Between a void and a hard place

You are Paul Clarke. You live in a small town in England. You’ve had a run-in or two with the law, but nothing serious. One day, you find a black bag a the end of the garden. You think it’s a bag of rubbish (garbage, for you non-Brits). You open it and inside find a shotgun. Being civic minded (plus a little lazy), you take the gun to the police a few days later and turn it in.

Fast forward a number of months. Where do you think you are now, Paul?

Awaiting sentencing for possession of a shotgun Sentenced to 12 months suspended, that’s where. An offence which carries a mandatory-minimum penalty of 5 years. Jack of Kent, a British blougger, has written extensively on this case and it’s well worth the read (via the deadly Charon). As with all strict liability crimes and crimes that involve mandatory-minimum sentences, the befuddling question here is the exercise of discretion to prosecute Mr. Clarke. While the police were unwilling to comment on the case, Jack of Kent was able to enter into a lengthy e-mail exchange with the Crown Prosecution Service, who explained their decision to prosecute thusly:

Paul Clarke claimed that he found the shot gun in his garden and decided to bring it to the police station. Evidence showed that he was in possession of the gun and the cartridges for some days earlier and that at that time he did not try to contact the police, for them to collect the weapon. He could not explain why he waited some days before bringing the gun to the police station and why he did not contacted the police for them to come and collect the gun.

So it seems that the entire crux of their decision to prosecute was based on the lack of a “satisfactory” explanation from Mr. Clarke as to how he got the gun and why he waited two days to turn it in. Nevermind the fact that the same police department distributed a leaflet encouraging people who find guns to bring it to the police station.

Perhaps an adroit bobby might have thought to test the gun to see if it was linked to any crimes, but it doesn’t seem that occurred. So all we’re left with is the tale of Mr. Clarke, that he found the gun. Unfortunately, as with all per se crimes, the jury had no choice but to convict.

There are two points in this saga that have raised the hackles of the genial British populace: one that Mr. Clarke is required to receive 5 years in jail for a seemingly civic act and two, the implications this might have for all in general.

My rants on mandatory-minimum sentences are well known, so I will leave that be here. It is the second, of course, that is far more interesting. The implications of not criminalizing, but actually prosecuting behavior that on its face is not criminal.

As noted correctly by the British blouggerati, prosecuting Mr. Clarke would really be counterproductive to the stated police intention of taking guns off the streets. Who, in their right mind, would bring a gun into the police station if they’re likely to be charged for possession of it. Not even those crazy Brits.

Whatever happens to Mr. Clarke will happen and I do hope that he will not be sentenced to any jail time As per CharonQC, Mr. Clarke was sentenced to 12 months suspended via a provision for exceptional circumstances. But I am still curious as to the defence mounted by his barrister/solicitor/lawyerperson. The first thing that occurred to me, is whether this offence might be void for vagueness here in these United States.

VfV is a constitutional law doctrine that renders statutes unenforceable in particular circumstances:

To demonstrate that [a statute] is unconstitutionally vague as applied … the [defendant]… must … demonstrate beyond a reasonable doubt that [he] had inadequate notice of what was prohibited or that [he was] the victim of arbitrary and discriminatory enforcement…. [T]he void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute … and the guarantee against standardless law enforcement…. If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties….

State v. Sorabella. The key here, in Mr. Clarke’s case, is whether the statute is void as applied to the facts of the particular case:

“The general rule is that the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute’s applicability to the particular facts at issue…. To do otherwise, absent the appearance that the statute in question intrudes upon fundamental guarantees, particularly first amendment freedoms, would be to put courts in the undesirable position of considering every conceivable situation which might possibly arise in the application of [the statute]…. Thus, outside the context of the first amendment, in order to challenge successfully the facial validity of a statute, a party is required to demonstrate as a threshold matter that the statute may not be applied constitutionally to the facts of [the] case.” (Internal quotation marks omitted.) State v. Lewis, 273 Conn. 509, 514-15, 871 A.2d 986 (2005). Furthermore, “[a] statute is not unconstitutional merely because a person must inquire further as to the precise reach of its prohibitions….” Packer v. Board of Education, 246 Conn. 89, 101, 717 A.2d 117 (1998). “[N]or is it necessary that a statute list the exact conduct prohibited.” Id. In light of these principles, “our fundamental inquiry is whether a person of ordinary intelligence would comprehend that the defendant’s acts were prohibited under [the pertinent provisions of our Penal Code].” (Internal quotation marks omitted.) State v. Jason B.,supra, 248 Conn. at 557, 729 A.2d 760.

Is it reasonable to assume that someone in Mr. Clarke’s position would have known that the act of turning in the shotgun to the police would result in a criminal prosecution? I think not. Additionally, the fact that the CPS engaged in an exercise of discretion in choosing to prosecute Mr. Clarke would seem to be a prime example of “standardless law enforcement”. In this particular case, they chose to prosecute Mr. Clarke merely because they found his explanation “unsatisfactory”.

As Justice Powell wrote:

Statutory language of such a standardless sweep allows policemen, prosecutors, and juries to pursue their personal predilections. Legislatures may not so abdicate their responsibilities for setting the standards of the criminal law. E. g., Papachristou v. City of Jacksonville, 405 U. S. 156, 165-169 (1972). In Gregory v. City of Chicago, 394 U. S. 111, 120 (1969), Mr. Justice Black, in a concurring opinion, voiced a concern, which we share, against entrusting lawmaking “to the moment-to-moment judgment of the policeman on his beat.” The aptness of his admonition is evident from appellant’s candid concession during oral argument before the Court of Appeals regarding state enforcement standards for that portion of the statute under which Goguen was convicted:

“[A]s counsel [for appellant] admitted, a war protestor who, while attending a rally at which it begins to rain, evidences his disrespect for the American flag by contemptuously covering himself with it in order to avoid getting wet, would be prosecuted under the Massachusetts statute. Yet a member of the American Legion who, caught in the same rainstorm while returning from an `America— Love It or Leave It’ rally, similarly uses the flag, but does so regrettably and without a contemptuous attitude, would not be prosecuted.” 471 F. 2d, at 102 (emphasis in original).

Where inherently vague statutory language permits such selective law enforcement, there is a denial of due process.

Smith v. Gougen. Indeed, in this case, Mr. Clarke seems to have been subject to the “moment-to-moment-judgment of the policeman on his beat”.

Consider alternate scenarios to drive this point home. What is one to do upon the finding of a shotgun in a local park littered with children? Is one to turn it in and risk prosecution for possession of a gun or is one to leave it there and risk prosecution for risk of injury to a minor or some variation thereof? What if there is a good samaritan law that requires one to act in a way that prevents danger to others? Quite the pickle, eh?

[Bonus: Mr. Clarke, it seems, is not the only one. There’s this fellow who’s going to jail for beating up an intruder and then this awfully sad story.]

8 thoughts on “Between a void and a hard place

  1. Paul B. Kennedy

    Unbelievable. I don’t know what’s crazier: the fact that it’s a strict liability crime, the mandatory minimum of 5 years, or the fact we’re talking about a freaking shotgun.

    It’s like being stuck in a bad Kafka novel.

  2. Charon QC

    Excellent post, Gideon

    He was sentenced to 12 months – suspended. The judge (sensibly) applied the ‘exceptional circumstances’ provision to avoid what would have been an obvious injustice.

    I still think the decision to arrest by Police and to charge by CPS was ‘strange’.

    1. Gideon Post author

      I did a brief Google news search before writing the post to see if he’d been sentenced. Didn’t turn up anything. I’ll amend the post to reflect it.

      Any idea what the defense was? Is there such a thing as void for vagueness in England?

  3. Bill Thompson

    Moral to the story: If you happen to discover a shotgun lying around on your property, immediately take it to a gun show and sell it! Presumably to a good home…

  4. Pingback: The stupidity epidemic: it’s catching | a public defender

  5. Pingback: A vex at your door: revisiting FL’s stand your ground law | a public defender

Leave a Reply