Ignorance of the Law and the Paul Clarke Case

I do not pretend to have any legal expertise and you can read the opinions of someone who has over at @jackofkent's excellent blog.

The "facts" of the case (as reported)suggest that Mr Clarke found a shotgun and ammunition in his garden, took these items to his nearest police station, and handed them in. He was then arrested, charged with possession of a gun, convicted in court, and now faces five years in prison.

Now there are many reasons to suspect that the story I summarize above may not be the whole story, and, at the very least, may be incorrect in some of the details. Certainly, anyone who knows anything about almost anything that is reported in the newspapers will attest that the newspapers have got vital details wrong. If shy ten year old Priscilla breaks the record for winning coconuts on the tombola for the third year in a row at the local fête; the local rag will report that "Three year old Priscilla broke the tombola during her ten goes on the coconut shy". I have always presumed that this sort of thing happens because journalist take notes in shorthand, forget all about the original events, and then try to construct a story (using their own imaginations) from what is essentially a list of phonemes. Sometimes, of course, there are more sinister forces at work.

But let us suppose the Paul Clarke story is entirely true and as reported, and let us suppose that the authorities, in spite of all the mitigating circumstances, decided to press ahead with a case like this and apply the full rigour of the law. Within such a thought experiment, many of the concerns that have been raised in the comments on @jackofkent's blog (which we may be able to dismiss once we know the full facts of the actual case) raise their ugly heads and do, I submit, require a reasoned response.

These comments raise a general problem with the law that is rarely discussed: the problem that most people (myself included) simply do not know what the law is (in all sorts of areas).

Recently I found a purse full of money and credit cards on the ground in a car-park in a part of town where I could reasonably expect that the purse might quickly be discovered by someone with less integrity than I pretend to. I had my mobile phone on me so I rang one of the relevant banks (there were no phone/address details for the owner inside the purse). The bank recommended that I take the purse to the local police station - which I did. But suppose I have not had my mobile phone on me and I had been stopped by the police on my way to the station. Is there a risk that I could have been charged with possession of stolen property? I have no idea. Even though I had been following the advice of a bank, banks are not reliable sources of legal advice - or even financial advice (but let's leave that to one side). Even if I had rung the police first, we all know that the police themselves are not necessarily a reliable source of correct legal advice - as in this case where (again, if the press story is to be believed) a man was instructed by the police to walk the streets with a loaded gun.

If I found what appeared to be a quantity of drugs (say) in a children's playground and did not have a phone on me and could not see any passers by, should I take the drugs and hand them in at the nearest police station or leave them in situ while attempting to report my find. I think I am right in believing that (in a case like this) I should have a defence if found in possession of drugs. But I don't know for sure.

On the subject of drugs, I recently attended a drugs awareness talk at the school my kids attend. During the course of the evening, it became apparent that the vast majority of the attendees had absolutely no idea what the laws were concerning the purchase and consumption of alcohol and tobacco by minors in different environments let alone what the laws were concerning illicit (though not necessarily illegal) drugs. And these were educated (often highly educated) grown-ups.

Given that we expect laws to serve as a deterrent and given that politicians are forever making new laws (often to "send a message") I think we, as a society, need to be aware that the messages are often not getting though. I realize that ignorance of the law could never be allowed to stand as a defence argument (for obvious reasons) but this does not absolve the people who make our laws from responsibility to use the historically unparalleled opportunities for the dissemination of information to educate people as to what the laws are and are intended to achieve.

Suppose I found a loaded gun in a park frequented by children (though deserted at the time of my discovery) and did not have my mobile phone on me. What should I do? Leave it there? Hide it? Take it to the police and rely on the good will of the CPS?

I did not know the answers to these questions before the Clarke case and I don't know them now.


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Postscript:

Allen Green ("@jackofkent") has carried out some sterling investigation and research on this story and written up his conclusions in a cracking blog entry at: Anatomy of an Injustice.

As I have also mentioned below (in a comment), pace my light-hearted digs at the quality of a great deal of journalism, I have every reason to believe that Holly Thompson's piece (which broke this story) is an accurate and balanced report of the facts available to that journalist and that that Holly Thompson (@h_thompson) is a journalist of integrity.

Drug Classification: Why David Nutt and the Government are Both Wrong

The government is clearly in the wrong because it appoints scientists to look at evidence and then ignores the evidence when it doesn't suit; in this case then shooting the messenger for good measure.

But David Nutt is wrong too. He apparently endorses the notion that there is or should be (the distinction is no always made clear) a sliding scale of criminal penalties according to the harmfulness of drugs. His only gripe with the government seems to be on the question of where certain drugs should be on this scale and the government's insistence on relying on prejudice rather than science in assessing this.

This question is discussed regularly in the media. The question of whether the sliding scale makes any sense seems never to be discussed at all.

First of all, is there currently a sliding scale of penalties corresponding to the harmfulness of drugs? No! Not in any meaningful sense.

Heroin is a class A drug (most severe penalties). Which health problems does heroin cause? Constipation! That's about it. Heroin is, of course, addictive but that does not mean that it damages the health of people who keep taking it. Street heroin does cause all sorts of health of problems, from infections to death by overdose, but these problems occur, by and large, precisely because heroin incurs criminal penalties and arrives in unknown strengths mixed with unknown substances in dirty syringes.

At the other end of the scale, solvents, which can cause all sorts of health problems (eg liver damage) are perfectly legal.

Just up into the scale at "C" are various tranquillisers and sleeping pills which, like heroin are addictive and like heroin have a high overdose potential.

The drugs that cause the most health problems of all - alcohol and tobacco - are, like solvents, not on the scale at all.

So should there be a sliding scale of penalties corresponding to the harmfulness of drugs? Could the scale be adjusted and made coherent?

I submit not.

Part of the problem is that the harms caused by drugs are simply too complex to represent meaningfully on an ABC scale. Some drugs, eg tobacco and cannabis (when smoked), have long term cumulative health effects on the respiratory system. Others, eg alcohol and heroin can easily cause the very short term health effect of sudden death by overdose. Despite this, and the fact that alcohol also causes lots of other long term health problems, moderate social drinking can be a life long pursuit for most people without them coming to very much grief. Cannabis (assuming some of the more worrying research turns out to be indicative of real effects) may be a particular danger for young people whose brains are still developing and less of a problem for older people. The question of how drugs are taken is also highly relevant. If you obtain your nicotine high from smoking cigarettes you stand a significant chance of contracting lung cancer. If you obtain your nicotine high from chewing gum. you don't.

But a more fundamental objection here concerns the very principle that criminal law should be used to inflict criminal penalties on people who do things that may cause them harm. We all know that drinking bleach and standing too near the edges of cliffs are extremely hazardous, but we don't feel that it is necessary or appropriate to make such activities illegal. It would be very foolish of me to begin smoking cigarettes or injecting myself with heroin every day, and I accept that it is quite appropriate for the state to discourage me from such pursuing such activities. In the end, however, it should be up to me - providing I don't inflict my smoke on others or sell my spare heroin to minors or whatever.

The only argument for making drugs illegal that seems to hold any (a priori) merit whatsoever, is the argument that illegality is likely to discourage use. The evidence for this contention is, however, thinner than a Rizla paper. Cannabis use is higher in the UK than it is in the Netherlands where users and retailers of the drug incur no criminal penalties and when the classification of cannabis was lowered from B to C here in the UK, use actually declined. The 30 odd year long war on drugs in the USA has seen an unremitting growth in the availability and use of all types of drugs whereas experiments with decriminalization in many countries have not led to explosions in use. Even if legalization led to a slight growth in consumption (which I doubt would be the case) there is still a strong argument in favour of legalization if this massively reduces the harm cased be drugs overall.

So, what should be done?

Nobody is suggesting that we put crack on the supermarket shelves. A well thought through programme of legalization would see clean drugs with regulated potency supplied in a controlled fashion to adults and an end to the black market and the huge international criminal enterprise it supports.

Meanwhile, we should increase the supply of accurate and believable information about the health (and other drawbacks) of all drugs - including the ones which are currently legal.

We have been remarkably successful at reducing the incidence and social acceptability of tobacco smoking in this country and we have achieved this without imprisoning a single smoker or tobacconist.

There has to be a lesson in that experience somewhere.