Case No: CO/2234/2000
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
 
Royal Courts of Justice
Strand, London WC2

Date: Thursday, 7th December 2000

B e f o r e:

LORD JUSTICE MAY

MR JUSTICE POOLE
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THE QUEEN ON THE APPLICATION OF

SMITH

‑v‑

SOUTHWARK CROWN COURT

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Computer‑aided Transcript of the Stenograph Notes
of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2HD
Telephone No: 0207‑421 4040/0207‑404 1400
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(Official Shorthand Writers to the Court)
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MR S D BATTEN QC (instructed by Devonshires, Salisbury House, London Wall, London, EC2M 5QY) appeared on behalf of the applicant

The respondent did not attend and was not represented

J U D G M E N T
(As approved by the Court)
 
1.	MR JUSTICE POOLE:  This is an application for an order of certiorari quashing the order of HHJ Elwen at the Southwark Crown Court on 23rd June this year sentencing the applicant to concurrent sentences of three months’ imprisonment. These sentences followed his pleas of guilty before the Stipendiary Magistrate and committal for sentence to the Crown Court in relation to six charges of possession of a rifle to which section 1 of the Firearms Act 1968 applied, without holding a firearms certificate in force at the time, and associated charges of possession, both of three sound moderators and of quantities of ammunition.
2.	The application does not extend to the forfeiture and destruction order that was made at the Southwark Crown Court.
3.	We have had the benefit of a full transcript of the proceedings before his HHJ Elwen, including both the prosecution opening facts and the mitigation before him of Mr Batten. We have been assisted further by skeleton argument and by oral submissions from Mr Batten.
	It is common ground:
	(a) that all of the weapons and ammunition had had the benefit of firearms certificates, issued on  22nd September 1994;
	(b) that those certificates expired on 21st September 1997;
	(c) that a letter of reminder was sent to the applicant on 24th November 1998 by an Inspector Cooper of the Central Firearms Inquiry Team;
	(d) that in a search of the applicant’s premises in London in February of last year the weapons were found securely locked away;
	(e) that the applicant is a man of good, indeed of exemplary, character and a minister in the Baptist Church;
	(f) that he and members of his family had had the weapons for the bona fide purpose of vermin control on the estate in Herefordshire where he and they were living when the certificates were issued;
	(g) that the police were made aware of the transfer of the weapons when the applicant and his family moved to London in 1995.
4.	There is not therefore in this case the slightest suggestion that the weapons were ever put to improper use or concealed as to their existence or whereabouts from the proper authority.
5.	His pleas of guilty were tendered, we are told, on the basis that by failing to renew the certificates he had committed a technical breach. The prosecution  accepted that for a fee of approximately £20 the licences would have been renewed by an administrative act. Mr Smith and his family simply forgot to renew the licences, and for that he accepts full responsibility on his behalf and on theirs.
6.	Because he was sentenced to a period of less than six months’ imprisonment following committal for sentence by the Magistrate, the applicant does not have a right of appeal to the Court of Appeal Criminal Division; that is by virtue of the provisions of section 10(3) of the Criminal Appeal Act 1968. Judicial review, therefore, is his only forum.
7.	We have been told and we accept that at the time of his failure to renew these certificates, the lives of Mr Smith and of his family were in some turmoil by reason of major litigation to which they were unwilling parties in the United States. There is no need for this court to visit the detail of that litigation. Suffice to say that it absorbed a large portion of the time and energy of the applicant, and frequently kept him abroad in the United States during the period in question, including the period of non‑certification.
8.	We have been referred to a number of authorities, including R v Avis and others [1998] 1 Cr App R 420, and to the sentencing guidelines therein of Lord Bingham, then Lord Chief Justice. We have also  considered the cases of R v St Albans Crown Court ex parte Cinnamond [1981] QB 480 DC, and R v Crown Court at Croydon ex parte Miller 85 Cr App R 152 DC, as well as section 43 of the Supreme Court Act 1981.
9.	The effect of section 43 is that the Divisional Court may act where a lower court has acted in excess of jurisdiction or otherwise wrongly in law. In ex parte Cinnamond it was held that where a discretionary sentence is wrong in law or “in excess of jurisdiction” or is harsh and oppressive or otherwise so far outside the normal sentence imposed for the offence as to lead the court to conclude its imposition must have involved an error in law, then this court may interfere with such sentence.
10.	In ex parte Miller it was said that the principle in ex parte Cinnamond would only operate in the case of a sentence which was prima facie lawful if it was by any acceptable standard truly astonishing. In R v Acton Crown Court ex parte Bentley 10 Cr App R 105 DC, the formula used was “irrational and truly astonishing”, but more recent authorities seem to have applied a somewhat less rigorous test, for example, R v Truro Crown Court ex parte Adair [1997] COD 296 DC, where it was said that a sentence was liable to be quashed if it falls outside the broad area of the lower court’s discretion.
11.	In considering the present case, I have looked with particular care at the appropriate questions posed by Lord Bingham in Avis; they are these:
	1. What sort of weapons are involved?
	2. What (if any) use has been made of them?
	3. With what intention did the defendant possess them?
	4. What is the defendant’s record?
12.	There is no need to repeat here in extenso the observations of Lord Bingham in Avis. They reflect the public and Parliament’s concern in the sensitive area of firearms possession and control. But at page 430 paragraph E Lord Bingham said this:
“Save for minor infringements which may be and are properly dealt with summarily, offences against these provisions will almost invariably merits terms of custody, even on a plea of guilty and in the case of an offender with no previous record.”
13.	The question therefore arises whether this applicant’s infringements may properly be viewed as minor. We have been persuaded by Mr Batten’s argument that they may and that they should be so viewed.
14.	On all of the evidence this failure to renew was due to nothing more complicated or sinister than the oversight of a man distracted by unrelated litigation of which he was not the author but the target. Furthermore, it was the oversight of a man of exemplary character, who, unlike those in the cases reviewed by  Lord Bingham in Avis, on all of the evidence had not the slightest intention either to put the weapons to any nefarious use or to conceal their whereabouts from the police, who were fully informed of their whereabouts.
15.	We do not underestimate the seriousness of a failure to renew a certificate in any circumstances. Certification is an important, indeed a vital, component in the process of control, and failure to renew a certificate may well on its own, provided the circumstances are appropriate, be marked on conviction by a sentence of imprisonment.
16.	We are also conscious that the hurdle to be cleared on an application to quash in this court is higher than that in an appeal against sentence to the Court of Appeal Criminal Division.
17.	It was seriously negligent of this applicant to have overlooked his duty to renew. Of that I am satisfied. But I am also satisfied that properly viewed on its own particular facts, his was one of those minor infringements in the contemplation of Lord Bingham in Avis, and that the sentencing judge, in concentrating on the generally and properly rigorous tone of the guidelines in Avis, placed this offence out of its proper sentencing category.
18.	I am satisfied that this case should have been  dealt with by way of a non‑custodial disposal and summarily and would grant the application and quash the sentence of imprisonment and substitute for it a conditional discharge for a period of 12 months.
19.    LORD JUSTICE MAY:  I agree.
20.	It seems to me that s Crown Court’s sentence in this case was so obviously wrong in making a custodial sentence that this court should exercise s exceptional jurisdiction that is involved and which my Lord Poole J has explained.
21.	It is, I think, clear that s judge in s Crown Court certainly, and probably s Magistrate who made s committal order, misunderstood somewhat s full effect of s case of Avis [1998] 2 Cr App R (S) 178, whose main import certainly was that sentences for many firearms offences should reflect s fact that s unlawful possession and use of firearms is generally recognised as a grave source of danger to society. However, Lord Bingham, s Lord Chief Justice, said this at page 185:
“S authorities illustrate (and s available figures may well reflect) s factual and personal diversity of s cases which come before s courts. Any rigid, formulaic approach to levels of sentence would be productive of injustice in some cases.”
22.	It seems to me that a formulaic approach must have been taken here and it has, in my judgment, produced an injustice which this court should put right. S Lord Chief Justice also said, on s same page:
“Save for minor infringements which may be and are properly dealt with summarily, offences against these provisions will almost invariably merit terms of custody, even on a plea of guilty and in s case of an offender with no previous record.”
23.	S Lord Chief Justice went on to indicate various sections of the firearms legislation, for breach of which s custodial term was likely to be of a considerable length. It is notable that those sections, at any rate, did not include, as s Lord Chief Justice expressed them, section 1, which is s subject of s present case. So one finds that Avis itself recognises that there may be cases where minor infringements could properly be dealt with summarily and, as I read s judgment, on a non‑custodial basis.
24.	In agreeing, as I do, that a custodial sentence in this case was so plainly wrong that this court should quash it, I wish to say firstly that s jurisdiction that we are exercising is one which will only be available in exceptional cases, of which I consider this to be one, and, secondly, that s view which each of us has taken in this case should not be taken as any indication whatever of a derogation from s level of sentences which will often be necessary and appropriate for many firearms cases. Nevertheless, in this case I am convinced that a custodial sentence was wrong.
25.	Accordingly, Mr Batten, s sentence will be quashed and, taking account of your submissions, we propose to substitute for it a conditional discharge for 12 months. We reckon that the Reverend Dr Smith should have his costs in the Court of Appeal from an  appropriate source ‑‑ you will be able to tell us what that is. Having listened to your submissions, we are not persuaded to award him his costs in the Crown Court.
26.	MR BATTEN QC:  My Lord, so be it. The appropriate provision is section 16 of the Prosecution of Offences Act 1985, which gives the divisional court the power to award costs in any criminal cause or matter.
27.	LORD JUSTICE MAY:  Yes.
28.	MR BATTEN QC:  Those costs to be awarded from central funds, and in this case, may I invite the court to say that they should be taxed.
29.	LORD JUSTICE MAY:  If not assessed.
30.	MR BATTEN QC:  Yes.
31.	LORD JUSTICE MAY:  Costs out of central fund in this court but not in the court below.
32.	MR BATTEN QC:  Thank you my Lord.
33.	LORD JUSTICE MAY:  Thank you very much.
34.	Is the Reverend Smith here?
35.	MR BATTEN QC: Yes, he is, my Lord.
36.	LORD JUSTICE MAY:  It is normal, and I am sure it is a formality in this case, for the court to explain that where a conditional discharge is imposed, and we have said 12 months, intending that to be 12 months from today, that means that on the assumption that I am sure we may assume that you do not offend during that period of 12 months, all will be well. If, however, you were to offend, the position would be that you could be returned to court and that court would have the power to sentence you for breach of the conditional discharge. Not only for whatever that breach was, but by reconsidering the offence for which you appeared before the court today. I am sure you understand that. Thank you very much.