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Cite as: [2000] 1 Cr App R 471, [2000] 2 Cr App R (S) 217, [2000] EWCA Crim 1, [2000] Crim LR 307, [2000] 1 All ER 907, [2000] WLR 1262, [2000] 2 Cr App Rep (S) 217, [2000] 1 Cr App Rep 471, [2000] 1 WLR 1262

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BUCKLAND, R v. [2000] EWCA Crim 1 (18th January, 2000)

Case No: 1999/01947/Z5

IN THE COURT OF APPEAL
(CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday, 18 January 2000

B e f o r e :
LORD CHIEF JUSTICE
Mr JUSTICE GARLAND
and
Mr JUSTICE NELSON

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	R.
	- v -
	ANDREW BUCKLAND

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Mr L C Goldstone QC (assigned by the Registrar of Criminal Appeals for the appellant)
Dr David Thomas (instructed by the Treasury Solicitor as amicus)

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Judgment
As Approved by the Court
Crown Copyright ©

Tuesday, 18 January 2000
JUDGMENT

LORD CHIEF JUSTICE:
At about 4.40 p.m. on Thursday 11 June 1998 the appellant, who is now aged 31, entered a branch of Barclays Bank in Stockport. There were a few customers in the bank as he joined the queue for the Customer Service Desk, a desk where advice was given. When his turn came he handed the clerk an envelope on which he had written "This is a robbery, give us the money, I have a gun". This message was written by the appellant in his own handwriting and signed by him in his correct name. The envelope had been addressed to the appellant and bore his typed name and address on the reverse. The appellant had made no attempt to disguise himself, and produced no gun. But the clerk took the note seriously and told the appellant he needed the counter. The appellant replied "You better go and get it. I want £100,000".
The clerk activated an alarm which summoned the police. Meanwhile the appellant sat quietly and waited at the Customer Service Desk. At one point he walked to a cashier's window, tapped on the glass and said "Where is he? He's gone to get me some money and I haven't got all day". He was told to sit down and obediently did so.
When the police arrived they walked straight past the appellant, who was still sitting and waiting. He was pointed out, and arrested without a struggle. He was searched and a blue plastic imitation handgun costing £1.50 was found in his tracksuit pocket. When asked for his occupation by the custody sergeant he gave it as "Saving planet Earth". After being charged and cautioned he replied "Nuclear".
The appellant was indicted on two counts. The first count charged him with attempted robbery, contrary to section 1(1) of the Criminal Attempts Act 1981, the particulars alleging that on the date in question he had attempted to rob an employee of Barclay's Bank of one hundred thousand pounds. The second count charged him with possessing a firearm upon arrest, contrary to section 17(2) of the Firearms Act 1968, the particulars alleging that on the date in question and at the time of committing an offence specified in Schedule 1 to the Firearms Act, namely theft, he had in his possession a firearm, namely an imitation handgun. (It does not appear to have been pointed out that the relevant Schedule 1 offence committed by the appellant was not theft but attempted robbery, perhaps because it would have made no difference.)
The appellant pleaded not guilty to both counts but was convicted in February 1999. In March he was sentenced on both counts to concurrent terms of life imprisonment. The sentencing court specified a term of two years and nine months for purposes of section 28(2)(b) of the Crime (Sentences) Act 1997.
This was, on the facts, an almost farcical caricature of a professional bank hold-up. Although obviously distressing to the staff of the bank, it was scarcely an offence calling for the most severe sentence which the court can impose. But the judge held himself bound by section 2 of the 1997 Act to impose such a sentence, and found no exceptional circumstances to justify him in not doing so. The single judge refused leave to appeal against sentence, and so at first did the Full Court. But the Full Court changed its mind, and on 22 October 1999 granted leave to appeal against sentence. On the hearing of this appeal we have had the benefit of submissions not only from Mr Goldstone QC on behalf of the appellant but also from Dr David Thomas whom the Attorney General helpfully instructed as an amicus.
Section 2 of the 1997 Act obliges the court to impose a life sentence on a defendant convicted of a "serious offence" as defined in the section committed after the commencement of the section if, when committing that offence, the defendant was aged 18 or more and had previously been convicted anywhere in the United Kingdom of another "serious offence" as defined. The court is relieved of this duty only if it is of the opinion that there are exceptional circumstances relating to either of the offences or to the offender which justify its not doing so.
The appellant's record shows him to have been a persistent but relatively minor offender. One of his previous convictions, however, is central to this appeal. In November 1993, for having an imitation firearm with intent to resist arrest, contrary to section 18(1) of the Firearms Act 1968, he was sentenced to four years' imprisonment. We understand the facts of that offence to be these. On Christmas night in 1992 the appellant had been drinking alcohol and also taking a cocktail of soft drugs. He was in a friend's house in Stockport and picked up a starting pistol (or something similar) which fired caps. At about midnight, he was on his way to another house when he was stopped by the police for boisterous and drunken behaviour (which included firing the pistol). He ran off and, whilst running away, turned and fired the pistol once. He was arrested in January 1993. It is this conviction which has been treated as triggering the operation of section 2 of the 1997 Act.
On the submissions made to us five questions arise for decision.
(1) Is the appellant's 1993 conviction under section 18(1) of the Firearms Act of a "serious offence" as defined in section 2 of the 1997 Act?
Section 2(5) of the 1997 Act provides that an offence shall be a serious offence if it is
"... (g) an offence under section 16 (possession of a firearm with intent to injure), section 17 (use of a firearm to resist arrest) or section 18 (carrying a firearm with criminal intent) of the Firearms Act 1968; ...".
It is argued for the appellant, supported by the amicus, that the appellant's 1993 offence does not fall within section 2(5)(g) because it involved an imitation firearm. The 1968 Act distinguishes between firearms and imitation firearms, but the reference to section 18 of that Act in section 2(5)(g) makes no reference to imitation firearms, in contrast with section 2(5)(h), to which we will come, where such reference is made. The parenthetical summary of the effect of section 18 in section 2(5)(g) should, it is argued, be taken to limit its scope for purposes of section 2 to firearms only, excluding imitation firearms.
In our judgment this is not a tenable construction. Section 2(5)(g) makes reference to "an", which must mean "any", offence under the three Firearms Act sections. These are referred to by number, followed by the printed section heading (with the addition of the indefinite article). None of the section headings purports to convey the full effect of the section. Section 16, for instance, headed "Possession of firearm with intent to injure" makes it an offence "for a person to have in his possession any firearm or ammunition with intent by means thereof to endanger life ...or to enable another person by means thereof to endanger life". Section 17 is headed "Use of firearm to resist arrest", and makes it an offence in (1) "to make or attempt to make any use whatsoever of a firearm or imitation firearm with intent to resist or prevent the lawful arrest or detention of himself or another person". It is in our view plain that the parenthetical references in section 2(5)(g) are not intended to limit the applicable scope of those sections, but simply to convey their effect by reference to the section heading. It would be little short of absurd if a conviction based on a part of any of these sections not comprised in the section heading were held to fall outside section 2(5)(g). It is readily understandable that the draftsman made reference to imitation firearms in section 2(5)(h) because in that case he had no section to refer to.
(2) Is the appellant's 1999 conviction of attempted robbery a "serious offence" as defined in section 2?
Section 2(5) of the 1997 Act provides that an offence shall be a serious offence if it is
" ... (h) robbery where, at some time during the commission of the offence, the offender had in his possession a firearm or imitation firearm within the meaning of that [the Firearms] Act."
It is submitted that the appellant's conviction of attempted robbery does not fall within this provision, since it makes no reference to attempts. When the draftsman intended to cover attempts, as in the case of murder (section 2(5)(a)) or rape (section 2(5)(e)) he did so expressly. It must be inferred that the draftsman intended to include robbery, but not the lesser offence of attempted robbery.
We consider this argument to be plainly correct. It is not quite clear whether the sentencing judge regarded the attempted robbery conviction as triggering the operation of section 2 (which in his judgment was triggered by the firearm conviction anyway), but if he did we think he was wrong. The appellant should have been sentenced for attempted robbery on ordinary sentencing principles.
Dr Thomas advanced a further argument, in reliance on R. v. Courtie [1984] AC 463, that the absence of particulars relating to the firearm in the statement of offence of the attempted robbery count precluded the court from relying on that ingredient of the offence to impose a life sentence. Since we are satisfied that attempted robbery is not covered by section 2(5)(h) we need not address that argument.
(3) Is the appellant's 1999 conviction under section 17(2) of the Firearms Act of a "serious offence" as defined in section 2?
So far as material, section 17 of the 1968 Act reads:
"Use of firearm to resist arrest
(1) It is an offence for a person to make or attempt to make any use whatsoever of a firearm or imitation firearm with intent to resist or prevent the lawful arrest or detention of himself or another person.
(2) If a person, at the time of his committing or being arrested for an offence specified in Schedule 1 to this Act, has in his possession a firearm or imitation firearm, he shall be guilty of an offence unless he shows that he had it in his possession for a lawful object."
The appellant, supported by Dr Thomas, submits that the appellant's recent conviction under section 17(2) does not fall within section 2(5)(g) (quoted above) because the offence does not fall within the parenthetical summary of section 17 there given. This is essentially the same argument that we have already considered and rejected with regard to section 18, and we reject it in this context also. It is, however, submitted further that the reference to section 17 in section 2(5)(g) should be read as referring to section 17(1) only and not 17(2) also. This submission is based on the absence in section 2(5)(g) of any reference to Schedule 1 offences, on the very wide range of offences covered by Schedule 1 and on the suggestion that Parliament could not have intended all offences under section 17(2) to carry such potentially severe penal consequences.
Much as we would like to accept this last argument, we are unable to do so. By no process of construction can "an offence under ... section 17" be read to mean "an offence under ... section 17(1)". Had the draftsman intended his reference to be to section 17(1) only he would have been bound to say so specifically. This is what was done in section 2(6)(j) where reference was made to section 5(1) of the Criminal Law (Consolidation)(Scotland) Act 1995: a lesser offence in section 5(2) of that Act was deliberately excluded. The same technique was adopted in section 2(7)(c) where reference was made to Article 18(1) of the Firearms (Northern Ireland) Order 1981: the effect of this reference was to include the Northern Irish equivalent of section 17(1) within the scope of section 2 but exclude the Northern Irish equivalent of section 17(2). Why the Northern Irish situation should have been differentiated in that way we do not know, although it is possible to think of reasons. What is impermissible in our view is to treat the reference to section 17 in section 2(5)(g) as a reference to section 17(1) only when that is not what it says and there is nothing whatever to suggest that Parliament intended the reference to be limited in that way.

(4) Was the judge wrong to hold that there were no exceptional circumstances which justified him in not imposing a life sentence pursuant to section 2 on the appellant's conviction under section 17(2)?

Where the conditions set out in section 2 are met, the court must impose a life sentence unless it is "of the opinion that there are exceptional circumstances relating to either of the offences or to the offender which justify its not doing so". As this court pointed out in R. v. Kelly [1999] 2 WLR 1100 at 1107, [1999] 2 Cr App R (S) 176 at 182, two conditions must be met:
"First, that the court is of the opinion that there are exceptional circumstances relating to either of the relevant offences or to the offender; and secondly, that the court is of the opinion that those exceptional circumstances justify the court in not imposing a life sentence."
It is unnecessary to repeat what the court there said about the meaning of "exceptional" in this context. But the judgment whether exceptional circumstances exist is not quantitative only, but may be qualitative also. It may, to take an example from quite another field, be far from exceptional for a candidate to obtain 5 A grades at A level, but highly exceptional for this to be achieved by a candidate who is deaf and dumb or who has only spoken English for a year. In judging whether, if exceptional circumstances are found to exist, they justify the court in not imposing a life sentence, the court must bear in mind the rationale of the section. The section is founded on an assumption that those who have been convicted of two qualifying serious offences present such a serious and continuing danger to the safety of the public that they should be liable to indefinite incarceration and, if released, should be liable indefinitely to recall to prison. In any case where, on all the evidence, it appears that such a danger does or may exist, it is hard to see how the court can consider itself justified in not imposing the statutory penalty, even if exceptional circumstances are found to exist. But if exceptional circumstances are found, and the evidence suggests that an offender does not present a serious and continuing danger to the safety of the public, the court may be justified in imposing a lesser penalty.
It is not unprecedented, but it is certainly very unusual, for a bank robbery to be carried out with the incompetence and lack of aggression shown by the appellant on 11 June 1998. No physical injury was, or could ever have been, caused. The appellant never produced his blue plastic imitation firearm. Any distress to the bank staff must have been very far from extreme. The appellant made no gain and was never likely to do so. In our opinion the circumstances of this offence can fairly be described as exceptional. We consider that the judge was wrong to hold otherwise. We cannot describe the circumstances of the 1993 conviction as exceptional. But we note that, on the facts as we understand them, it was an offence adventitiously committed, no injury was or could have been caused, and it was far from the most serious of firearm offences.
A pre-sentence report dated 25 February 1999 describes the drug induced psychosis from which the appellant has intermittently suffered. His potential to cause harm was recognised as a significant factor. A psychiatric report dated 14 October 1998 suggests that psychotic symptoms from which the appellant was suffering on 11 June 1998 were an important factor in the offence. His psychotic symptoms had resolved in custody while the appellant had abstained from amphetamines. The report was broadly positive. An educational report from the prison spoke of the appellant in glowing terms. This is in our judgment a case in which, on all the evidence, it is safe to conclude that the appellant does not present a serious and continuing danger to the public such as could justify the imposition of a life sentence, and we accordingly conclude that the exceptional circumstances (already summarised) relating to the June 1998 offence were such as to justify the court in not imposing a life sentence. In all the circumstances we consider that such a sentence should not have been imposed.
To this question we accordingly give an affirmative answer.
(5) What term should the appellant be ordered to serve?
The sentencing judge gave loyal effect to the decision of this court in R. v. Marklew and Lambert [1999] 1 WLR 485, [1999] 1 Cr. App. R. (S) 6. He held that the appropriate determinate sentence on each count would have been one of seven year's'; he took half of that sentence, three and a half years'; he made allowance for the period of nine months the appellant had spent in custody; and he specified the term of two years and nine months' for purposes of section 28 on each count On behalf of the appellant it is argued that the judge took too high a starting point, and that seven years' was in all the circumstances too long on the special and unusual facts of this case.
We agree. It is true that the appellant pleaded not guilty to both counts, although perhaps understandably. His self-induced psychotic state affords no excuse. We accept that sentences for offences of this kind must have a very clear deterrent element. But we consider that seven years' was too high a starting point for these particular offences.
In the result, we allow the appeal, set aside the judge's order and substitute a sentence of four and a half years' imprisonment on each count concurrently. The appellant will be eligible for parole after serving half this term, and entitled to it after serving two thirds. He will be subject to supervision until three-quarters of the term of the sentence has elapsed. He will receive credit for the time he has already spent in custody.