Rough Justice

24
1454

Kenneth Roy

A 53-year-old Dundee woman is in the early days of a five-year prison term. Assuming she serves half her sentence, she will released just before Christmas 2012. The case of Gail Cochrane has attracted little or no comment; the only fact that seemed to interest the mainstream media in their reporting of the case was that Mrs Cochrane happens to be a grandmother. But her detention in Cornton Vale prison for the next two and a half years deserves to be more closely scrutinised – for its sheer absurdity if nothing else.

Kenneth Roy

A 53-year-old Dundee woman is in the early days of a five-year prison term. Assuming she serves half her sentence, she will released just before Christmas 2012. The case of Gail Cochrane has attracted little or no comment; the only fact that seemed to interest the mainstream media in their reporting of the case was that Mrs Cochrane happens to be a grandmother. But her detention in Cornton Vale prison for the next two and a half years deserves to be more closely scrutinised – for its sheer absurdity if nothing else. 

    Mrs Cochrane pleaded guilty at the High Court in Edinburgh to possession of a firearm: a Browning pistol. She had not acquired it illegally, there was no evidence that she had ever taken it outside her own house, it was unloaded, and she had no ammunition for it. Its existence would still be known only to herself and her immediate family had it not been for her son’s failure to turn up for a court appearance in the summer of last year. The police appeared at the door with an arrest warrant and Mrs Cochrane gave them permission to search the house for the missing accused. It must have been a fairly extensive search, for the pistol was found under a mattress. It is unclear whether the police expected to find the accused under the mattress.
     Mrs Cochrane explained that the gun originally belonged to her father, a Royal Navy serviceman. After he died she inherited the gun and kept it in the family home for 29 years until the day of her arrest. She regarded it as an heirloom of sentimental value. She said she never contemplated that she might be committing a serious crime by having it in her possession without a licence; she had not considered the consequences for herself. A firearms expert who examined the weapon reported that it was a Czech-made pistol dating back to about 1927 and that, although it was in poor condition with a faulty safety catch and a faulty trigger mechanism, it was still in working order. He described it as ‘a trophy of war’.
     When the case came to court a year later, the presiding judge, Lady Smith, said that unless she found ‘exceptional circumstances’ for Mrs Cochrane’s possession of the weapon she had no alternative but to sentence her to five years’ imprisonment, the mandatory minimum term for illegal possession. Mrs Cochrane’s counsel argued that, if there was a category of individuals who were most unlikely to commit an offence involving a gun, his client ‘would fall squarely into it’. Lady Smith took a stricter view. She said she was not satisfied that a ‘reasonable explanation’ had been put forward for Mrs Cochrane having the gun and ruled that there were no exceptional circumstasnces. Down she went for the full whack.

It is true that the scope of ‘exceptional circumstances’ is fairly restricted. The stay-out-of-jail clause is mainly intended to protect gun-owners who have genuinely forgotten to renew their licence. That would not have helped Mrs Cochrane, who offered no such defence; neither was her state of abject ignorance a defence. Lady Smith appears to have chosen to interpret ‘exceptional circumstances’ in a relatively narrow way. Just how narrow becomes obvious by reference to similar cases south of the border.
     A few months before Mrs Cochrane’s arrest, the Liberal Democrats obtained figures showing that, in England and Wales, only half of the defendants convicted of possession of illegal firearms were receiving the mandatory five-year minimum. How so? The ‘exceptional circumstances’ rejected by Lady Smith are simply more liberally interpreted by many of her judicial colleagues, who routinely invoke this clause to enable them to impose more lenient sentences. ‘Rightly so,’ said the former Lib Dem home affairs spokesman, Chris Huhne, ‘because there is a wide range of circumstances that judges should take into account’. He went on to point out that mandatory minimum sentences are largely the outcome of ‘macho posturing’ by politicians who want to appear to be tough on crime, among them the former home secretary, Jack Straw.
     Most judges intensely dislike mandatory sentences. Every case is different, yet a mandatory term puts all cases in the same straitjacket, limiting judicial power. If widespread latitude is being shown south of the border, the case of Mrs Cochrane suggests that this discretionary spirit does not extend to the High Court in Scotland.
     What would have happened had she decided at any stage in the last 29 years to hand in her father’s pistol to the police? A recent case in England does not inspire confidence that Mrs Cochrane would necessarily have been thanked for her law-abiding action. A former soldier in Surrey who found a discarded shotgun in a black bin-liner at the bottom of his garden telephoned the local police and asked for an appointment. When he duly turned up with the shotgun, explaining the circumstances in which he had discovered it, he was told that he faced five years in prison for illegal possession of a firearm in Reigate police station and was taken to the cells. In that case, common sense prevailed up to a point. He was eventually given a suspended sentence. But why should the soldier have faced prosecution in the first place? If the law on firearms is not an ass, it is certainly a mess.

Mrs Cochrane may be a granny, but she is no Snow White. She has one previous conviction, for assault, dating back to 2001. It is possible that her form, and the fact that the gun was found under a mattress, a rather strange place to keep it, weighed heavily in Lady Smith’s mind. Perhaps in the case of Gail Cochrane a short prison sentence was appropriate. But five years? This is the length of term given to serious drug pushers, major fraudsters and motorists who cause death by reckless driving. Who is the victim of Mrs Cochrane’s crime? There is none. For 29 years there had been none. And the chances of there ever being one, had the pistol never been discovered under the mattress, seem remote.
     I hope that she is released on bail pending an appeal and that the appeal court, taking a more a generous view of exceptional circumstances, imposes a sentence more appropriate to the offence. Meanwhile, some guidance from the authorities would be useful. What is a person with an illegal firearm to do? Hand it into the police and risk a five-year prison sentence or bury it in the garden? Whatever the answer, it’s an odd way to run a justice system.

Read Kenneth Roy in the Scottish Review.