it indoors and inside found a shorn-off shotgun and two cartridges,” he said, so he took his find to the police to turn it in — “I thought it was my duty to hand it in and get it off the streets,” he said. As soon as he handed the gun to authorities he was arrested for “possessing a firearm.” Worse, the jury for the Guildford Crown Court found Clarke guilty, and by law he must serve a minimum of five years in prison. Prosecutor Brian Stalk said Clarke’s “alleged” honesty was irrelevant, and Judge Christopher Critchlow agreed, saying “The intention of anybody possessing a firearm is irrelevant.” (Surrey Mirror) …And now we know British jurisprudence is, too.
(By “real world” I mean not in schools. I’ve been railing about ZT for well over a decade, and most cases are in schools. But, as I’ve pointed out many times, kids grow up: they leave school and get jobs. And what else do we expect from them but to practice what they’ve learned in school?)
Far From School
I think Clarke is an idiot (and I’ll get to that in a minute), but the story is not just a great example of how ridiculous such policies can be, but a great example of how other countries sometimes take our worst ideas and really work to make them even more appalling.
No one seems to be of the opinion that Clarke had anything but honest intentions when he turned in the gun. However, the anti-firearms law in Britain has a “strict liability” clause. Here’s how it’s explained in the story I used as my source in the Surrey Mirror:
Prosecuting, Brian Stalk, explained to the jury that possession of a firearm was a “strict liability” charge — therefore Mr Clarke’s allegedly honest intent was irrelevant.
Just by having the gun in his possession he was guilty of the charge, and has no defence in law against it, he added.
In other words, per the law no defense, no matter how relevant, is allowed, period. Did he have the gun in his hand, yes or no? Yes: convicted, without any inquiry as to the reason. Thus, as the judge said, “The intention of anybody possessing a firearm is irrelevant.”
Now That’s Zero Tolerance!
It’s unbelievable that any court would take such a position — unless it has no choice under the law. So the real culprits here aren’t the prosecutor and the judge, but rather Parliament, which passed such a law.
Let’s take it to an extreme (as if Clarke’s case isn’t extreme enough): a citizen could see someone about to shoot the queen, and grab the gun away from the assassin. Thus according to the law, he should go to jail for that act of “possession”! In fact, there’s “no defense” and presumably will come away from the event with a criminal record.
Therefore citizens who witness a crime in progress must choose between actively allowing someone’s life to end, or ruining their own. The evil, then, isn’t the choice, but that one has to make such a choice according to the law.
That’s zero tolerance mentality at its worst.
But Wait: It Gets Worse
How could the situation possibly be worse? Here’s how: only two newspapers in Britain have dared to publish this story — the smarmy tabloid The Sun and Clarke’s home paper, the Surrey Mirror — my source for the story.
Why in the world haven’t we seen outrage from the national British press? I don’t have an answer to that, but I’ve had a lot of comments from readers in the U.K. that they’re surprised they have not seen mention of it in their papers.
Is the British press scared to stand up against an absolutely evil outrage? I wish I knew.
No Defense Allowed, But…
One English reader who saw the story in True wrote to say that Clarke won’t necessarily end up imprisoned for five or more years. Richard in England writes:
Paul Clarke is not due to be sentenced until 11 December and it might well happen that he is given an absolute discharge; even though the offence is one of “strict liability”. Whereas I agree that the law does, thus far, seem to have been rather ass-like, let’s wait until sentence is passed before making our own judgement.
The “absolute discharge” concept is not something I’m aware of from British law. (I certainly don’t claim to be well versed in it, let alone an expert.) When there’s a minimum mandatory sentence, one would think that is what’s meant.
Of course, “Life in prison” isn’t necessarily that here, either, so there’s obviously plenty of precedent for such nonsensical rulings.
Why is Clarke an “Idiot”?
I said earlier I thought Mr. Clarke was an idiot. Why?
- He found a gun in his garden — and picked it up?! Now he has his fingerprints on it, and he has thwarted investigation of who handled it before him. He removed it from its resting place, where police may have wanted to see how it was lying, what other evidence may be around it, etc. He could have destroyed crucial evidence in a murder case, for instance — who knows? He sure didn’t, but that evidence is gone now.
- He waited until the next day to turn it in!* That just makes sure that evidence is destroyed — and casts more suspicion on himself.
*(Actually, that was clarified later — to be even worse: Clarke waited until the next day to call a police official he knew, but the official was away. Clarke thus waited four days for that official to return before taking the gun to the police station.)
- He took it to the police, rather than call them to come get it? That’s just dumb, but it’s especially dumb in a culture that’s so anti-gun as Britain. Clarke’s lawyer tried to appeal to the jury with an argument about this. The Mirror reports:
[Defense attorney Lionel Blackman] also showed jurors a leaflet printed by Surrey Police explaining to citizens what they can do at a police station, which included “reporting found firearms”.
Quizzing officer Garnett, who arrested Mr Clarke, he asked: “Are you aware of any notice issued by Surrey Police, or any publicity given to, telling citizens that if they find a firearm the only thing they should do is not touch it, report it by telephone, and not take it into a police station?”
To which, Mr Garnett replied: “No, I don’t believe so.”
So while the law’s “strict liability” language makes things clear, the local police were not clear. But the law trumps a police pamphlet, and the jury convicted him anyway.
- Last, pulling a gun out in front of police officers is incredibly stupid. True, most officers in Britain aren’t armed, but if he had done that in the U.S., odds are every cop in sight would have drawn their weapons and had him up against the wall with a barrel pressed into his neck while they assessed whether there was a true threat — and I wouldn’t blame any officer for doing just that.
But Wait, There’s More
On top of all that, Clarke has been in trouble with the law before, and should have realized that he needs to take more care.
Bob in England alerted me to the previous case, from the same newspaper a year ago. In that case, Clarke was accused of assaulting a license inspector who was checking tax disks on cars. Clarke had allegedly confronted the inspector, and then beat him. He was cleared of the charge but, Bob wondered, “that perhaps throws a reason behind the police arresting him — revenge for getting off a charge the previous year.”
An interesting theory! Surely that was embarrassing to the police; might arresting him for gun “possession” be revenge? Might Clarke have been trying to look like a hero for turning in the weapon as “proof” he’s a good citizen?
Hard to say, but it’s stupid that he didn’t take more care. If he truly was innocent of the assault, he should know better than most how easy it is for innocent actions to look terribly bad, and should have taken the time to consider how he should deal with the police. And if he had truly been guilty and got off, it’s also stupid to thrust yourself into the attention of the police.
It’s ironic that as the U.S. wakes up to what a bad idea ZT is and is starting to take steps to eliminate it, other countries are not just embracing the concept, but their media are not even speaking out against the outrageous “justice” that results.
So for those who harrumphed that ZT is only an American idea, and they don’t need to be concerned? Think again. ZT may be coming to a police state near you.
Update: Clarke Goes Free
Paul Clarke was given a 12-month suspended sentence for his “strict liability” possession of a firearm on December 18, 2009. He had faced five years in jail.
Clarke took the stand in his own defense and, the local newspaper said, “sensationally claimed” that his delay in turning in the gun was due to his sexual relationship with a female Surrey Police detective.
“I didn’t call the police because I was sleeping with the detective. Another officer has got a bit jealous and I have had a lot of harassment from the police since then. I also didn’t want to call [emergency number] 999, [as] I didn’t want trigger happy police on my doorstep so I tried to call superintendent Harper instead.”
Tried and Failed
But Harper was “not available for four days” so he just kept waiting. “I just said I had something to give him, I didn’t want to say I’d found a gun because then he would have sent lots of police around. It could have been a duplicate or an antique and to be honest I was more concerned I would be done for wasting police time, it never even crossed my mind I would be arrested.”
Not surprisingly, Clarke said that “At the time I didn’t know anything about these strict liability laws, I didn’t realize I was committing any crime.”
Well, the prosecutor asked, didn’t he tell Superintendent Harper that he had found the gun, that he didn’t otherwise possess it? “I can’t remember my exact words but I did tell him, and the police officers all asked me to sign that piece of paper and I thought it would be easier to cooperate.” — yet the confession he signed didn’t happen to mention that he had found the gun.
So yes: I think Clarke is a major idiot.
“It was a highly unusual case and one in which there are exceptional circumstances that means it would be unjust to impose the minimum sentence,” said Judge Christopher Critchlow.
He added that holding the gun for four days before turning it in was “odd behavior,” and in fact a “very serious matter” that he didn’t turn it in immediately. “I therefore consider a term of imprisonment must be imposed to mark the gravity of keeping such a weapon and not immediately surrendering it to the police,” he said, but then suspended the one-year sentence he imposed.
“I understand you were once a soldier and you in particular ought to have appreciated the danger posed by such a weapon. You should have asked the police to come and collect it right away.”
The judge also addressed Clarke’s previous legal case, as discussed above: “I find this was a strange matter, it may have been something to do with your previous involvement with the police, but that does not justify not giving immediate notice that you had such a weapon, and wanted them to have it.”
A Surrey police spokesman issued this statement after the sentencing:
Clarke was given the opportunity to explain the full circumstances of how this lethal and prohibited weapon came to be in his possession.
This explanation lacked credibility and a report was submitted to the Crown Prosecution Service (CPS).
Surrey Police stands by its decision to investigate and make its case to the CPS which decided that it was in the public interest to prosecute the case in court, and Paul Clarke was charged with possession of a prohibited weapon.
This case clearly illustrates the serious view which is taken of the possession of any prohibited weapon such as a sawn-off shotgun or shortened shotgun.
Such weapons are frequently prepared specifically to be used in the commission of serious violent crime.
Surrey Police is pleased that, having heard all of the evidence today, Clarke has been sentenced appropriately.
Bottom line: Clarke was certainly at least partially at fault for his poor handling of the matter, but he has been spared jail time. Something tells me this won’t be the last run-in he’ll have with the police; there may be another This is True story in his future!
But the bigger issue is still this: what British citizen won’t think twice if they find a gun dumped in their yard? Prosecuting someone under “strict liability” for “possessing” a gun they’re trying to turn in is a bad, bad idea when your goal is for people to turn in guns. Like, how about “delaying the reporting of a crime”? That emphasizes not only that guns should be turned in, but they need to be turned in immediately, not after four days.
So yes, while Clarke is an idiot, the police handled this very, very badly. (Update source)
I was right that we hadn’t heard the last of Clarke: he announced he was applying to be Surrey’s first police and crime commissioner, a new 70,000 pound-per-year (US$111,500) elected position.
Yet he campaigned on a promise to not accept that salary. “I challenge anyone else standing to do it for free, as I will,” he said in his announcement. “It’s a matter of principle for me. I just want to do a good job.”
“I’m the ideal candidate,” he told reporters. “The police don’t like me, I’ve had a love-hate relationship with them for years. I’m no angel.”
“This isn’t a job for a politician,” he continued. “You don’t want a political commissioner. The police need to operate independently of any political party or links.”
His Opponent’s Platform
One of the other candidates for the position was Robert Shatwell, a former Surrey Police officer who served for 18 years with the constabulary. A member of the right-wing UK Independence Party, Shatwell said he’d promote a “zero-tolerance” approach to crime. Oh dear. That’s even the wording he used.
“UKIP stands for zero tolerance of criminal behaviour,” he declared. “At present there is no deterrent being used to reduce the number and severity of the crimes being committed.
“I believe, as does my party, that prison sentences should be used as a deterrent and should mean what they say. At present, sentences are far too lenient and if a custodial sentence is given the criminal knows they will only serve half of it before being released on licence.”
Makes you wonder if he was actually referring to Clark: he faced a “five-year minimum” sentence, was actually sentenced to one year, and then even that was suspended. That article (linked below) noted the names of all the official candidates …and Clarke wasn’t mentioned. It’s unclear whether he dropped out, or didn’t file the papers to actually run, which would make his announcement more of a publicity stunt, in my opinion.
In the end Kevin Hurley, an Independent candidate, and former police commander, won the job. He was also known to be “zero tolerance” in his views, but I didn’t find any details or statements about what he meant by that. The bottom line, though, is ZT thinking is well ingrained in the U.K.
(Source regarding Clarke’s announcement no longer online, Article about Shatwell running [from the Dorking and Leatherhead Advertiser — no, really! — and also no longer online.)
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95 Comments on “Paul Clarke and British Zero Tolerance”
The “no defense” comment is unfortunate, but I actually don’t think there’s a real story here. Incredulity about major papers not covering a story is often a red flag that the story isn’t really as disastrous as it seems to be.
So we’re deciding to take this guy’s word that there was a loaded shotgun with shells just sitting on his property. I think that is, at the VERY least, extremely unusual, and I would go as far as to say suspect. Say this guy committed some horrible crime and knew he would get caught, so he thinks, “hey, if I’m the guy just turning the gun in, they’ll think it couldn’t possibly be me!”
People get arrested all the time and given penalties that seem extreme out of context. In this situation, a guy walks around with a magically appearing shotgun, there’s a strong case to be argued that he needs to be watched while they solve the case of the magical shotgun. If he beats it on a technicality, they’ve still got him for five years. If there’s no offense committed, they let him go.
I don’t think you’ve read the story/post clearly. Clarke has been convicted. It’s not like they’ve simply arrested him while they sort out what’s happening, which could be defensible. Rather, he has already gone to trial and the jury pronounced him guilty. Sentencing comes next month, and the crime he has been convicted of has a 5-year minimum sentence. -rc
Do you not have Absolute Discharges in the US? Our courts have the power to say that no (further) punishment is appropriate. This either means that the defendant has already suffered enough (through seeing the consequences of his negligence, perhaps) that there is no need to do anything further to stop him reoffending, or that, though the defendant’s conduct was not technically justified, the judge wishes to condone it.
Unfortunately, I rather fear that this won’t be an option where there’s a statutory minimum sentence. If that is imposed, I will certainly be writing to my MP.
I’ve since read up a bit on your discharge provisions, after Richard in England pointed it out as a possibility. In the U.S., we have the concept of a “suspended sentence” (similar to your conditional discharge), where (say) someone is sentenced to a 5-year prison term, but it’s “suspended” for a period of time and, if the convicted does not get into trouble again during that period, he never has to report to prison. I’m not aware of an expanded version of this where it doesn’t matter if the convicted is in legal trouble again (your unconditional discharge), but I’d not be surprised to learn that some states have something similar; surely at times a suspended sentenced is administered in that way, officially or not.
My understanding of the particular law in question was that the 5-year sentence is mandatory — no discretion allowed by the judge. Apparently that’s not necessarily true, but the linked-to source articles make it clear that Clarke expects to go to prison. -rc
Do think the “strict liability” is interesting – if I get shot by someone with a sawn-off and am able to take the gun off the offender before he flees, would I get charged with firearm possession by the police when they show up (presumably after they provide me with medical treatment for my injuries)? Poor example against zero tolerance though, Randy, as Paul Clarke was perhaps more than just an innocent idiot. I’m sure people arrested in the street for drug possession have claimed “I found them and I was just taking them to a police station – honest”.
There are calls for ZT type laws in Australia occasionally. There are always going to be people ready to follow idiots.
I have not seen any suggestion in the media (though again, coverage is scant) that there is any doubt about how Clarke came into possession of the weapon. His lawyer pointed out (as noted in the linked articles) that his garden backs up to public green space, and his wall is lower than his neighbors’, so anyone could have tossed it over the wall from that public space. As stated, I do think Clark is stupid, but I still think it’s a good example of zero tolerance in the “real world”. -rc
As I understand it, in the US, a judge does have authority to overturn a conviction, but rightly or wrongly, it’s such a contentious position to take that judges use it only rarely with extreme care.
I agree that something is funky in the unspoken details of this story. And that there were more preferable ways to deal with the situation, especially in light of potential evidence of a crime by such a weapon’s very existence in that situation.
But to rely upon the concept of Absolute Discharge still does not mitigate the time and cost of defending oneself against a charge in which the details and circumstances are not even subject to discussion and consideration. And such final disposition is not even guaranteed. The Law is not a one-size-fits-all blanket, but a surgical instrument to dissect the minute details of a case and examine it with intense scrutiny. To relegate the law to ZT is to render it worthless.
The example was perfect. Shall I save the Queen at my own expense, not to my life, but to my freedom and chattel at the whim of the Queen’s own Law?
Regarding the Brits, and their ZT, I would like to tell you about a supervisor I had. He was Jamaican born, and proud of his heritage. He liked doing things the “proper” way. One day we were talking, and I was trying to get him to understand that some times you do not, or should not, do things just because that was the rule. I asked him if he had ever seen the movie Gallipoli. It was an early Mel Gibson movie that, as a royal subject, he had his duty to do. They were told to get out and fight. They came in waves, one after another, straight towards a German machine gun. Thousands were killed, but they did what was “right” and followed orders. The movie was from 1981 and set in Turkey during WW1.
I don’t know why the press glossed over this one (I don’t take newspapers and for personal reasons I won’t ever touch The Sun again), but it was picked up by the BBC on PM, their evening news and current affairs program on Radio 4, on the day of the hearing, and it was also on their news website (but I cannot locate it anymore – either it has gone or – more likely – I can’t get the right search terms).
Good to hear! -rc
“Absolute” (no mens rea) offenses have been around in the UK for a while. A higher education lecturer was convicted of cannabis possession several decades ago because she lent her holiday cottage to some students and they smoked a few joints there. She was not present and did not know of the event until the police came for her.
I never managed to follow up how it ended, but she was due for a “mandatory” prison sentence.
British Absolute Discharge sounds much like our Sentence to Time served when a judge decides that the time the accused has spent in jail is sufficient punishment for the crime involved. The problem with both of these solutions is that the accused has still been convicted and now has a permanent record of a felony conviction which could be used against him to support a determination that he is a habitual criminal if he gets into trouble in the future. It can also be used by a prosecutor to support a recommendation for a longer sentence if he has a future problem with the law.
I subscribe to a service that sends me a daily quote. Here, coincidentally, is the one I received today:
“The truth is that many people set rules to keep from making decisions.” –Mike Krzyzewski
I wonder what would happen if somebody threw a gun (in a bag) into the judge’s yard (and set up a video camera, with an Internet connection, to watch). If the judge picked it up, he’d be guilty, and the evidence would be on the net irretrievably.
Did Mr. Clarke touch the gun?
He was on his balcony when he saw a “black bin liner” at the bottom of his garden. At that point, it might merely have been trash. So he picked it up and brought it inside. That’s when he found the shotgun and two cartridges.
The story doesn’t say that he touched the gun at all. It does say that he took the gun out of the bag, so we can surmise that he touched it at that point…
Was Mr. Clarke an idiot? Let’s consider what he should be, in order to NOT be an idiot:
1. *ring* *ring* Hello, police? This is Mr. Clark. A moment ago, standing out on my balcony, I noticed something in my garden. It’s large and plastic, probably a bin liner. I don’t know what’s in it, but given that it’s a bin liner, it’s probably rubbish… But I haven’t touched it, just in case it’s evidence in some murder conspiracy… Hello? Hello? He hung up!
2. Hmm… Some rubbish in my garden… Better bring it in… Whoa! There’s a shotgun here! There was probably a crime committed somewhere. I could be a good citizen and report this; maybe the police would find a criminal that has hurt somebody. But given my prior relations with the police, I’m just going to wipe my fingerprints off, then chuck it into my neighbor’s garden… Let him be the one that gets in trouble.
Neither of these choices are very good, are they?
I’m sorry, but I have to disagree with you on the idiot charge, even more so after reading the original article. And, you know, one’s always smarter afterwards.
– He took the bag inside before looking inside and finding the gun.
– That and the fact he waited until the next day to bring it in, suggests it might have been night and dark already
– Low garden wall and green field next to it, he just might have been thinking of stupid youths stepping over his garden wall and finding something dangerous (though I know that this and the last two statements would not (necessarily) fit together
– The article, as opposed to your post-write-up above, makes it sound like he was careful in taking the gun out, so it was pointing at the wall.
– As an ex-soldier he should be trained in the use of weapons, thus I’d say it’s likely he knew how to handle that gun safely. That also makes it seem improbable that he would take out the gun in a threatening way, that might prompt police (even American police) to draw their weapons….
You know, yes, he might have handled the whole situation better, but then, I might have made the same mistakes. A bag on my land, I’ll likely pick it up, thus my fingerprints are on the bag and the whole thing isn’t where it’s been placed. If light permits, I’d most likely look inside just there, but if the bag (which it didn’t say in the article) was closed (knotted or taped…), then I’d likely have brought it in to cut open… Then, well if I hadn’t known about that (indeed incredibly stupid, idiotic etc) law, I might just have taken it to the closest police station myself as well, since police are notoriously slow in responding to any non-emergency calls, and at least Austrian Police wouldn’t take a found gun as an emergency….
And since we all make mistakes, I would not dare label that guy an idiot.
It’s not just that he made a mistake, but made one after another after another, even though he knows what a hassle it is to be in trouble with the law from his previous charges. But I do understand not all will agree with that. -rc
Cracking stuff yet again!
This article regarding Paul Clarke is intriguing, I too missed it despite being only a few miles away. Thanks for pointing it out. I was amazed enough to do my own research on this and soon found the article you sourced — you didn’t mention that Mr Clarke had also phoned the police station first, his contact was no less than chief Superintendent Adrian Harper. Another article within the very same paper can be found here and it concerns our comely chief cop himself. Note the charges: Willful misconduct — not just speeding!
As to your comments about Mr Clarke being an idiot, I don’t think he did things the ‘right’ way but it doesn’t make him an idiot. Naive maybe but not an idiot. Being that there are nowhere near as many guns in this country as your own one would have to be in possession of the black bag to find out what was in it, surely! Mr Clarke was a military man and would know and be comfortable with weapons. He called the cops and was allowed to walk into the station. Mr Clarke it seems may also be a member of a vigilante gang, my god there are so many arguments for and against the defendant I don’t know for sure what’s going on but my sympathies are currently with PC. I will watch the case with interest (court date has been moved from 11 December to 18 December btw!) There may be more to this than meets the eye.
Top marks for getting us thinking.
The “court date” Nigel refers to is the sentencing. Clarke has already been found guilty at trial. -rc
oddly enough i find myself in the same position as mr. clarke, finding a gun discarded on my property. however where i live the result will be quite different. i will call the police to come get it, suggesting that they check it for possibility being stolen property and that will be the end of it for me. they will run it through n.c.i.c. and do whatever they do with recovered guns since i claim no ownership of it and mere possession of a gun is no crime here, and no “license” or “permit” is required to possess and/or carry a firearm of any sort, openly or concealed.
You must be in New Hampshire, then — I think that’s the only New England state that allows concealed carry without a permit. And gosh: there isn’t “blood running in the streets” when mere civilians have that right? Huh! -rc
The State which has never required permits to carry a handgun is Vermont, rather than New Hampshire. Alaska recently passed such a law, also, but kept the permit available, for reciprocity with other States.
Thanks for the clarification, Pops. -rc
Something no one has said is what if inside the bag was a bomb or some unstable potentially explosive material. Paul Clarke should have called it in as a bomb that should have got a fast police response.
That would be dumb too: making a false report is also a crime. Good enough — especially in England! — to call and say you’ve found a gun in your yard, with ammunition. Police will come pretty quickly. -rc
HE FOUND A BAG, OPENED IT & THEN PULLED OUT THE WEAPON, WHICH WOULD THEN HAVE HIS FINGER PRINTS ON IT. SHOULD HE HAVE USED STRING TO PULL IT OUT?
Before I reply to your question, let me just give you a tip: when you type in ALL CAPS for more than a few words of emphasis, it appears that you are either “shouting” or stupid. Type the way people want to read and you’ll “get along” much better online. As for your question, no: when he looked in and saw a gun, he shouldn’t have pulled it out at all! To pull it out is stupid. To pull it out and get your fingerprints all over it is really stupid. Hope that clears things up for you. -rc
Just a couple of points about UK Law. Firstly, although it probably makes no difference whatsoever to this story, England, Scotland and Northern Ireland have different Laws; there is no UK Law. I mention this since there was a comment by a Scottish reader about Mens Rea in the UK.
Secondly, we do have the concept of a “suspended sentence” in English Law, as it seems you have in the USA. Thus a person could be sentenced to a term of five years in prison “suspended for three years”. Then, if he or she kept out of trouble, at the end of the suspension period the matter would be closed.
“My understanding of the particular law in question was that the 5-year sentence is mandatory”
Not quite. The law says that a 5-year sentence is mandatory for this offence *unless there are exceptional circumstances*. So if the judge decides that Clarke’s circumstances are exceptional, then he can grant an absolute discharge / probation / fine / shorter sentence as he chooses.
As discussed in previous comments. Of course, this is after conviction, so the felony (if you call it that too) rap still follows him around for life. -rc
Nigel in UK said: “you didn’t mention that Mr Clarke had also phoned the police station first”
Yes, but he didn’t *tell them he’d found a gun* when he phoned. He made an appointment with the chief superintendent to come in about an undisclosed matter, and then produced the gun for dramatic effect. Should that carry a 5-year sentence? No. Is that a really stupid way to go about things? Yes.
It wasn’t really germane to the story, and when I have to keep stories under 100 words, I do have to leave many details out. But yes, it is another point to Clarke being an “idiot.” -rc
Thank you for clearly explaining why you think that Mr. Clarke is an idiot. Not only do I agree with your explanation, but (and that’s what got me) I realized that I would perhaps have done something as stupid – I might have decided to take the gun to the police, thinking that’s the right thing to do. You, once again, made me stop and think. I appreciate that very much.
I do realize that such situations are “out of the norm” and it is unclear what to do, at least at first. So yes, slowing down and thinking for a moment can save a lot of grief. Clarke did slow down (he didn’t turn the gun in until at least the next day), but he clearly didn’t think. If Clarke becomes an example of why people need to think, and it helps my readers do so and stay out of trouble, then it was certainly worth posting this page! -rc
I suspect there is more to this than meets the eye. He was convicted by 12 jurors. Jurors in the UK have a long tradition of refusing to convict where it is felt there would be an “injustice”. For example, some peace campaigners protesting the Iraq War deliberately vandalised some fighter planes. They admitted doing it, but claimed justification, and were acquitted. There may be details in the transcript of what the jury heard that we are not getting right now.
On the issue of the “conditional discharge”, “unconditional discharge” and “suspended sentence”, these are very different things. A conditional discharge means that the judge or magistrate have determined that punishment is not appropriate in the circumstances, even though a technical breach of the law has taken place. However, if the offence (or another offence) is committed within 12 months, the previous conviction can be taken into account. A suspended sentence is different. In this case, the judge has imposed a penalty (say 6 months in jail) which is activated in the event of any further transgressions by the offender. An unconditional discharge is for a situation where a defendant is found guilty, but for which no punishment is due. An example might be someone who assisted a terminally ill patient to commit suicide, which is a technical breach of the law. However, the circumstances could show that it was an act of compassion and the judge can give an “unconditional discharge”.
The comment “And gosh: there isn’t “blood running in the streets” when mere civilians have that right? Huh! -rc” implies that there in no relationship between the prevalence of guns and gun crime. This is far from proven; there certainly are societies with high gun ownership and usage (Switzerland) which have low gun crime rates. However, the argument cannot be made that this applies in the US. The US has a very high gun crime rate, and it is significantly higher gun deaths than other comparable western societies. Without getting into a whole new debate, I do not believe that gun control will solve this problem. It is cultural issue. Guns are not a significant part of the culture in the UK and strict gun control laws are widely accepted. There is little public appetite for greater freedom to possess or carry firearms.
Be careful what words you put in my mouth. Studies have shown that when law-abiding people have weapons to defend themselves against the non-law-abiding criminals, crime — and violence — go down, not up as anti-gun people constantly predict (“blood will run in the streets!”) See, for example, this page from this publication in 1998. Or, for another example, see Britain’s crime rates after gun control: London has a much higher violent crime rate than, say, New York City. -rc
As to the terrible fear of the newspapers of the courts – firstly, frankly, you might as well reduce the account of newspapers which printed it to one, as I wouldn’t really count the Mirror, but on the other hand it was reported on the beeb, so it wasn’t exactly hidden away.
The London tabloid The Mirror is not, as far as I can tell, related in any way to the source of this story, the Surrey Mirror. Just as the London Times has nothing to do with the New York Times or the Los Angeles Times. -rc
Sorry, forgot to add one piece of info in my last post. The reason I think there is more to this than meets the eye, is that this is an extract from the official “Home Office” guidelines to police regarding handing in weapons.
Home Office “Guidance to the Police – Firearms Law”.P.129:
It’s nice to know that I don’t live in the (center-of-where-the-legs-split-at-the-back) of the world; even we wouldn’t go that far without amazing public outcry, though one has to admit that the outcry would be both against and in favor of the law that is at the heart of such a controversy.
Sure enough, the human race is beginning to drown in its own stupidity…
Absolute liability aside, it isn’t a good move to hand in the gun this way. He should have called them to pick it up. But this case will probably get people to take an “I see nothing” approach if they come across a firearm. Who would want to get involved after this? Absolute liability offenses have been found to be unconstitutional here in Canada. England doesn’t have a constitution with a charter of rights, but the European Union does, and I wonder if this man can appeal to that to overturn the law. I see this was a jury trial. It was still open to the jury to acquit him no matter what the judge said the law was, so the jury is as much to blame as the police and prosecutor.
Hummm — How would he KNOW it is a firearm unless he opened the bag? Or a bomb, in your alternate example?
Is one to call the police every time something strange shows up on your property? Perhaps in DC or Iraq, but in the UK? And what is the likelihood of getting a police response in those respective locations?
Read more carefully: I didn’t suggest that he not open the bag. I suggested that once he looked inside and discovered the alarming contents, he should have backed away and called 999 (the Brit equivalent of 911). Why is this so hard for so many people to grasp? -rc
Not reading your own words, Randy? How does one go from writing, “…he noticed a bag in his garden that didn’t belong to him. “I took it indoors and inside found a shorn-off shotgun and two cartridges,” he said…” to disparaging Clarke as an “idiot” because, “He found a gun in his garden — and picked it up?! Now he has his fingerprints on it, and he has thwarted investigation of who handled it before him. He removed it from its resting place, where police may have wanted to see how it was lying…” Point of fact: he found a BAG in his garden, not a GUN, and didn’t discover that it contained a gun until he was indoors.
And then he touched it. Again, read what I’m saying. Read the comments and my replies to them. As an ex-employee of NASA’s Jet Propulsion Laboratory, I’m very qualified to tell you this: this ain’t rocket science! This is very simple common sense. I know “common sense isn’t common,” but you people are being ridiculous. Pull your heads out and think about it. It’s not that hard! -rc
I was shocked that such a law exists.
Some people may know that two ONTARIO courts have dismissed TWO charges of STREET RACING because there is no defence, contrary to the Charter of Rights and Freedoms.
I had hoped that some people might have made that connection in their minds.
Randy suggests that he should have called the police to retrieve the shotgun. It seems that he really had no choice.
But inviting the police to your home opens the door for all sorts of inspections. I’m sure they could have declared his house and property a crime scene. Then locked him out for days or weeks. Seized and removed all his goods, inspected and perhaps broke some things in the process, etc.
This is a BAD law. The fact that it was written so that there is no defence should raise eyebrows.
As I suspected, the fellow, an ex soldier, had a previous run in with the law but the court dismissed the charge. So Police charged a good intentioned citizen with breaking a law that has NO POSSIBLE DEFENCE.
No one has mentioned that this could have been a set up by the police. They had him either way!
Arrested if he turns the gun in. Seized his property if he called them.
Randy suggests he should have called Police immediately. Initially, I thought so too. But the man wanted to think this through. As it turns out there was no way out of the dilemma.
So you’re even more alarmist than I am. 🙂 And that’s OK! You could very well be right about the set-up by police. But we do agree: the “absolute liability” is a crock and, as was pointed out by another Canadian, has already been declared unconstitutional there. -rc
Regarding your calling him an idiot, I can see that those would have been the logical things to do. But someone who allegedly assaulted a government inspector is not likely to possess the highest caliber intellect. My theory: he just wasn’t thinking.
In retrospect, he would agree that he shouldn’t have moved it, he shouldn’t have touched it, etc. But if I find a bag in my yard, it’s not too much of a stretch that if I wasn’t thinking at that moment, I’d bring it inside, discover the contents, and although I’d likely call the police immediately, if I only “got around to it” the next day, then OK. Like you said, it’s not rocket science, but it is not too difficult to say that “he just wasn’t thinking at that moment.”
There’s not a lot of distance between “not likely to possess the highest caliber intellect” and “idiot”; no need to quibble over semantics. What took this from “not thinking” (especially since it’s an out-of-the-norm situation) to “idiot” is not his non-ideal first reaction, but his non-ideal second reaction, his non-ideal third reaction, his non-ideal fourth reaction, etc. Mistake after error after bone-headed action, all spread over a lengthy period of time that he could have used to realize he was acting stupidly. It takes a real “idiot” to squander so many opportunities to slap your forehead. -rc
11/25: “But I do understand not all will agree with that.”
11/28: “Pull your heads out and think about it. It’s not that hard!”
I guess your understanding didn’t last very long. If people continue to disagree with you, you might as well start insulting them, right?
One could conclude that people who “won’t agree” are therefore “not stupid,” but it’s unlikely you’ll hear that from me. To find a gun in an anti-gun culture and put your hands all over it before giving it to the police several days later is stupid, period. If you wish to argue otherwise, then do that, rather than start a silly meta-argument — whining that you’re insulted when I’m talking to someone else isn’t going to get you very far. -rc
I’m from the UK and this is the first I have heard about this story. And yes I am shocked that there hasn’t been more coverage of this story and the ramifications for everyone.
But I am shocked at your statement about bringing yourself to the attention of the police. In a free country you should not have to fear bringing yourself to the attention of the police.
Unfortunately, it seems less and less like you can do so. It has gone from a state where you can trust the police to do their duty and be fair in their dealings. To them now being the political police of the government and if your voice or view is in distention, expect them to be suspicious and investigate you just in case.
When I grew up, if a police officer spoke to me, I had no qualms of being honest and up front with them. But now, if an officer speaks to me my first thought is what is he after. It may be a cynical point of view. But after two of my friends have had run ins with the police and they ended up on the wrong end of the law and treated as the criminal instead of the victim, how else are we to act?
The majority of police do a good job but unfortunately their masters can’t be trusted.
I’m unclear why you’re shocked. I think it was a commenter who posted that, rather than me, but you go on to say that people should be wary of “bringing themselves to the attention of police” (and give some good examples of why not). It appears we’re in reasonable agreement. -rc
It is true that strict liability offences do not require proof of intention, they are pure if/then scenarios, and the do have a place in law. However, when there is a liberty interest involved then a higher order of law comes into play, whether constitutional or charter, depending on the country.
Generally speaking in free and democratic societies, England, US and Canada included, an individual is entitled to life, liberty and security of the person, and is not to be deprived of any of those except in accordance with the principles of fundamental justice.
Intention is a critical element of any criminal offence, whether specific or general, and before a person is at risk of losing their liberty or facing incarceration, intention should virtually always need to be proven.
I suspect that Mr. Clarke’s lawyer may not have done a very good job. He is almost certainly guilty of the offence on a strict liability basis, however there is little doubt that an argument that he has a constitutional right to liberty and that he cannot and should not be deprived of his liberty without some wrong intent would succeed.
I think his lawyer likely did only half a job.
Perhaps, but as one of your countrymen pointed out this morning, England does not have a constitution. -rc
This goes along with the advice from the law school prof to never say anything to police under any circumstances. If you Google “don’t talk to police” you’ll find the video on You Tube. It’s sad, because when I was a kid we had a different relationship with the cops and didn’t have to worry about this stuff. Particularly with the large number of people that the Innocence Project is freeing, you just wonder how many people over the years got busted for nothing. More than zero is too many. Especially in death penalty cases.
Actually, if you search this site you’ll find a “Don’t Talk to the Cops” page that is a must-read (or really, must-watch, since it’s videos). -rc
In the United States such a law ought to be considered unconstitutional, but we have plenty of them and few judges are principled enough, or awake enough, to strike them down as facially unconstitutional.
The abuse is even greater in circumstances where there are strict liability regulatory offenses. For instance, young children severely punished by being expelled from school or suspended, for things of which they had no knowledge. E.g., grandma puts a knife in child’s lunchbox so he can cut his fruit.
Ayn Rand and other libertarians understood that the government will try to criminalize almost everything. Being able to find someone guilty of SOMETHING gives the government control over everyone.
Any American who sits on a jury hearing a case like this ought to simply help the jury acquit, or at least hang the jury, to send a message. And yes, a juror has every right to nullify an outrageous or unconstitutional law, or one being applied in a stupid manner.
While I tend to agree with you on most things, you’re acting like quite the curmudgeon towards this case, and calling this guy an idiot is a bit much.
The assumption that Clarke looked into the bag before pulling the gun out isn’t necessarily factual – what if he just stuck his hand in, grabbed onto a steel pipe, and pulled it out and found his “pipe” was connected to the firing mechanisms of a gun? Or what if he did look in, and saw a steel pipe? He draws it out only to realize that it’s the barrel of a gun. Just as plausible as your assertion.
Look, you and I don’t know what happened exactly – nobody does here – but really, is every citizen required to know all the nuances of their respective laws? No. Is it a good idea? Sure! Doesn’t mean it happens though, and most of the laws are common sense enough that we can get by well-enough without intimate knowledge thereof.
Give the guy a break; your heavy handedness towards Clarke is just insult to injury. The guy did the right thing by turning the gun in to the proper authorities.
If pulling the gun out was Clarke’s only mistake, you’d have a good point. But it wasn’t. As I’ve suggested several times now, read the details of what happened. Think about whether each step was not just the “best possible” step, but was it even reasonable under the very clear circumstances? Walk through just a few of the steps here: Once he found it was a gun, did he call the police and tell them what he found? Nope. He called and made an “appointment” without saying what it was about. Did he say it was an urgent matter and wanted to come in immediately? Nope. He made the appointment for days later. When he arrived did he say he had contraband in the bag that he wished to turn in? Nope. He again handled it, pulling it out of the bag, surely causing alarm. As I’ve said many times now, Ryan, it’s not that he did one thing wrong, but rather that he did many things wrong, even though he had plenty of time to think about what he was doing. That is what I call stupid — and it is stupid. -rc
I live in the next county. One day, some years ago, I returned from my summer holiday to find that a three foot sword had been abandoned in my back garden. Had I called the Police, I would have had to wait several days, possibly a week or more, for a response. Such is the poor service we receive in this country (No! Our Policemen are NOT wonderful.)
Having young children at the time, I took the weapon to the local police station and handed it in. Would you believe they put it in the lost property office!
Even though we have a Human Rights Act, it is only for the benefit of criminals. It certainly does nothing to protect the innocent! We have the most draconian laws in the “free world” where victims of crime end up being prosecuted, or even murdered, for defending themselves.
The United States may have had some daft court cases but don’t worry, we soon leave you behind!
To take issue with the following statement: “If people continue to disagree with you, you might as well start insulting them, right?”
One of the irritating issues in debating/arguing a subject is the tendency of people to interject or delete pertinent details. In a courtroom, it’s called “Assuming facts not in evidence.” People often use such tactics, either through lack of attention, or deliberate deception to maintain their position.
I tell such people to “Stay on target,” or focus. Randy told them to “Pull your heads out and think…!” Either way, argue the facts, not the arguer (arguee?) The fact that Clarke was an idiot does not excuse such a dead-ended law, but it also doesn’t change that Clarke was still an idiot.
Forget the police and any crime, I’m not picking up an unknown bag and taking inside my house before checking it out. Who knows what kind of bugs, vermin, germs, rotting animal carcass, or who knows what may be in there. If I were curious, I’d have opened it in the yard first.
That’s what I mean by thinking. You get it. Others don’t, but the ones that really bother me are the ones who refuse to understand. -rc
John writes, “…I live in the next county. One day, some years ago, I returned from my summer holiday to find that a three foot sword had been abandoned in my back garden. Had I called the Police, I would have had to wait several days, possibly a week or more, for a response…”
May I say that he is here making an assumption about what might have happened; I can speak from personal experience. I don’t know which of Surrey’s adjacent counties he lives in but I live in West Sussex – just about 30 miles from Merstham. In the past three years I have twice had to call the police, once on a matter of vandalism to my garage and the other time when my trailer was stolen. Neither matter was all that urgent but on both occasions the police were there within hours to take full statements and evidence. They kept me advised of the progress of their investigations and followed the matter up by asking victim support to get in touch to see whether I needed their help.
On these and on other occasions over the past half a century when I have needed police assistance, I have never received anything but prompt, courteous and helpful treatment. I am not suggesting that there are no bad apples in the barrel, but I have never been unfortunate enough to come across one.
Then, Richard UK, you must live in the only place in Britain where the Police do respond. I have had policemen suspended for failure to prosecute when I was attacked even though he had a cast iron case against my assailant. I personally know of cases where security officers have arrested intruders on their premises and had to let them go because the Police failed to respond to an emergency 999 call.
For your information, I do not have a criminal record, have never been arrested, am a retired Civil servant and have friends both in the Police force and retired who agree with me. From my own experience, I have absolutely no confidence in British Police. Thank goodness for sat-navs, I have never been able to get directions from a Policeman.
Randy, you quote Tim Jaques as saying “England doesn’t have a constitution”. This isn’t true. He actually said “England doesn’t have a constitution with a charter of rights”. This statement isn’t actually technically true either – the long provenance of habeas corpus and so on should make that clear, and we have the Human Rights Act, for what it’s worth: the situation is actually that in England, the right to overrule/amend the constitution isn’t denied to the legislature (and that our constitution isn’t codified into a single document).
I also don’t see why charges without defence are necessarily unacceptable, as Canada apparently ruled, as “ignorance of the law is no excuse” and it’s possible to conceive of something indefensible. I see that this law undoubtedly is inappropriate, but I don’t see the absence of a defence as a fault in and of itself.
Ladies and Gentlemen….If you find a strange container on your property WHY on God’s little green earth would you take it in your home to open it?!?
Why would you blindly (as some have suggested) reach inside to grab the contents? I, for one, would open it OUTSIDE my home. Garbage? In the garbage can! Biological waste? In the garbage can! A gun? “Hello? Police? I found a firearm in a bag in my yard, can you please send someone over to pick it up? Did I touch it? No, I only opened the bag to see what was inside. Yes, thank you, I’ll expect an officer soon.”
For those who would take it inside first….enjoy any strange substances and/or smells in your house!
I thought such a concept would be obvious — not even as high as “common sense.” I’m amazed Brian felt the need to explain it, but judging by many of the previous comments, he did need to. Sheesh. -rc
Forget Zero Tolerance. Clark was an idiot for ever saying anything to the police.
The video Don’t talk to the Cops is right.
I started writing this before the comments which were made today.
No one should ever say anything to the police.
There are a few simple rules:
1. Anything you say to the police can be used by them against you in a court of law.
2. Nothing you say to the police will be used by them in your favor!
3. About the best you can ever expect is the opportunity to testify in court, “I told the police I didn’t kill the guy.”
Try these tests:
A. See if you can find a lawyer, even a prosecutor, who recommends you provide the police with any more information than your name and address. The video you have posted suggests that it is unlikely you will find one.
B. See if you can find a lawyer who recommends you voluntarily provide a blood sample or give a breath test or perform a streetside sobriety test. Few, if any, lawyers defending DUI cases suggest that you do so.
C. In many states there are statutes that provides that you must provide traffic accident information, but anything you report as part of the traffic investigation cannot be used in court by the state or by either side in a civil action. Nonetheless, in most jurisdictions what you say can be used against you if the investigation develops beyond that of a traffic infraction into the investigation of a crime. See if you can find a lawyer who recommends that you provide any more than the minimum information such as your drivers license, car insurance and registration to the police at an automobile accident scene.
D. If you find a gun in your yard, will you call the police or call a lawyer?
Me, I’d still call the police, but you can bet I won’t be grabbing it and hauling it inside the house. “All I know is I found it right here while out for my walk. I didn’t touch it, and called you immediately.” -rc
I do not think anybody finding a bin liner would pick it up and take it inside his home without looking inside first. If this was the scenario, he is an idiot, period!
I sat on a jury for an armed robbery. Police caught up with a car matching the description of one used in the crime. The police found the gun, and the stolen Rolex. At the end of the trial, I was told I was an alternate. The judge ordered the rest into the jury room. Since I knew about this trial, I waited for the verdict. Meanwhile, greeting me outside the court room, was the prosecutor who wanted to know what I thought the verdict would be. I said they were going to find him guilty. A few minutes, the jury came back with a not guilty verdict. I asked why, and was told that they did not trust the police. There was no search for a finger print on the gun. The police may have planted the Rolex.
It is crazy to not believe the police. I love them writing tickets to people running red lights. (I even waited till one was through, and when he came over, I told him I was grateful for him doing his job).
Don’t forget the Fourth Amendment rights.
I’m ex-police and used to be in charge of a prosecutions department.
If the circumstances are as reported then I would suggest that this is a failure of procedures of both the police and the Crown Prosecutions Service. Public interest is the overriding principle of any decision to proceed and it is, I believe, specified in the CPS code of practice and requires an element of protection of the public – public safety – as well for firearms offences.
Whilst the police did not have the authority to take this person to court they did have the option to ignore, caution or just tell-off the chap. Zero tolerance is not ‘allowed’ in this country as each individual officer is responsible for his own actions and derives his authority from the Queen.
My suspicion is that there is more to this than met the reporter’s notebook. The Sun is not noted for its accuracy in reporting and doesn’t let a fact or two get in the way of a sensational story.
As regards the higher lecturer and the cannabis: I would suggest that an offence of possession (at least under English/Welsh laws) had not been committed on the facts described. However, there does seem to be prima facia evidence of an offence of allowing one’s premises to be used for the consumption or dealing in classified drugs, a serious offence.
There are few offences in GB that carry a mandatory sentence, the most notable being murder, where a life sentence is what they all get. But even here life does not mean life as such. Due to Human Rights legislation and case law, the judge must give a time sentence as well. I’ve been involved in a case where the offender was found guilty of murder, sentenced to life and released immediately. The ‘life’ bit means that they are on licence, i.e. can be returned (or in the last case go for the first time) to prison at any time for the rest of their life.
The offences under the Firearms Act which this person has been found guilty apply to prohibited weapons only. These are not normal firearms but ones which have been modified or are so dangerous that they have special restrictions.
It is fairly recent legislation and I would suggest that an appeal would be on the cards. All other minimum sentences, to my knowledge at least, are totting up offences. Three findings of guilt for possession of Class A drug springs to mind. So this is a new one for England/Wales.
The drafting of legislation in this country is dreadful. Recently a Home Secretary, the bloke in charge of policing and the courts, personally oversaw a bit of legislation that a judge told me would be overturned at the first challenge and so it was.
In this case the judge has retired to take advice on the matter of sentence. I would assume therefore that five years is not likely.
By the way, this chap did have mens rea. He was aware it was a firearm. Ignorance of the specific offence he committed is not defence. He must have known he had no ‘right’ to possess the gun.
But as I said earlier, my suspicion is that there is more to this than we are aware of. If is was a concerned member of the public dealt with harshly by an unfeeling officialdom, then they are enough hysterical daily papers searching for just such headlines that for them to ignore this one is remarkable.
We shall see I expect.
Thanks for the insider information. I agree that the Sun is not a trustworthy newspaper, but don’t know why you brought that up, since the source that I identified and linked to is the Surrey Mirror. -rc
Having been a police officer in both the UK and USA I have a couple of comments. Firstly I have known colleagues in the UK given absolute discharges for offences committed while a/ following orders and b/ preventing a greater injury or offence being committed. Officers are routinely put in positions where they have to choose between the lesser of two evils, and usually have to justify their choice in a court of law. Personally I think it is right such actions go before a jury of peers so that their actions can be assessed dispassionately, apparently in this case the jury agreed with you.
Secondly I would suspect that Mr. Clarke was trying to circumvent the lower portions of the chain-of-command, perhaps i would suggest after being on the short end of the stick the prior year.
Lastly I recall an incident three years ago here in Augusta, Maine. A local resident purchased a large trunk of assorted goods at a yard sale. Upon examining it he found what appeared to be sicks of TNT ‘weeping’ nitro. With it were all sorts of explosive paraphernalia. So what would you do? Drive it to the local police station / dispatch? Check. Cause the evacuation of said dispatch / police station? Check. Park it next to officers’ personal vehicles to really make some friends? Check. For the info of those not familiar with TNT, when it gets old the nitroglycerin weeps out of it, and will explode with rough handling, such as being driven around in the back of a pick-up truck.
Yes indeed, there are idiots on both sides of the pond. It’s part of my job security — and yours! -rc
Quote “…Then, Richard UK, you must live in the only place in Britain where the Police do respond….”
Before I lived in West Sussex I lived in Brockham and then Reigate, both in Surrey – and I had several dealings with the police, both as one who needed their help and as one who, unfortunately, had ended up on the wrong side of the Law (nothing serious, I would add – only a matter of an expired Road Fund Licence). On every occasion the police dealt with me fairly, courteously and efficiently.
I also had occasion to ask for police help when I was robbed in Manchester. And again I could not have asked for more sympathetic help and assistance. I can accept that others might not have had the same positive experiences but I can only speak of my own experiences as I find.
Possibly you, John, live in the only place where the police do not respond.
So, is the ZT-circle and slash – no tolerance for zero tolerance logo available on a t-shirt, patch or cap?
Not yet, but it will be “soon”. -rc
When I said that England had no constitution with a charter of rights, I was referring to a constitution with teeth.
The glory of England’s unwritten constitution used to be that Parliament wouldn’t pass laws that violated the traditional rights of its citizenry. The American constitution, in many respects, was based on what the founding fathers of the US thought should be the codification of the rights of the “free-born Englishman” — right to trial by jury, right to freedom of speech and freedom of the press, right to habeas corpus, and yes, even right to bear arms. (Blackstone, the 18th century English jurist, saw the right to bear arms as a right equal to the right to a jury trial). But the modern era has proved that governments often no longer respect these constitutional traditions. It was precisely for this reason that Canada adopted an American-style constitution in 1982. (Ironically, brought in by Pierre Trudeau, who had imposed the War Measures Act in peacetime without a second thought, suspending habeas corpus in 1970.) It has worked very well against these kinds of zero-tolerance laws so beloved of politicians who like to pretend they are taking firm action on a problem.
That is why I say England has no real constitutional charter of rights as it doesn’t have the kind of higher written constitution that the United States, Canada, and even the EU have. That kind of charter allows the courts to strike down laws that offend against the fundamental charter of rights. A constitution that doesn’t allow for that isn’t much more than an interesting history piece. Sure, even those written constitutions can be amended, but it is very difficult to do so, and they were specifically designed to be difficult to amend. (And Canada’s courts have struck down absolute liability offences — what you are thinking of are strict liability offences, to which there are defences.)
Mistake of fact can also be a defence, but it doesn’t seem a defence open to Mr. Clarke here. He knew the item in the bag was a gun and that’s why he was at the police station. But strictly as a policy measure, it seems wrong to prosecute this man. That would discourage other people from turning in guns. Could he, under this law, have been prosecuted for possessing the gun if he brought it into the house while calling the police, so that children mightn’t find the bag in the meantime? Could he be charged with possessing it merely by having it on his property, once he knew that there was a gun in the bag? What exactly do the authorities say he should have done once he opened the bag and found the gun? It seems to me that in a strict sense — and this law seems to deal with strict senses — he is in possession of it right then and there.
Lets face it, This guy was caught between a rock and hard place as soon as he identified the item as a gun.
Couldn’t having the gun on his property be construed as being “in possession?” If I have stolen money in my house (or hidden in my bushes) then I’m still “in possession” of it, even if it’s not in my hand.
“Could” it be? Sure, but it would take a corrupt system to prosecute it, since all people would have to do to protest it is hurl contraband onto police superintendents’ property. -rc
In this country, you can, and people have, been prosecuted when drugs are found on their premises whether they knew about it or not. I remember some years ago when an old age pensioner (as they were then) emptied her bird seed out the window when cleaning her budgie cage. At the time,the feed contained marijuana seeds which germinated. A passing policeman noticed the plant and promptly arrested her for being in possession. The seed has since been removed from bird feed.
Don’t ever believe that British law is the best in the world! It most certainly isn’t!
I agree with Randy’s conclusion that the guy’s an idiot for handling it the way he did. Substituting drugs for guns and I do wonder how our system would work. If I found a bag of pot/crack/cocaine/ritalin(!) and were foolish enough to pick it up and walk into a police station with it, how would they handle it?
Better — I hope. -rc
After reading your article, I contacted my brother who is a police officer in the Surrey police. He informed me not to believe what I read in the newspaper. There is apparently a lot more to this Clarke than meets the eye. The media have both left things out of the story and also are not yet in a position to know everything about it.
More information should be released shortly which will reveal the true extent of his involvement with the shotgun.
One hopes. Meanwhile, they’ve left the public with the impression that one shouldn’t turn in found guns. Even if there is more to the story, that is a stupid thing to do. -rc
Andy, Surrey, England: if the police have more information than the media reported, then shouldn’t they release it now? After all, the man has already been to trial and convicted. What are they waiting for? It is typical of the police to make these kinds of insinuations when pressed, but refuse to provide details to back up their insinuations.
The comment about the OAP being arrested because some of the birdseed she had emptied had germinated is, I suspect, a complete load of cobblers. It is very common for these kinds of urban myths to spread and “This is True” generally does a very good job of debunking them.
If John can produce evidence that this is really true, then I might give some credence to his implication that British(sic) Law is poor.
David in Portland asked, “Couldn’t having the gun on his property be construed as being ‘in possession?'”
I can’t say for England, but in the U.S., the legal principle of Possession is as follows:
POSSESSION – A person has possession of something if the person knows of its presence and has physical control of it, or has the power and intention to control it. [More than one person can be in possession of something if each knows of its presence and has the power and intention to control it.]
Therefore, contraband found on your premises, either discovered by a search warrant or by exigent circumstances, even if not on one’s person, is legally considered “possession” for purposes of prosecution.
It takes little, though, to prove “Knowledge” of its presence. Everyone has heard that Possession Is 9/10’s of the law regarding ownership? Don’t you believe it. Possession is 9/10’s of the law in proving culpability.
Clarke was already guilty of Possession as soon as he identified the contraband. The distinction is Intent, and it seems that the law precludes any Intent for consideration.
“Intent” really is the issue with Zero Tolerance. Proponents simply don’t want those they accused to get off due to a “technicality” like intent, or guilt in the sense that it requires responsibility or culpability or knowledge of wrongdoing.
In fact, the only justification for Zero Tolerance is distrust of Judges, Prosecutors, Policemen, Jurors, etc.
Thank God, you have ZT in force. You guys in New York or London think its a bad thing but it’s not that bad. People always have some or other ‘explanation’ when law goes against them like in this case Clark did violate the law (he was definitely in possession of weapon, however innocent he was.
Now, why I am in favour of it? Come to my country – India. I just give you one SMALL example. Environmental Protection Act (EPA) Code 15 states that nobody can use loudspeaker between 10 PM and 6 AM. I request you to VISIT anywhere in North India for one month and report how this law is obeyed! You will know how lack of law enforcement has made a mockery of law itself. AND, I am not saying about some odd party violating this law, I am saying that this law is brazenly and blatantly violated by almost all. Sometimes its late night wedding parties, other times its ALL NIGHT JAGRANS (search youtube and google and you will know what a JAGRAN is).
This is only ONE example, I see so many laws getting violated rampantly ranging from traffic rules (stricter ones like drunken and rash driving) to firing from firearms during wedding programs.
You are lucky guys. Indeed.
The solution to extremism isn’t a different kind of extremism. When you get a taste of ZT yourself (read some of the examples on this site! There are dozens.), you’ll be screaming even louder. -rc
“1. He found a gun in his garden — and picked it up?!”
Firstly, is it ever said that, prior to producing it at the police station, he ever actually touched the GUN, as opposed to the bag it was in?
Secondly, while handling the weapon would cause it to have his own prints and DNA, it doesn’t magically remove all the previous evidence. Investigators can just take Paul Clarke’s prints, and look on the gun for ones that don’t match his.
“2. He waited until the next day to turn it in? That just makes sure that evidence is destroyed — and casts more suspicion on himself.”
Quite probably he waited because he was thinking what to do. He came to the wrong decision, but don’t assume that he decided to carry it to the police station himself the moment he found it, then thought he’d keep it for the night. More likely he kept it for the night because he wasn’t sure what to do.
And again, forensic evidence DOESN’T MAGICALLY DISAPPEAR IN ONE NIGHT.
No one suggested that it did, so why are you arguing the point? There are certain ways to safely handle firearms, so handling one can easily obliterate important fingerprint evidence. A fingerprint on top of another will most likely destroy the first one, thus (as I said) “He could have destroyed crucial evidence”. You also ignored the second part of my point: “He removed it from its resting place, where police may have wanted to see how it was lying, what other evidence may be around it, etc.” It’s unclear whether he handled the gun in the garden, and/or in his house, or only in the police station, but as stated he did handle it directly as he produced it for the police. -rc
Have followed this story from beginning, your reporting is first class, have been waiting for sequel and am pleased you completed story.
I don’t understand why there should be a large amount of jail time involved with gun possession. If the authorities want to cut down gun use, ban the sale and/or possession of ammunition instead.
Minor correction to police officer Andrew of Augusta, Maine:
TNT does not contain nitroglycerin or dynamite, and dynamite contains no TNT.
Dynamite does, however, contain nitroglycerin, soaked in an absorbent substance, often diatomaceous earth, the whole wrapped in a paper cylinder. Old dynamite can weep nitroglycerin, and is considered dangerous.
Dynamite and TNT are completely different substances — all they have in common is that they’re explosives.
Randy, firstly “absolute discharge” is used to to dispose of a case where although strictly an offence has been proved, the judge decides that no penalty should be imposed.
Secondly, as a retired UK police officer, I think I have, with my colleagues, heard every absurd excuse for criminal behaviour, usually sworn to be true on the life or eyes of their children or other family member.
Anybody who truly believes that this man innocently “found” this gun in his garden needs wrapping in cotton wool and keeping in a cupboard, this is the real world. Criminals and their lawyers only make these stories up to try and excuse inexcusable behaviour and cast doubt in judges’ and juries’ minds.
That these stories sometimes work only goes to show the general gullibility (and greed) of the public, as shown by their willingness to get conned by the likes of 419 Nigerian email spammers, and the Ponzi schemes of the Madoffs of this world. But keep reporting them, they make me laugh!
There was no allegation or evidence that the gun was not received in the manner described. Yes, criminals lie. And yes, police officers assume people lie and are therefore criminals, and that’s how innocent people end up in jail. If you have evidence that he’s lying in this case, present it. Otherwise, you are presuming guilt until proven otherwise, and that’s not the sort of attitude any police officer should have. -rc
Ray, in the UK both ammunition and firearms possession is strictly controlled. As you suggest, guns are of little use without ammunition and the converse also applies.
The UK has, to my mind very sensibly, imposed strict controls on the sale and possession of both items. We have never had a “right to bear arms” and the absence of this right seems to cause few problems and prevents many (and I speak as one who was once a shooter – and indeed who shot at Bisley).
It looks like what he said in his defence may have some truth in it.
If what he said on the BBC Radio 4 Today on Friday, 18 Dec is true, it looks like someone is definitely out to get him.
You can hear it for another six days. Follow this link [now deleted].
I don’t disagree that Mr. Clark handled the situation poorly. But I can sympathize with him because 1. The gun was in a bag. I haven’t seen a description of the bag, so I don’t know if he handled (the gun) to see that it was sawed off and I think certain shotguns are still legal. 2. The law though (probably) well known, is confusing, so a lay person would have difficulty being sure what to do.
This whole case raises a question in my mind. The prosecutor said the jury has no choice. I can’t find any proof of it, mainly because I can’t remember where I saw it. But I seem to remember reading once that a jury (in the United States) can state that they don’t feel a law is fair and refuse to convict under it (I am not sure what this would achieve and I would like to know if this is true) If that is true and or laws are based on English common law, could the jury have used that course?
The bag was described as a bin bag. In U.S. English, that means trash bag. If someone dumped a gun in a trash bag in my yard, I would have no difficulty in deciding what to do, even in the absence of laws prohibiting guns: I would immediately assume the gun had been involved in a crime and had been dumped by a criminal, and I would call the police. I would not take a dumped trash bag into the house to open it, since I’d assume it would be full of literal or figurative shit that I wouldn’t want in my house. As soon as I realized what it was, I would back away and leave it in situ so investigators could gather evidence from the likely crime scene. Why anyone wouldn’t realize this was the thing to do is beyond me. -rc
“Last, pulling a gun out in front of police officers is incredibly stupid. True, most officers in Britain aren’t armed, but if he had done that in the U.S., odds are every cop in sight would have drawn their weapons and had him up against the wall with a barrel pressed into his neck while they assessed whether there was a true threat — and I wouldn’t blame any officer for doing just that.”
I have been to the police station, with a gun in paper bag, on more than one occasion and I have never been accosted, arrested or otherwise molested, let alone up against the wall with a barrel pressed into my neck.
I can’t imagine that you believe that is an acceptable and justifiable outcome.
I didn’t suggest this is likely when you had a gun in a bag. I said this is likely when you pull a gun in a police station, apparently without warning. That is a very, VERY different thing. -rc
So, I guess what Clarke should have done was leave the bag and shotgun laying in his garden and let someone else report it to the police. Kind of like dealing with crime in ghetos and housing projects. When the police show up and ask questions, “no one saw anything”. Granted,they fear the other criminals in their midst.
The similarity is this — with these zero tolerance policies, we make the police (or school principals) our enemy. Good intentions, and even moral correctness, are made irrelevant.
Joe Brandon asks, “Can a jury refuse to convict because they think a law is unjust?” I am an attorney, who has also given lectures in foreign countries on American law, and served as a judge pro tem. The answer is, “Yes, there is a doctrine known as ‘jury nullification,’ which holds that a jury has the absolute right to refuse to convict, even in the face of the facts and the statute, FOR ANY REASON, such as if it considers the law unjust or being applied unjustly.
That was the Common Law of England, at the time the U.S. “received” the Common Law. (The “Doctrine of the Reception.”) Jury nullification (which I prefer to call “jury empowerment”) was specifically mentioned in the very first recorded U.S. case, as a doctrine that was so well established it hardly needed mention.
Jury nullification has been nobly applied in many cases, such as northern juries refusing to honor the Fugitive Slave Act and return blacks to their “owners,” and a jury refusing to convict John Peter Zenger for sedition when he published criticism of high political figures. Jury nullification has also been ignobly applied; for example many blacks in Washington, D.C. simply refuse to convict a black for a crime against a white, no matter how damning the evidence. Some people feel the OJ Simpson verdict reflected, at least partly, jury nullification; certainly the defense made a veiled argument for it. (Most experts, however, feel the prosecution was appallingly inept, the defense skillful and sly, the judge outrageously pro-defense and dumb, and the jurors stupid.) My taxi driver, as I returned from the criminal courthouse, said, “We all know he did them two people, including us blacks. But the jury figured it was time a black man got a break.”
Judges will always instruct a criminal jury that they must apply the law as he describes it and convict if the defendant has committed the crime, even if they disagree with the law or with the way the law is being applied. That is absolutely wrong, utterly in violation of the Constitution, and a governmental usurpation of the jury’s right. As a juror you have the absolute right and obligation to reach your own verdict. If the judge asks whether you can accept his instruction, you can say “Yes, your Honor,” while remembering for yourself that any jury instruction that contradicts the constitution is a nullity.
Unfortunately you can not come right out with words like “jury nullification” either to the judge or to your fellow jurors or the judge will throw you off the case. You must be more discreet in educating your fellow jurors. But what I have described is the law under our constitution, even if few people know it and the judges keep you in the dark about it.
If you are interested in the subject, Google “jury nullification” and find many resources, including citations to cases. Hope this helps.
1. I agree in principle with your ZT stand.
2. Although I’m ‘liberal’ socially, I’m a strong supporter of the right of US Citizens to bear arms.
3. These comments have the benefit most others didn’t of seeing the follow up article detailing the sentencing etc.
This Clarke and this case are not great ‘poster children’ for this no ZT argument. Clarke decides to ‘possess’ the weapon for FOUR days! His fears of the police department, no matter how well founded, are things he needed to deal with quicker.
Why didn’t he contact his ‘girlfriend’ (for want of a better term) on the force? Also, if he is so in fear of the police why is he sleeping with one and willing to deal with the Chief Inspector?
When he finally gets the Chief Inspector on the phone to tell him he’s coming in why not tell him the story over the telephone rather than walking into his office and saying ‘SURPRISE!’?
Lastly, why not call an attorney first if he is worried there is trouble here?
I commend the jury for convicting him and I suppose a probation is the best that could be done under the circumstances so I commend the judge for not just dismissing the case.
The people of England have decided, rightly or wrongly, that they don’t require the right to bear arms and their laws reflect their serious attitude about this fact. This Clarke danced about the fringes of the law consistently. Even if his story and intentions are completely true his ‘actions’ required some sort of punishment, if only as an example of what not to do.
What you’ve first got to realise is that the English system of justice is as decadent as any banana republic! It is motivated more by politics than fair play despite what you are lead to believe! Juries only want to go home and are quite prepared to be lead by an out of touch Judge if it means they can get home early. Jury payments are normally subsidised by employers so there is no benefit to hanging it out. The British system of fair play is a fallacy and most Britons have been deluded into thinking that they live in a society “fit for heroes!” We are fast becoming the most oppressed nation in the “free world” In this country, you can get a criminal record for putting your bin out on the wrong day, for defending yourself against an unprovoked attack and for taking photographs!
Paul Clark would have done better by NOT handing the gun over to the Police!
It’s clear that this is not a case of ZT, as the police have absolute discretion over whether to pass a case to the CPS (Crown Prosecution Service), and the CPS have absolute discretion over whether a prosecution is in the public interest. I don’t know all the facts of this case nor do any of your posters, whereas it has to be assumed the police and CPS ARE in possession of the facts. The judge was clearly not pre-disposed to give a 5 year sentence, but equally if he believed Clarke had done nothing wrong he would have been more lenient than a 1 year suspended sentence.
I generally support your anti-ZT stance, as it is usually aimed, but this doesn’t fit into it.
We disagree. This is precisely the sort of prosecution we can expect from people who grow up on “must follow rules no matter what” rather than “common sense.” -rc
I personally would be afraid to even report that such a weapon was found in my yard for fear I would still be arrested for having such an instrument on my property. The “fear” is typically what causes so many failures in Humanity. We become fearful of doing the right thing as the consequences appear more threatening than purposeful ignorance.
It’s sad but informative to learn that even in England there are those, as exemplified by John (above), who have a paranoid (and fallacious) persecution complex. I wonder just how many “banana republics'” systems of justice he has studied. Whereas English Law and justice might not be perfect, it is as good as any and a great deal better than some.
To my mind this example of English justice shows it in quite a good light; the “zero tolerance”, such as it is, is really that of the Surrey police force – and one would wonder just how much that was influenced by Clarke’s previous dealings (both professional and personal) with the force and its officers. Of course, it shouldn’t have affected the issue – but that is a different matter entirely.
There are people that do not understand that ZT is anything to do with police NOT doing their job. Like any bureaucracy, things get pushed up the line, This means that there are people who do not like to make decisions. The buck has to stop someplace.
Thinking about moving to Canada, but then looked up their laws. They are based in the Commonwealth laws. They are also confusing enough, that they are rarely enforced. An attorney there would probably have a hard time telling a judge what they are.
I have had extensive training in the use of firearms. I used to sell and collect them. I also taught many (including police officers in training) how to shoot. The NRA also has an extensive training course for kids. I learned to shoot (and ride horses) at a very young age. There was nothing wrong with that. I still have several firearms the Brady bunch would like to ban.
I really believe that the police set up Mr. Clarke. They probably had been keeping tabs on him, and finding he was sleeping with one of them, tried to put him away. I don’t understand how this gun would turn up in his yard otherwise. I personally would dig a deep hole, wrap the gun in plastic, and bury it under the flower garden. Again, Clarke is still an idiot.
Of course, if the cops planted the gun, and Clarke hid it (e.g., by burying it), he definitely would have gone to prison, probably even in the unlikely event he could prove that the police set him up, since he actively participated in a crime — hiding a prohibited firearm. -rc
If Clarke had called the police and told them there was “a bag in his garden that didn’t belong to him” he still would have been guilty even if he never touched it or looked inside. The bag was on his property, hence in his possession.
When the Brits made gun possession essentially illegal the predictable result was that the number of gun-related crimes skyrocketed. The humans were disarmed and the criminals were not. They would be better off making gun possession by non-criminals mandatory.
First of all, Richard of West Sussex, I do Not have a paranoid complex, nor do I have criminal record. I have had many dealings with the Po as a victim and found them to be totally incompetent. I grew up living in between a serving Police Officer and an active convicted felon. I still have friends in the Police Force who know my reasons for disliking Police and totally agree with them. I believe in the rule of law but do not believe the British Judicial system or Police force deliver. Find one fact wrong in my posting or button it! Just because you disagree with my beliefs and experiences does not give you the right to be insulting. The fact that you are, indicates that you do not have an argument against! I have not stooped to insulting you! Kindly do not insult me!
In response to your comment, John, let me take up your challenge – although, of course, most of the beliefs you have posted are just that – beliefs. Beliefs are not facts.
Of course, it would be idle to deny that there are faults with our police and judiciary, but to use your own limited experiences of poor treatment to conclude that the whole UK system is rotten, is as flawed a methodology as it would be for me to assume from my own limited experiences of excellent treatment that the whole system is flawless.
To quote you: “…the English system of justice is as decadent as any banana republic…”. Give me some examples of English justice that is worse than that of a Banana Republic.
“…Juries only want to go home and are quite prepared to be lead by an out of touch Judge if it means they can get home early…” You have some verified statements about this “fact”? Remember, hearsay is not evidence.
“…The British system of fair play is a fallacy…”. Says who? You? Give me some examples.
“…We are fast becoming the most oppressed nation in the ‘free world’….” Really? And which of the “free world” countries are you suggesting are so much less oppressed than are we in Britain?
And finally, I do not consider that I am being insulting by suggesting that you are paranoid since that seems to me to be a self-evident fact from your own statements.
What else can be expected from a country where the government is allowed to have its inspectors peep into your windows or otherwise check inside your house to determine if you are breaking their most onerous law — watching TV without a license.
In the USA, jurors are required to make an oath or affirmation not to disclose what goes on inside a Jury room. I am not sure if it is the same in England, but if it is, John may have some direct evidence of Jury malfeasance that it would be unethical to disclose on a blog.
Given the difficulty in reporting any wrong doing of that nature in an ethical way, that will be covered, worries over how effective and ethical the jury system is have a firm foundation. However, I would like to know what John would prefer in its place.
Joshua wrote: “In the USA, jurors are required to make an oath or affirmation not to disclose what goes on inside a Jury room.”
That’s not quite true. In Florida, jurors involved in trials receive instructions not to discuss the case or their deliberations prior to returning a verdict or otherwise being released from the case. They are also told that they need not discuss the case with the lawyers or parties after the verdict if they do not wish to do so. There is no prohibition regarding discussing the case if they so desire later.
Grand jurors are frequently instructed not to disclose matters heard during their proceedings. However, those restrictions relate to different issues and may concern ongoing investigations which need to remain confidential or accusations determined to be unfounded.
Randy, I think you have been overly harsh on Paul Clarke. He may be an idiot, but that is usually not a crime.
The real problem is still Zero Tolerance which takes decisions away from those with direct knowledge regarding the circumstances of the offence and the individuals involved and places it in the hands of administrators or legislators with no respect of law enforcement or the courts.
Please read my writings more carefully. NOWHERE do I even suggest being an idiot is a crime. And I do, in fact, concentrate on the ZT aspects of the story. -rc
To Joshua and John: in England, regardless of what the rules may be in the various states of the US, jurors are forbidden by law from discussing what happens in their discussions, for ever. (Separate grand and petty juries were abolished here decades ago. I don’t know if that’s somehow connected.) I don’t know if there’s an oath required, but there are penalties for ignoring the requirement.
Also, linking in with a couple of recent comments: juries here certainly can ignore the judge’s instructions, but I’ve only heard of this being an issue when a judge has instructed them to acquit because the prosecution has not delivered a case worth answering, rather than the reverse. I don’t know what would happen if the jury ignored the question of fact they were supposed to answer (“did he have the gun”, in this case).
Finally, though I think Simon is wrong to say that this wasn’t a ZT case, I nonetheless don’t think that it was a case of “must follow rules no matter what”, but rather one of “what rules can we choose to invoke so we can’t be blamed?” We can now see that it was dealt with appropriately at a higher level. (Unlike many of my compatriots, I’m proud of our system. Slow to succeed is better than not trying to succeed at all!)
In response to John In Florida:
You do have a point. In the US the procedures and requirements can vary from jurisdiction to jurisdiction, and from Grand Jury to Petit Jury.
I imagine that the existence of differences in the jury proceedings from jurisdiction to jurisdiction exists in most nations with multiple jurisdictions, and a jury system.
Core problem here is the definition of possession. As far as it goes, Clarke did not possess a gun – at least, in theory. However, if people in charge of investigation are more worried about rule-adherence ensured job security then public-review ensured job security, law always errs in favor of criminal intents. “Guilty, until proven innocent.”
Joshua is correct in his comments about what jurors may say and discuss and when. I’ve been on juries in Ohio (USA) and this is the case here. As a juror, you may not speak to any of the parties until the case has been decided, at which time you may accept or decline any of the lawyers’ invitations to discuss the case.
In a 1979 civil case, I felt that neither party had proven their case (involving product liability) and told the respective lawyers that. Since they were from two of the city’s “finest” law firms, they were each scandalized to hear that anyone would think that of them and their silk-stocking firms.
On the other hand, after being a juror in a 1995 (?) drunk driving case, I spoke to the prosecutor and defense lawyer and complimented each (the guy was guilty and we voted that way, but his lawyer did a good job in a losing effort).
Several comments note that it was a jury trial, but in England a judge can direct a jury to a verdict (I don’t know if that was the case).
The Sun is certainly not “Smarmy” which means over-anxious to ingratiate or please on both sides of the Atlantic. “Obnoxious” might be better, almost the opposite.
Finally, if I found a bin bag dumped in my garden I would assume it was what it appeared to be and put it out for the bin men with the rest of the rubbish – isn’t curiosity a dangerous thing!
this is just to tell you that today (02.19.2010), Corriere della Sera, Italy’s most popular newspaper, runs an article on Alexa Gonzales, the NY 12-year-old pupil who was arrested for doodling on her desk. So US ZT is under discussion in Italy, too. We, however, do not seem to be affected by the same problem: we are the most tolerant people on the earth, starting with our politicians! 🙁
I have seen ZT cases in Europe, but would have to research to see if any were in Italy. Even if not, I wouldn’t be surprised to see them there in the future, so do stay vigilant! -rc
I dont appreciate your comments however I can understand why you have said them, I think that you might understand a bit better if you were to hear the full story rather than only one side (the press side).
That may be. If I’m satisfied you’re the real Paul Clarke, I’ll be happy to publish your reasonably-sized statement, unedited, on this page. -rc
An invitation for “Paul Clarke” to tell his side of the story and then…*crickets*.
You noticed that too, eh? On the other hand it’s only been 6-1/2 years, and it took him 3-1/2 just to find the page…. -rc
I recognise this is an old story, brought back to our attention by the link in your most recent edition of “This is True”. However, I think there are some points which the comments don’t wholly cover. The whole point of the jury system is that 12 people of his “peers” will listen to all the evidence in court, weigh up the circumstances and decide if a person is guilty. Strict liability laws are not the same as “Zero Tolerance” in this meaning. For example, having sex with a minor is a “strict liability” law in many jurisdictions. There is no defence that the minor looked older, lied about their age, etc. A jury listened to the whole circumstances of this case and your own narrative of what an “idiot” this man is, highlights some of the complexities of this case.
Your analogy of a member of the public disarming a gun man attempting to assassinate the Queen is ridiculous. That would not be considered “possession” and indeed, we have had examples of heroic members of the public who have disarmed terrorists in London and have been treated appropriately. The police make clear, the account provided by the defendant in this case “lacked credibility” and his account was not believed by police, the Crown Prosecution Service (which is entirely independent of the police, the jury and the judge. I have a sense that your disapproval of the British position on gun ownership in general has influenced your thinking on this matter. Zero Tolerance, of which I am a strong opponent, is where penalties are imposed and there is no opportunity for anyone to review the circumstances and apply common sense or to take account of the circumstances. In this case, a jury of 12 peers, selected independently of the police, the prosecutor and the judge, considered the evidence and decided he was indeed guilty. It takes a degree of arrogance to decide that you know better than 12 jurors who listened to the entirety of the evidence, based on limited media reports.
Your thinking seems confused. You argue that “strict liability” is very clear and there is no defense, yet also say that Clarke’s “strict liability” crime was decided upon by a jury after hearing evidence. You can’t have it both ways: a crime is either “strict liability” or it is not. And if it is, as was the entire point of the story in question, then grabbing a gun from an assassin to stop his murder is, in fact, an example of “strict liability” (not “ridiculous”) since by your own definition, “There is no defence” possible. -rc
I argued that Zero Tolerance and Strict Liability are not the same thing. I do not agree with your definition of “strict liability”. The concept is that the legislature sets out what would or would not be a defence in law but that the case would go to trial and a Magistrate or Jury would hear the case and consider the circumstances. A Not Guilty option remains and indeed in the UK, the Crown Prosecution Service, cannot proceed with prosecuting a case unless they have determined there is a greater than 50% chance of conviction, and the burden for guilty is, as it is in the US, “beyond reasonable doubt”. Zero Tolerance as applied by bureaucrats in both the US and UK typically has no such safeguards and as such is iniquitous.
We have just such a case now. A senior police officer in the Metropolitan Police received a whatsapp video from her sister which contained child pornography. It was not in any way for sexual gratification. The officer has been convicted of possession even though she neither sought nor had control of what her sister sent her. On the face of it, an injustice. However, the factor in her guilt was her failure to report the video immediately, (no doubt to try and protect her sister), and the court subsequently found her guilty. The CPS stated that had she reported the video on receipt, no charges would have been brought. This has similar elements to the gun possession case and demonstrates my point about the idea that “strict liability” would apply to a member of the public attempting to disarm an assassin. If however, the member of the public disarmed the assassin and kept the gun for 2 days before reporting it, then charges would be appropriate.
I like “iniquity” (for anyone who doesn’t know: “wickedness; unrighteousness; evildoing, infamy, depravity; gross injustice” —American Heritage); it’s rarely used here beyond our idiom “Den of iniquity,” but it describes ZT well.
I did quote what “strict liability” was near the top of the page, quoting the source story:
Thus, we’re already past the prosecutors “have determined there is a greater than 50% chance of conviction” stage, and are before a jury. So let’s lay it out in my example “taken to the extreme”: 1) Man grabs gun from would-be assassin and thus 2) heroically thwarts harm to the queen. 3) Yet our hero’s “allegedly honest intent” is “irrelevant” to the law — “by having the gun in his possession he was guilty of the charge, and has no defence in law against it” and faces a “minimum mandatory sentence” — in this case, 5 years — in prison.
That’s not MY definition, that’s a Crown Prosecutor speaking — presumably an expert on the subject (though obviously with the standard prosecutorial bias). Yet this is exactly how ZT operates. Tell me again how it’s somehow different? Ah, because a jury has the option of declaring “not guilty” in the face of irrefutable evidence of guilt since there is no possible defense! That’s a pretty flimsy safety net there, and it didn’t work in Clarke’s case: he was indeed found guilty.
I did, of course, then quote a Brit reader who introduced us to a concept not discussed in the original sources: “absolute discharge” (“an unconditional discharge whereby the court finds that a crime has technically been committed but that any punishment of the defendant would be inappropriate and the case is closed,” says the summary at Wikipedia. Even today, I’m unclear whether the next sentence applies there: “In some jurisdictions, an absolute discharge means there is no conviction on the defendant’s record, despite the plea of the defendant.” Though I doubt it in this case, as he was sentenced to 12 months in prison (despite the “minimum” of 5 years in the law), which was suspended.
Seriously, I see no difference in this situation and ZT where (for instance), schools have punished children for taking a gun away from another student intent on doing harm. You say it’s different because we have no such safeguards, yet we do: we have seen police refuse to refer such cases to prosecution (though nowhere near as often as it should be), and sometimes when they do, prosecutors refuse to prosecute, just as you say can happen in the U.K. In both countries the “ZT mindset” exists, and there are some non-guaranteed safeguards. -rc
I got here from the “10 years ago” link in the current issue, and found myself reading all of the comments. Despite the sentencing follow-up, I’m sad to know that we’ll probably never get the REAL story.
I WAS surprised that noone picked up on the judge’s comment about his time as a soldier. ANY soldier, obliviot or not, should recognize the “feel” of a weapon, even wrapped in an assumed-to-be plastic “bin bag.” No need to unwrap it, let alone take it into the house. There was no mention of other contents that might have obscured its identity.
So, right from the get-go, in my mind, his explanation “smells” fishy. The smell factor is increased by the apparent lack of related reports of police investigation into “shotgun murders” or “armed robbery with a shotgun” in proximity to the “find,” which would have been newsworthy in their own right. I think that the only “likely” time a criminal would abandon such a “valuable” (illegal, therefore hard to acquire) weapon in such a way would be while running from the threat of a “hot pursuit.” Maybe it was just the best way Mr. Clarke could “think” of to RE-think HIS acquisition of an illegal weapon. I was living in Singapore in the 1980s when the local newspaper reported the story of a citizen who, after keeping a handgun hidden in his house for 2 years or more, decided to turn it in at a police station. (He had smuggled it in from Malaysia. At the time, ALL firearms and/or their components were STRICTLY forbidden to civilians.) He was sentenced to 2 years in prison for his “change of heart.” Why didn’t he just drop it over the side of a fishing boat? If he was asked, his reply was not reported.
I completely agree, it is clear that neither the police, nor the judge and jury believed the account of the defendant.