A cautionary tale of the risks that heavy goods vehicle drivers run in carrying stun guns for self-defence
Blake Morgan's Driver Defence team is the leading team of specialist road traffic lawyers in the South of England. We have been recognised by legal directory Chambers and Partners: A Client's Guide to the Legal Profession 2017 as a Band 1 firm in this field. Our team of specialist lawyers travel all the country to help motorists facing a driving ban or having penalty points put on their licence. Our work has taken us to Magistrates and Crown Courts all over the country. Many of our cases have reached the Higher Courts.
Blake Morgan's Driver Defence team was consulted by D, a Slovakian heavy goods vehicle ("HGV") driver, who had been arrested in Hull following a search of his HGV upon his entering the UK.
D was found to be in possession of a torch which also constituted a handheld device commonly called a "stun gun". This type of item is designed for self-defence and enables the person in possession to stun, for instance, an assailant by way of an electric shock. This type of device is categorised in the UK as a prohibited weapon within section 5(1)(b) of the Firearms Act 1968 ("the 1968 Act"). Furthermore, a stun gun disguised as a torch, also comes within section 5(1A)(a) as a "firearm which is disguised as another object" having regard to the inclusion of "any prohibited weapon" in the definition of a firearm in section 57(1)(a) of the 1968 Act.
Following D's arrest and detention he was interviewed under caution. At that stage, D was advised and assisted by the duty solicitor. D explained during the course of the interview under caution that it was not illegal in Slovakia to carry such an item and, indeed, it was common for Eastern European heavy goods vehicle drivers to carry such items in order to protect themselves as there had been many reports of incidents between lorry drivers and illegal immigrants at the Calais ferry port. D was bailed to return to the police station at a later date.
How our Driver Defence team helped
Following D's release from custody, he made contact with Blake Morgan. Barry Culshaw, a consultant with the Driver Defence team and a specialist in criminal law, road traffic law and road transport matters had conduct of the case throughout. Barry made contact with the National Crime Agency ("NCA") who had conduct of the investigation. Barry was informed that the advice of the Crown Prosecution Service ("CPS") had been sought and when D surrendered to his bail it was anticipated that D would face charges for contravening the firearms legislation.
D was unable to surrender to his bail due to ill health. In the meantime, the duty solicitor who had assisted him at the initial interview under caution wrote to D advising that, if charged, he would have to confess his guilt in court as there was no defence. D was also informed by the duty solicitor that he could expect to be sentenced to a five year term of immediate imprisonment. Not surprisingly, this revelation caused D even more stress and exacerbated his ill health.
Due to the health considerations D's bail date was put back. This enabled Barry to make detailed representations to the NCA. An offence contrary to section 5(1)(b) of the 1968 Act is punishable with a maximum sentence of 10 years' imprisonment. However, if convicted of a section 5(1A)(a) offence, there is a minimum mandatory sentence of five years' imprisonment by virtue of section 51A of the 1968 Act.
Barry did, however, consider that the duty solicitor had failed to take account of a proviso in section 51A(2) of the 1968 Act which enables a court to depart from the required minimum term of imprisonment if the court is of the opinion that "there are exceptional circumstances relating to the offence or to the offender which justify" not imposing the minimum term.
Barry's research of the case law revealed that as recently as 2014 the Court of Criminal Appeal had upheld an appeal by a Bulgarian lorry driver who had bought a stun gun, which also operated as a torch. In Bulgaria, possession of such an item was also legal. In that case, the court substituted a suspended sentence of imprisonment. That reported case had a striking similarity to that of D as the Bulgarian lorry driver had been ignorant of the fact that possession of the particular item was illegal.
The appeal court held that in such circumstances ignorance was capable of being an "exceptional circumstance" in allowing the court to depart from the statutory minimum mandatory sentence of five years' immediate imprisonment.
Barry arranged to make detailed representations to the NCA which urged consideration that it was not in the public interest in all the circumstances to proceed against D. Medical evidence was also submitted in support of the representations. The NCA agreed to discuss the situation with the CPS and D's bail date was put back yet again to a later date. Eventually, the NCA responded to the representations and confirmed that due to D's ongoing poor health, his inability to continue in his employment as a long distance lorry driver or to travel long distances, it was not in the public interest to proceed with the case.
D was informed that a warning letter would be issued in due course in relation to the incident which would outline the action that could be taken against him should he reoffend on any future visits to the UK.
This outcome came as a great relief to D who had been facing the prospect of a minimum term of imprisonment of five years. D is 46 years of age and a man of good character with an unblemished record. This case is a timely reminder and / or warning to those HGV drivers entering the UK of the implications of carrying items of this nature for the purposes of self-defence.
The minimum mandatory sentence of immediate imprisonment may be viewed as severe but clearly is intended by Parliament to operate as a deterrent. This case also demonstrates the need to seek specialist legal advice in regard to matters of this nature which although arising out of a road haulage transport operation, did involve the need for an experienced criminal law specialist to advise comprehensively on the 1968 Act implications of the case. The case also demonstrates that even when an offence is made out, it is always of fundamental importance to raise with the prosecuting agency public interest considerations that may arise in the particular circumstances of a case.