As we have previously mooted, every so often a case comes before the court that leaves you thinking "how has it got this far?"
A case in this category springs to mind from the not so distant past.
It can't have escaped anyone's notice that knife crime is of increasing concern to the general public and authorities alike. Barely a day goes by when you don't hear about someone being killed, severely injured or robbed by a perpetrator wielding an offensive weapon.
On 17th July 2015 the "second strike" rule was introduced, which means adult offenders convicted of possession of a bladed article or offensive weapon for the second time will face a minimum sentence of 6 months' imprisonment, unless (and exceptionally) it is contrary to the interests of justice to impose such a sentence.
The case leaving us pondering "how has it got this far?" involved an angler who admitted possession of a bladed article in a public place. This is an offence contrary to section 139(1) of the Criminal Justice Act 1988. We have changed the specific identifying circumstances of the offence, but the essence remains intact.
It was a glorious day and the angler in question, a man of previous good character, decided to partake in his favourite pastime by visiting the seaside. He packed his fishing gear in his bag, rod under his arm and used public transport to get to the coast.
Being an angler he had a knife - a lock knife, which can be considered an offensive weapon under the legislation - packed in his bag, but as he was travelling between home and his fishing spot he had reasonable cause for doing so.
On the way home he was walking along the seafront to get to the appropriate bus stop. He felt something under his foot which bothered him, so he lifted up his boot to reveal a large piece of gravel wedged in the grooves of the sole. He sat down on a bench and tried to prise the offending piece of gravel from his sole, but it refused to budge.
It was at that point that he presented the knife from his bag and used it to dislodge the gravel from the sole of his boot. Unfortunately for him, a passing member of the public saw the blade glinting in the sunlight and reported him to the police.
Within the space of 5 minutes the police turned up and had no difficulty identifying the man with a fishing rod under his arm walking along the prom. He was searched, the knife was found and he was arrested. As chance would have it CCTV footage was available that showed the man using the knife, for no more than 10 seconds, as he sat on the bench.
The prosecution case was that the defendant was not angling at the time of the offence and the blade was not being used for an angling purpose. The prosecutor added that the defendant presented the blade in a busy area, with members of the public milling about, and the witness was so alarmed at what she had seen that she reported it to the police.
As the defendant admitted the charge, the defence conceded that for the short time he was sat at the bench he had no reasonable cause for possessing the knife.
In our earlier post on sentencing we explained that guidelines are used to determine the seriousness of an offence in terms of the offender's culpability and the level of harm caused or likely to be caused. Even pitching this offence at the lowest possible level, it fell into a category A2 given the involvement of a blade.
The starting point for a category A2 offence is 6 months' custody, with a range between 3 months' and 12 months' custody. If we followed the letter of the guidelines we were in a situation where would would be imposing a custodial sentence on a man of good character who had technically committed the offence in a momentary lapse of judgement.
Guidelines are extremely useful, but they are not always a substitute for common sense. There was no way it would be in the interests of justice to impose a custodial sentence on the defendant, so on this occasion we used our discretion to step outside the guidelines.
Given the unusual and exceptional circumstances consideration was given to a conditional discharge, but in the end we opted to impose a fine. We also granted a prosecution application for the forfeiture and destruction of the defendant's knife. Given the nature of the offence it will count as the defendant's first strike, but he is extremely unlikely to reoffend.
Was it really necessary to criminalise a man of good standing in the first place? Probably not. The circumstances in this particular case were certainly not those the legislation was intended for.
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