England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Wednesday, 4th May 2005

1. THE VICE PRESIDENT: On 8th February 2002 at Minshull Street Crown Court, Manchester, following a trial before Mr Recorder Browne, this appellant (as she now is in relation to sentence) was convicted on count 1 of the indictment, of possessing a firearm with intent to cause fear of unlawful violence and on count 2 of affray. She was sentenced on 29th March by Mr Recorder Browne to 6 months' imprisonment on count 1, and 1 months' imprisonment concurrently on count 2. Her co-accused, John Cavanagh, with whom she lives, was acquitted on count 2. Her applications for leave to appeal against conviction and sentence were referred to the Full Court by the Registrar and for reasons which we now give we refuse leave to appeal against conviction but we have granted leave to appeal against sentence.
2. The appellant lived with John Cavanagh and her three children in Urmston, Manchester. Both she and her partner are teachers. For some time prior to 14th August 2004 the appellant and her family had been subjected to a number of incidents taking place at their home, including two burglaries, criminal damage, thefts and nuisance telephone calls. The appellant believed that the incidents were connected with each other and demonstrated a campaign of harassment against her and her family.
3. The facts are conveniently rehearsed by the learned Recorder when he passed sentence. He described them as being either not in dispute or as the jury must have found them:

"At about midnight on the 14th August last year you were at home with your partner John Cavanagh and your then 17 year old son Craig. You looked out of the kitchen window of your house on Hollyhouse Drive in Urmston and you saw that a water canister had been placed on top of your other son James' car. It had been turned onto its side and water was dripping from it. This episode was, as you believed, another example of the anti-social behaviour which you and your family had been subjected to over a protracted period of time. As the water was still dripping from the cannister, you decided that the individuals who had done this must be nearby. You assumed that these individuals were likely to be the same individuals who had committed the other anti-social activity. You went out and approached boys who were on Delamere Road near to your home. You shouted abuse at these boys, including the use of bad language. You were, as you conceded, ranting and raving like a lunatic. These boys denied any involvement in any of the anti-social acts committed against you and there is no evidence whatsoever that would contradict those denials. You told the boys that you were going home to get your guns. At home you kept, in separate rooms, an air rifle and an Author air pistol. Both weapons were capable of causing lethal injury. Those weapons, or at least the air pistol, were kept in your house to frighten burglars. You took those weapons from those separate rooms. Before you left the house with them, you fired the air pistol in the house probably twice and a pellet from the gun almost hit your son who was standing on the landing. You knew what you were doing when you went back to get those guns. You also made a 999 call to the police, the tape recording of which we have heard in court, in which you told the operator that you were going out to shoot the boys. Despite John's efforts to stop you going out, you still went out with the air rifle cocked open at the barrel and the air pistol. As the jury have found, you went out with the intention of frightening those boys. You approached Robert McKiernan and fired at least two pellets from the pistol at the ground near his feet. You were acting in a controlled manner when you fired that weapon, in that you knew exactly what you were doing. Shortly afterwards your partner arrived at the scene, but the argument with McKiernan continued until a passing police patrol arrived. You accept that the police must have been very frightened by the incident which confronted them on their arrival.

The courts in dealing with offences such as those of which you have been convicted, discourage two things. First, vigilante action, which is the taking of the law into one's own hands, secondly, the use and discharge of firearms in a public place. The use and discharge of firearms in a public place is a cause of great public concern. Even on a misunderstanding of the facts here, there can be no excuse whatsoever for what you did that night. Even had those children been involved in anti-social activity against you, there was never any suggestion that they had ever armed themselves with any weapon and your response, in going out into the road, at night, with guns, was a wholly disproportionate response. The jury rejected your defence, namely that you only had the gun with you, to protect yourself."

The learned judge went on to refer to a decision of this Court in R v Avis [1998] 1 Cr App R 420 to which we shall later return.

4. The appellant seeks to appeal against conviction on a single ground, namely, the availability of fresh evidence in the form of two statements from Mr David Matthews, who was the appellant's milkman. Leave is sought to adduce that evidence on the basis that, had it been heard by the jury, it might have made a difference to their verdicts and therefore the convictions of the appellant are said to be unsafe.
5. By virtue of section 23 of the Criminal Appeal Act 1968 as amended, in deciding whether to admit those two statements, which are dated 15th February 2005 and 9th March 2005, we have to consider whether this is necessary or expedient in the interests of justice, having regard, among other things, to whether the evidence appears capable of belief, may afford a ground for allowing the appeal, and would have been admissible at trial.
6. We declined to admit that evidence for three principal reasons: first, it is on its face of questionable value. The two statements are, in several respects, inconsistent with each other and both show obvious uncertainties. Furthermore, the two events described as having occurred in about April 2004 were not of such significance to Mr Matthews as to cause him to tell anyone (including the appellant) about either of the until nearly a year later, in February 2005, after the appellant had been convicted at trial.
7. Secondly, on the assumption that Mr Matthew's account of events is correct, it simply does not support an assertion that Robert McKiernan was responsible for any damage to or vandalism of the appellant's property. At best, the second incident described, suggesting that McKiernan, contrary to his evidence before the jury, had been to the appellant's house on an occasion in April 2004, could, as seems to us, only bear on McKiernan's credit. Evidence bearing solely on credit is not, save in exceptional circumstances which do not arise in this case, admissible.
8. Thirdly, the statements, as it seems to us, afford no ground for allowing the appeal. The jury heard the different accounts given by the appellant, Mr Cavanagh, Mr McKiernan and a young man called Nicholas Violet. They knew of the previous convictions of McKiernan and Violet. They had to decide what happened at the time the firearm was discharged and whether this might amount to lawful self-defence in view the appellant's fears. The statements by Mr Matthews throw no light on those matters. It is therefore, as it seem to us, inconceivable that had the jury been permitted to hear what appears in those statements, their verdict might have been different.
9. Accordingly, the proffered evidence affords no ground, even arguably, for allowing an appeal against conviction. It was for these reasons that a short time ago we refused leave to appeal against conviction.
10. So far as sentence is concerned, Miss Arshad, in written and oral submissions, submits that the imposition of a custodial sentence was wrong in principle because of the background to the offences which we have shortly summarised and the strong personal mitigation of the appellant: that we shall rehearse in a little detail in a moment. As we have already said, she is of previous good character and is now 48 years of age.
11. The principal offence of which the appellant was convicted was possession of a firearm with intent to cause a belief that unlawful violence would be used, contrary to section 16A of the Firearms Act 1968. That offence is punishable with up to 10 years' imprisonment. An air pistol is a firearm for the purposes of the Act, and it is capable of causing serious injury or, in certain circumstances as this Court knows, death.
12. The premeditated, deliberate discharge of a firearm in a public place, at least twice, having earlier tested the gun to make sure it was working, should, on the face of it, attract a custodial sentence of considerable length.
13. If the courts were generally to respond to such conduct in any other way, it would be a recipe for both anarchy and injury of the innocent. As Lord Bingham of Cornhill Chief Justice said in Avis at page 185 to 186, referring to the Firearms Act 1968:

"Save for minor infringements which may be and are properly dealt with summarily, offences against these provisions will almost inevitably merit terms of custody, even on a plea of guilty, and in the case of an offender with no previous record. Where there are breaches of section 16A.... the custodial term is likely to be of considerable length."

It is to be noted that Lord Bingham used the words "almost inevitably" and "likely to be". He was not enunciating a principle of universal application. Everyone who is acquainted, however briefly, with what happens in our criminal courts knows that there are, from time to time, exceptional cases calling, if justice is to be done, for the delicate exercise of an often difficult discretion; albeit that, in recent times, Parliament, in its enthusiasm for mandatory minimum sentences and apparent determination to reduce judicial discretion, has seemed unwilling or reluctant to recognise this.

14. In the present case the sentencing exercise was extremely difficult. The Recorder cannot sensibly be criticised for heeding this Court's generally severe approach to the possession and use of firearms.
15. The question which arises on this appeal is whether the circumstances were so exceptional that 6 months is manifestly excessive because either a non-custodial penalty, or a much shorter period of custody, was called for.
16. The mitigation is great. The appellant, as we have said, is 48 years of age, with a family. She was of good character, not only in the sense that she had no previous convictions, but also because, as a teacher for 25 years, she had made a valuable and important contribution to the community in which she lived. She and her family, over a period of several months, had suffered the attacks on their home to which earlier we referred. The appellant believed that the incidents were linked and intended as harassment by youths in the neighbourhood. She also believed, on this eventful night that McKiernan was one of those responsible. Such harassment, even if McKiernan was responsible, may explain, though it does not begin to justify, the use of a firearm in the way we have described, particularly, when it was to be expected that the police were on their way to the scene. Old and recent history teaches us that those who take the law into their own hands are often unreliable when seeking to identify those whom they believe are properly the subject of their wrath.
17. Additionally, however, the appellant was in a fragile mental state by reason, partly, of pressure at work, where for 3 years she had been working with emotionally disturbed children, with behavioural problems, and her school had recently been placed under Special Measures. Also, by reason of her age, she was undergoing mood swings and emotional upset. In consequence, she was suffering, in the terms of the psychiatrist's report, which was before the Recorder "an adjustment disorder", making her more likely to overreact to minor stress. This may properly be regarded as reducing her culpability, though she was well aware of the consequences of her actions. She told the psychiatrist that her behaviour at the time of the offence had not been "particularly sensible".
18. The pre-sentence report assessed the risk of re-offending and harm to the public as low and suggested a community punishment order. It also suggested, presciently in the light of subsequent events, that "a custodial sentence could have the effect of making her a martyr to the media and those members of the public who feel anti-social behaviour is being dealt with too leniently." There are, as is to be expected, excellent prison reports on the appellant.
19. Taking all these features into account, it would, in our judgment, have been open to the Recorder to take the very exceptional course of imposing a non-custodial penalty. Even if custody were thought to be inevitable, a sentence of 3 months would have been just as effective as 6 months (see R v Ollerenshaw [1999] 1 Cr App R(S) 65). In any event, no useful public interest would now be served by the appellant's continued incarceration. We do not think, in the light of all the circumstances, that it is, at this stage, appropriate to impose a community penalty. Accordingly, we allow this appeal by quashing the sentence of 6 months and substituting a conditional discharge for 12 months.
20. THE VICE PRESIDENT: Mrs Walker, would you stand up a moment? What that means is simply this: that if, as I am sure will be the case, you do not get into any further trouble in the course of the next 12 months, you will hear no more about this. If you do commit any criminal offences, you can be brought back to court and resentenced for this offence. I am sure that will not happen. The order of the Court is a conditional discharge for 12 months, which I am sure you understand.