The charges

"(1) On 18 June 2005 at Earl Street, Glasgow, you did conduct yourself in a disorderly manner, shout and swear, repeatedly discharge a handgun or similar instrument at the window of the house occupied by Sandra Dunlop at 116 Earl Street, Glasgow, place the lieges in a state of fear and alarm and commit a breach of the peace;

...

(3) Between 10 March 2006 and 16 May 2006, both dates inclusive, at Flat 2/1, 116 Earl Street and at the cycle path near to Balmoral Street, both Glasgow, you did have in your possession a firearm to which section 1 of the Act aftermentioned applies, namely a handgun without holding a firearm certificate in force at the time and you did commit this offence in an aggravated form within the meaning of section 4(4) of said Act, said firearm having been converted from an imitation firearm which though had the appearance of being a firearm had been so constructed as to be incapable of discharging any missile through its barrel: CONTRARY to the Firearms Act 1968, Section 1(1)(a) and 4(4) as amended by the Firearms (Amendment) Act 1988;

(4) Between 10 March 2006 and 16 May 2006, both dates inclusive, at Flat 2/1, 116 Earl Street and at the cycle path near to Balmoral Street, both Glasgow, you did have in your possession without the authority of the Secretary of State or Scottish Ministers, a prohibited weapon, namely a handgun being a firearm with a barrel less than 30 centimetres in length and which had a length of less than 60 centimetres overall; CONTRARY to the Firearms Act 1968, Section 5(1)(aba) as amended by the Firearms (Amendment) Act 1997;

....".

The judge's sentencing powers

"(1) ... [I]t is an offence for a person -

(a) to have in his possession, or to purchase or to acquire, a firearm to which this section applies without holding a firearms certificate in force at the time or otherwise than as authorised by such a certificate; ..."

By subsection (3) the section applies to every firearm, with certain exceptions which do not arise in the present case. Section 4 provides by subsection (3) that it is an offence for a person other than a registered firearms dealer to convert into a firearm anything which, though having the appearance of being a firearm, is so constructed as to be incapable of discharging any missile through its barrel. Subsection (4) provides inter alia:

"A person who commits an offence under section 1 of this Act by having in his possession or purchasing or acquiring .... a firearm which has been converted as mentioned in subsection (3) above (whether by a registered firearms dealer or not), without holding a firearm certificate authorising him to have it in his possession, or to purchase or acquire it, shall be treated for the purposes of provisions of this Act relating to the punishment of offences as committing that offence in an aggravated form."

By Part 1 of Schedule 6 to the Firearms Act (as amended), the maximum sentence for this offence, the offence having been committed in an aggravated form within the meaning of section 4(4), and the respondent having been prosecuted on indictment, was imprisonment for seven years, or a fine, or both. There was no statutory minimum sentence.

"(1) A person commits an offence if, without the authority of the Secretary of State or the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998), he has in his possession, or purchases of acquires, or manufactures, sells or transfers - ...

(aba) any firearm which either has a barrel less than 30 centimetres in length or is less than 60 centimetres in length overall, other than an air weapon, a muzzle-loading gun or a firearm designed as signalling apparatus;

..."

The maximum sentence for this offence, in terms of Part 1 of Schedule 6 to the Firearms Act, as substituted by section 288 of the Criminal Justice Act 2003, in a prosecution on indictment, was imprisonment for 10 years, or a fine, or both. By section 287 of the Criminal Justice Act 2003 a new section 51A was added to the 1968 Act. This provided a minimum sentence for certain offences under section 5. So far as relevant, it provides:

"(1) This section applies where -
(a) an individual is convicted of -

(i) an offence under section 5(1) ... (aba) ... of this Act..., and

(b) the offence was committed after the commencement of this

section and at a time when he was aged 16 or over.

(2) The Court shall impose an appropriate custodial sentence ... for a term of at least the required minimum term (with or without a fine) unless the Court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justifies not doing so.

...

(5) In this section 'the required minimum term' means - ...

(b) in relation to Scotland -

(i) in the case of an offender who was aged 21 or over when he committed the offence, five years ....".

Section 51A has been effective since 22 January 2004.

"[Section 51A] is plain and unambiguous on the face of it, and it applies whenever an individual is convicted. The contention that Parliament cannot have intended to prevent the reduction of a sentence following a guilty plea is not, in our view, correct."

At paragraph 26, the Court said: "The rigour of section 51A is mitigated by the possibility of exceptional circumstances being found." At paragraph 30 they said:

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

At paragraph 11 the Court said:

"[I]t is not appropriate to look at each circumstance separately and to conclude that it does not amount to an exceptional circumstance. A holistic approach is needed. There will be cases where there is one single striking feature, which relates either to the offence or the offender, which causes that case to fall within the requirement of exceptional circumstances. There can be other cases where no single factor by itself will amount to exceptional circumstances, but the collective impact of all the relevant circumstances truly makes the case exceptional."

At paragraph 12 the Court said:

"So far as we can determine the rationale of Parliament, the policy was to treat the offence as requiring a minimum term unless there were exceptional circumstances, not necessarily because the offender would be a danger in the future, but to send out the deterrent message to which we have already referred. The mere possession of firearms can create dangers to the public. The possession of a firearm may result in that firearm going into circulation. It can then come into possession of someone other than the particular offender for example by theft in whose hands the firearm would be a danger the public. Parliament has therefore said that usually the consequence of merely being in possession of a firearm will in itself be a sufficiently serious offence to require the imposition of a term of imprisonment of five years, irrespective of the circumstances of the offence or the offender, unless they pass the exceptional threshold to which the section relates."

"In our judgment, the appellant's psychological condition does not constitute exceptional circumstances within the meaning of [section 51A]. The appellant knew what he was doing and knew that what he was doing was wrong. He retained the prohibited weapon with that knowledge. The intervention of a specialist firearms team was required to find the weapon in his house. In the context of a statute intended to protect the public from the possible consequences of unlawful possession of firearms, evidence, in an intelligent man, well aware of the public issues involved, of feelings of compulsion to obtain and store guns, does not amount to exceptional circumstances."

Finally, in R.v Rehman & Wood, the appellant pled guilty to possession of a replica blank-firing handgun which, although a replica, could easily be altered to as to be capable of firing live ammunition. He was a collector of models and purchased the replica firearm with the intention of displaying it. He said that he did not know that the gun could be converted. He had a positively good character. His background, his ignorance of the unlawfulness of the weapon, his plea of guilty at the first opportunity, his previous good character, his co-operation throughout the search and arrest procedure and his employment with a public authority of which he was a valued employee, collectively made it possible to come to the conclusion that exceptional circumstances existed. The appellant Wood pled guilty to several contraventions of the Firearms Act, including one count of possession of a prohibited weapon, which was a single-barrelled shotgun with a barrel less than 30 centimetres long. He was a collector of weapons. He was of extremely good character, as described in the report. He had inherited the weapon from his grandfather. The Court said, at paragraph 32:

"[H]e of all people should have understood that this was not the sort of weapon which should have been in his possession. He did not take the action which he should have done to check whether it was lawful to possess it. The fact that he had committed the other offences demonstrates that he did not attach sufficient significance to the very strict statutory provisions which applied to the possession of firearms. The other offences are not ones to which section 51A applied. But they showed on his part a carelessness with regard to the possession of firearms which prevents us treating the circumstances as exceptional."

The history of the case

Previous offending

The circumstances of the offences

"INTRODUCTION
The accused and the Crown witness Sandra Dunlop have been in a long-term relationship for approximately 28 years. They have 2 children as a result of this relationship, Angela McGovern (23) and Lewis McGovern (15).

CHARGE 1

About approximately 11pm on 18 June 2005, Sandra Dunlop and her son Lewis McGovern were within the flat at Flat 2/1, 116 Earl Street, Scotstoun, Glasgow. At this time Sandra Dunlop answered the close security entry buzzer and found it to be the accused seeking access. Due to Sandra Dunlop and the accused being estranged partners, and a recent argument, Sandra Dunlop did not allow the accused access to her home and refused to activate the door entry system giving the accused access to the common close.

The accused then started to shout and swear at Sandra Dunlop. She informed the accused that she was going to phone the police, and moved towards her phone. Within her hallway she heard a loud 'bang' and saw a flash.

Sandra Dunlop then phoned the police, dialling 999.

At this time the parties' 15-year-old son Lewis made his way over to the livingroom window giving a view over Earl Street. He saw the accused make his way over to a nearby skip where he appeared to retrieve an item. The accused then moved to the centre of the roadway directly outside the flat, and looked up towards the window of the premises.

Fearing that the accused was about to throw an item at the window, Lewis McGovern stepped back, losing the accused from his view. However, Lewis McGovern heard a loud bang, but did not see what the accused had retrieved from the skip or what had caused the noise.

At the same time, neighbours of Sandra Dunlop were within their flat, having settled their children down for the evening. They heard the sound of the argument between the accused and Sandra Dunlop, and heard a loud bang. They looked out of their living room window and saw the accused standing in the roadway outside.

The accused was seen to be holding an item, which looked like a small pistol type handgun approximately 8" in length. The accused appeared to be pulling on the top of the pistol in what could be described as a cocking motion, and pointed it in the general direction of Sandra Dunlop's window before firing it.

The accused repeated this action before placing the pistol in the holdall he was carrying and making off along Earl Street. The police were again called.

At approximately midnight on the same day Angela McGovern, the daughter of the accused, was in her next-door neighbour's house, when her partner informed her that he had allowed the accused into their home at 56 Larchfield Avenue, Scotstoun.

Angela McGovern returned home, and entered her living room where she found her father. She spoke to him briefly, and then embraced him prior to his leaving. At this she felt a hard object within the accused's waistband. She asked her father what the object was and he replied 'That's my gun in there be careful.'

Angela McGovern did not see the gun referred to, but instructed the accused to leave, as she was nervous.

Meanwhile police officers received a message via personal radio within regards to an ongoing firearm incident at 116 Earl Street, Glasgow. A full firearms procedure was adopted resulting in the attendance of armed response unit and dog units. The locus was secured and searched with a negative result.

At approximately 2055 hours, on 21 June 2005, police officers met the accused by arrangement, and the accused agreed to attend a City Centre Police Office on a voluntary basis. He was later interviewed there and stated with regard to his attendance at Earl Street: 'I was asking her to give me some money [be]cause my money goes through my daughter's bank account. She refused to even give me ah couple of pound, that's all I was wanting'.

When asked: 'That's the information we've got, you were shouting and swearing and then, they're speaking about this flash, this bang and there is witnesses saying they saw you in the street, with what appears to be a handgun?'

The accused said: 'It's an imitation starting, well it's a starting pistol, nothing comes out of it, it's just a noise.'

The accused was cautioned ad charged and made no reply.

The pistol was not recovered.

CHARGES 3 & 4

Around 10 March 2006 Sandra Dunlop states that she was within her home address, along with the now accused, within the main bedroom. Sandra Dunlop saw the accused remove a blue polythene bag from under the bed, which contained a handgun.

The accused then removed the handgun from the bag.

At 2.55pm on 16 May 2006 police officers went to Sandra Dunlop's address, as a result of a matter no longer before the court. They detained the accused and conveyed him to Glasgow City Centre Police Office.

At approximately 6pm he was taken to an interview room, to be interviewed. While in the room and before the interview began, the accused asked to be informed why he was being detained although this had already been explained. He was informed again of the reason for his detention.

The accused, at this time, stated: 'Look, I want to help. I have been wantin' tae hand this in for weeks. Gie us a bit of paper'. He was given a sheet of paper in order that he could draw the police witnesses a sketch of the area in which the gun could be found. The accused thereafter stated, 'You'll get the gun. A blue bag like you get in the Paki shop. It's at the fence across from ma hoose'.

As a result of the information given by the accused, police officers went to the area described by the accused, and recovered a silver-coloured, black handled handgun.

On examination by Ballistics Officers, the weapon was found to be a blank firing self loading (sometimes called semi automatic) pistol. The weapon was German in origin, and was originally designed to fire 9mm blank rounds.

The weapon on closer examination was found to have been converted to be capable of firing modified blank firing cartridges loaded with a steel ball bearing. The pistol was modified, by cutting off the standard barrel just forward of the gas vent. The remaining portion of the barrel had been opened up possibly by drilling through into the forward end of the chamber block.

Within the lab, test shots were fired successfully using a 9mm centre fire blank cartridge and a modified blank cartridge. The blank round performed as normal although the pistol did not self-load due to the modifications made.

A modified round with the ball bearing was fired and found to have a lethal potential."

Social Enquiry Report

"Mr McGovern reports that he had purchased the gun with the intention of converting it from an imitation firearm to one capable of firing live bullets for the purpose of a newspaper article, which he proposed to compile with a journalist friend. Mr McGovern reported that he recognises the seriousness of the illegal possession of such a weapon, however presented, in the opinion of the writer, as somewhat blasé in discussion of the potential consequences of owning or using a gun, for instance Mr McGovern stated that he believed that while terrified, his family 'knew I would never shoot anyone'."

The News of the World

[19] The sentencing judge was provided with information about co-operation between the respondent and a journalist working for the News of the World. The information was contained in a copy of report from that paper dated 29 October 2000 and a statement by the journalist, David Leslie. The journalist stated that he was introduced to the respondent in early 2000. The respondent agreed to act as a "snout" for the journalist, passing on any newsworthy items that he felt would be of interest. The respondent provided the journalist with information and practical assistance, involving the purchase of a replica handgun and its modification to fire live bullets, which led to the story published on 29 October 2000. The respondent attempted to provide further assistance to the journalist in later years in connection with the availability of illegal firearms. It would appear that the respondent was remunerated for his efforts. No specific mention is made in the journalist's statement about contact between him and the respondent in connection with the firearm mentioned in charges 3 and 4.

The plea- in-mitigation

"In particular, it was said that there would have been no prosecution but for the fact that [the respondent] voluntarily advised the police of where the gun could be found. He also gave a full explanation as to how he had come into possession of the gun. It should be emphasised that the gun described in charges 3 and 4 was a totally different gun from that described in charge 1. I was also given some documentary evidence to the effect that the appellant had been assisting a journalist from the News of the World newspaper in setting up a story which described how guns could be obtained in the West of Scotland and handed to the police, thus allowing the newspaper to claim credit for an act of public service. The appellant had acquired the gun for this purpose and also to allow the journalist to do further articles on the ease with which firearms could be obtained in Glasgow."

The sentence

"Now the first thing I want to make clear is that these two charges [sic] will be dealt with entirely separately. Both of them I regard as serious and they are made worse by the fact that you have an appalling criminal record. I am particularly concerned that two assaults in the past have been committed against your partner. The Court has very little time for people who behave in this way and, in addition, in terms of the present first charge it is clear that you intended to intimidate her in a way that I find truly appalling.

I have also at the same time, of course, to consider the second charge, I beg your pardon, the third and the fourth charges which are of course entirely separate. The reason behind your acquiring these items seems quite extraordinary but [counsel] has persuaded me, particularly on the basis that you voluntarily went to the police to advise them of the position, that there are exceptional circumstances that justify the Court considering another sentence than the minimum of five years' imprisonment which would otherwise be imposed. It does, however, remain a serious matter. I also accept that from the outset you have been prepared to plead guilty and I think that, I am prepared to give some effect to the suggestion that you were not in a position to put in section 76 letter.

As far as the charge of breach of the peace is concerned, because I say I regard that as very serious, I am satisfied that with your record and previous history of assaulting your partner that had you gone to trial you would have faced a lengthy prison sentence of perhaps five years. I am prepared to accept, however, all the mitigating factors that have been adduced in your favour. I have taken into account the letter written by your wife and your early plea of guilty and have decided that the sentence to be imposed is one of three years imprisonment on charge 1. In respect of the second charge, I beg your pardon, the second two charges, charges 3 and 4, I am prepared to depart from the minimum sentence, as I have indicated, and I shall impose a sentence of three years imprisonment on charge [4]. You will be admonished on charge [3].

...

Now in addition, in respect of each of these two charges [charges 1 and 4] there will be an extended sentence of post-custodial supervision for two years. ... I have imposed sentences of three years' imprisonment on each of charges 1 and [4]. I had given thought to making these consecutive, in other words you would have served six years' imprisonment but in the hope that you will take advantage of your partner's generosity in having you back and that you will have learnt your lesson in respect of these matters I am prepared, in the circumstances, to make the two sentences concurrent."

"The exceptional circumstances in charge [4] were that the [respondent] himself had brought the existence of the gun to the attention of the police, and this was the entire basis of the charge. This was not in any way disputed by the prosecution. There was no suggestion that it had been used for any criminal purpose. In addition the respondent had pled guilty at a continued preliminary hearing. Accordingly, I felt entitled to [conclude] that special circumstances existed for not imposing the minimum sentence of five years' imprisonment. ... In addition, as the minimum sentence was now not applicable, I considered it further appropriate to give the [respondent] the benefit of a discount for his plea of guilty at a preliminary hearing, and reduced the sentence to one of three years' imprisonment. I also considered in this respect, and in making the sentences concurrent, that an excessive sentence might deter others wishing to hand in guns in the future."

The appeal to this court

Submissions for the Crown

[25] On behalf of the Lord Advocate, the Advocate Depute submitted that the sentencing judge erred in law in holding that exceptional circumstances existed. The two factors taken into account by him in reaching that decision were the manner in which the existence of the firearm came to the attention of the police and the respondent's plea of guilty. The sentencing judge placed undue weight on the means by which the firearm had been recovered. He erred in holding that but for the respondent's admissions there would have been no prosecution. Neither he nor the respondent could exclude the possibility that the firearm would be discovered and linked to the respondent by some other means. The respondent revealed the whereabouts of the firearm to police officers on 16 May 2006 while in custody on another matter. He appeared on petition on 17 May 2006, and was remanded in custody. He was served with an indictment on 31 July 2006 for a preliminary hearing on 31 August 2006. At that hearing the case was continued on defence motion to allow a firearms expert instructed on behalf of the respondent to provide his report. An offer to plead guilty to charges 1, 3 and 4 was first received on 4 September 2006. In these circumstances the plea of guilty was of little utilitarian value. The timing of the plea was in no way exceptional, and the plea was all but inevitable standing the evidence against the respondent. His action in bringing the existence of the firearm to the attention of the police might be indicative of a certain degree of remorse, and was mitigatory, but these factors could not, either individually or taken together, amount to exceptional circumstances.

Submissions for the respondent

Discussion

Decision