Does the much-publicised Nightingale case set a precedent for other cases of unlawful possession? Not likely, says firearms licensing law specialist Tim Ryan
Glock 9mm pistol SAS Sergeant Danny Nightingale has put the issue of gun control in the spotlight once again. He pleaded guilty to possessing a Glock 9mm pistol and more than 300 rounds of ammunition, and was sentenced to 18 months imprisonment. Following a deluge of publicity and popular support, the Court of Appeal reduced that to a 12-month suspended sentence. The Lord Chief Justice, Lord Judge, the most senior judge in England and Wales, said Sergeant Nightingale had behaved with ‘great folly’ by keeping the pistol and ammunition in his army flat in Hereford, but that there were exceptional circumstances.
Gun crime is rarely out of the news. The killing of two police officers in Manchester only a couple of months ago filled the national papers for weeks. Public attitudes have been greatly affected by a small number of well publicised events. The names of Raoul Moat and Derrick Bird, who committed atrocities in the summer of 2010, are etched on the public consciousness like those of Michael Ryan of Hungerford and Thomas Hamilton of Dunblane from previous decades. Little surprise then that sentencing for firearms offences has become increasingly severe over the years.
In the leading case, R v Avis (1998), Lord Bingham, Lord Chief Justice, outlined the reasons for a tough approach:
“The unlawful possession and use of firearms is generally recognised as a grave source of danger to society. The reasons are obvious. Firearms may be used to take life or cause serious injury. They are used to further the commission of other serious crimes. Often the victims will be those charged with the enforcement of law or the protection of persons or property. In the conflicts which occur between competing criminal gangs, often related to the supply of drugs, the use and possession of firearms provoke an escalating spiral of violence.”
He remarked on the clear public need to discourage the unlawful possession and use of firearms and stated that, save for minor infringements, offences “will almost invariably merit terms of custody, even on a plea of guilty and in the case of an offender with no previous record.”
Mandatory minimum sentences were introduced under the Criminal Justice Act 2003. A new section was inserted into the Firearms Act 1968, imposing a five year minimum sentence for offences of unauthorised possession, buying, acquisition, manufacture, sale or transfer of guns and ammunition listed in Section 5. These include those designed for military use, such as fully automatic weapons, rocket launchers, mortars and ammunition that explodes immediately on or before impact, but also a range of other guns, including most handguns and any airgun that operates on a self-contained gas cartridge system.
The Violent Crime Reduction Act 2006 extended the mandatory minimum sentence to offences involving the criminal use of Section 5 firearms. These include possession with intent to endanger life or to cause fear of violence, the use of a firearm to resist arrest, and also carrying a firearm in a public place without lawful authority or reasonable excuse.
This last offence has potential implications for the lawful holder of a Section 5 firearm with no intention to use it criminally. Despite the lack of criminal intent, an offence might nevertheless be committed if he has it with him in a public place in circumstances that would not be covered under the terms of his Section 5 authority: for example, leaving it insecurely in a vehicle in a public place, following an unnecessary detour during transportation.
The mandatory minimum sentence must be imposed “unless the court is of the opinion that there are exceptional circumstances relating to the offence or the offender which justify it not doing so.” Whether circumstances are exceptional is a difficult call to make. In R v Rehman and Wood (2006), Lord Woolf, Lord Chief Justice, noted that these offences differed from most criminal offences, in that they are absolute offences, the consequence being “that an offender may commit the offence without even realising that he has done so.”
“There will be cases where there is a single striking feature, which relates either to the offence or the offender, which causes that case to fall within the requirement of exceptional circumstances. There can be other cases where no single factor by itself will amount to exceptional circumstances, but the collective impact of all the relevant circumstances truly makes the case exceptional.”
Mr Rehman was a 24-year-old of impeccable character who had bought a model gun to display, not knowing that it had various features that made it unlawful. The Court quashed the sentence of five years and substituted it with a period of 12 months.
Mr Wood was not so fortunate. A 41-year-old collector of guns, also of very good character, he had inherited a shotgun with a shortened barrel from his grandfather. The Court, reluctantly, upheld the minimum five year sentence in his case. The distinction was that Mr Wood was experienced enough to know that the shotgun was of a type that should not have been in his possession.
Subsequent cases have confirmed that the courts will take some convincing before being satisfied that exceptional circumstances exist. In Sergeant Nightingale’s case, the Court of Appeal accepted the arguments that were put before it, that the circumstances, which included 11 years’ exemplary service in the special forces regiment, were truly exceptional. The decision is one, however, that depends entirely on its very unusual circumstances and certainly does not indicate a softening of approach.
Despite the understandable groundswell of support for Sergeant Nightingale’s predicament, public attitudes towards guns are unlikely to have been enhanced. No government in the foreseeable future is likely to take a more relaxed view towards firearms control and the courts will continue to come down hard on those in unlawful possession.
Tim Ryan specialises in criminal defence and firearms licensing litigation.
“First published in Gun Trade News December 2012 and reproduced with kind permission”
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.