Sgt Nightingale – Is his sentence too short?

 Background information regarding Sgt Nightingale’s case can be found here.

Conviction appeal

Simon McKay, Sgt Nightingale’s solicitor, was quoted in The Telegraph as having said ‘I consider the sentence to be excessive and the basis of the guilty plea unsafe.’

This is interesting as there is currently little information in the press and the transcript that suggests a basis for vacating Sgt Nightingale’s plea of guilty and  requesting a retrial, or even a straight acquittal.

The wording of the section prohibits the possession of ‘any firearm which either has a barrel less than 30 centimeters in length or is less than 60 centimeters in length overall, other than an air weapon’. There is no suggestion that the 9mm Glock does not fall within this description. This is the ‘simple’ offence of possession, as distinct from the more serious offences under ss 16 and 16A of possession with intent to injury or cause fear of violence, and so it is not necessary to prove that Sgt Nightingale intended to do anything with the weapon, merely that he had it in his possession and knew about it.

On any view, a conviction of possession of a prohibited firearm is a serious offence. The reasons why it is a serious offence are self-evident; firearms are dangerous weapons and despite his training and lack of intention to use the weapon, it is unacceptable for someone to possess such a dangerous weapon.

The issue is not simply, is Sgt Nightingale guilty of the offence (on the information we have, it would appear so). In fact, it is necessary to examine the reasons why the offence (in its ‘simple’ form – with no intent to use the firearm).

Image the public reaction if Sgt Nightingale’s house had been burgled, and his wardrobe (where the weapon was kept) was searched. The weapon and ammunition may then be in the hands of individuals who have no experience of handling firearms. Imagine the burglary was committed by a 16 year old. Would the public be content with such a deadly weapon being in the hands of a 16-year-old with no training? Imagine now that the 16-year-old committed the burglary to fuel his drug habit. Are we content for the weapon to be in the hands of a 16-year-old drug addict with no weapons training and who has shown himself to be willing to commit serious offences? Of course not. It follows that, notwithstanding how trustworthy Sgt Nightingale is, and how careful he might have been (he was not) it can never be acceptable for him to possess a prohibited weapon.

If you remain unconvinced by that, then consider the following question. Would you agree that the law of theft applies to your or I stealing a loaf of bread, just as it applies to MPs fiddling their expenses? Of course you do. The Firearms Act must then apply to Sgt Nightingale.

It is important to note that all the factors being cited by the press as to why this is such a betrayal are irrelevant when considering the conviction; is he guilty of the offence? On the information we have, the answer is yes. Factors such as how Sgt Nightingale came to possess the weapon, his distinguished military career and the lack of intent to use the weapon for any sinister purpose really come into play when assessing the appropriate sentence.

The grounds of appeal will certainly make for interesting reading.

Sentence appeal

The sentence appeal raises different issues. Each individual will have their own idea of what is ‘right’ for a particular offence. I don’t think that Trenton Oldfield should have received 6 months for public nuisance. HHJ Molyneux clearly did.

Many have said that they feel Sgt Nightingale should be released immediately. This could be achieved by suspending the sentence, or by replacing it with a (service equivalent) non-custodial sentence. For a sentence to be suspended, it must be below 12 months in length and be deemed appropriate. Sgt Nightingale’s 18-month sentence was therefore incapable of being suspended.

So what is the appropriate punishment? Parliament has decreed that, absent exceptional circumstances, a minimum sentence of 5 years must be imposed. I don’t think there are many, if any, who wouldn’t argue that Sgt Nightingale’s case is a prime example of where exceptional circumstances apply. His is not the type of offence the minimum sentence provisions were designed to apply to. There is of course the deterrent element present in a minimum sentence of such length, but that applies to those seeking to possess weapons for criminal purposes.

Why are the public up in arms over the sentence? Of course we have a great debt to pay to Sgt Nightingale, just as we do to all those who serve in the armed forces. But does that extend to the point of accepting what is, on any view, serious criminal behaviour? Of course there is mitigation but for the reasons outlined about (see the conviction appeal paras), this is an offence which cannot go unpunished. The offence is a very serious one; it is one for which the court must consider the issue of dangerousness (whether Sgt Nightingale ought to have been subject to a sentence from which he may never be released).

In my view, Sgt Nightingale has exercised extremely poor judgement and, notwithstanding his military career, deserves to be punished.

It is also my view that not only should the possession of firearms be discouraged (hence the minimum sentence provisions) but that this case should serve as a warning to other soldiers (and I am sure there are many) who have brought war trophies back from active service. It is unacceptable and members of the services should know that if they decide to break the law, their service record (though relevant) will not act as a shield from the full force of the law.

So, should there be a deterrent element to Sgt Nightingale’s sentence? I would say absolutely yes. This is not a case about deterring the possession of firearms on the streets of the Britain. It is about deterring members of the armed forces from bringing prohibited weapons back to the UK.

In this case, Sgt Nightingale appears to be, excluding this incident, a fine soldier who has dedicated much of his life to the country. That is of course to be applauded (and indeed was recognised by the fact that he was not dismissed or reduced to ranks). The fear is not simply what might have happened to the weapon in Sgt Nightingale’s hands, but the potential consequences both in this case and in others like it. Whilst Sgt Nightingale may not have intended upon using the weapon, another solider may do. Another soldier may suffer from PTSD and unable to think clearly and responsibly. Such a situation should be actively discouraged.

Sgt Nightingale claimed he intended to have the weapon deactivated, whilst some may see this as mitigation, I view it as aggravation; it demonstrates that he recognised that he should not have had the weapon, that it was dangerous, and that he knew of the standard procedure for deactivating such weapons. In my view, he acted irresponsibly, dishonestly and dangerously.

I am of the firm opinion that a Suspended Sentence would send out entirely the wrong message; this is a serious offence which requires for a serious sentence of custody. In my view, the court was right not to reduce him to ranks or dismiss him entirely, as a) he is very unlikely to commit a similar offence again, b) as the court noted, he may be able to return to active service and c) a custodial sentence is punishment enough, without the potentially crippling financial implications to his service pension if he is dismissed.

The appropriate sentence is one which would reflect his exemplary character, his lack of intent to use the weapon, and the exceptional circumstances surrounding his possession and how it came to be in the UK. It would also reflect his extremely poor judgement, the seriousness of the offence, the fact that there was also a quantity of ammunition, and that the weapon was unsecured. Absent the exceptional circumstances, Sgt Nightingale would have received at least 5 years, for a very serious offence. Isn’t the appropriate sentence in his case in the order of 2½ years?

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25 thoughts on “Sgt Nightingale – Is his sentence too short?

  1. Lyndon Harris Post author

    I dont really recall much of the press coverage from that case. I remember his explanation was not believed by the police. What’s your view on the Nightingale sentence?

    Reply
    1. kris

      Here is a copy of a blog on the Paul Clarke matter with links http://www.stokenewingtonchambers.co.uk/the-no-intent-crimes-of-strict-liability-and-paul-clarke/

      I haven’t read the transcript from Sgt Nightingale’s CM – I’ve only read the Telegraph account- so I should probably shut up!

      From what I understand of the facts as presented in the Telegraph, it seems a bit harsh to bring proceedings when the Sgt was unaware of what had been packed – indeed, that he did not pack it himself.

      I understand the matter is strict liability. I also understand that Paul Clarke ran a different exceptional circumstances argument.

      My complaint is that I don’t think Mr Clarke’s exceptional circumstances were as meritorious as Sgt Nightingale’s.

      Reply
  2. Dan Bunting

    Isn’t exceptional circumstances pretty meaningless as anything is exceptional if you want it to be? Given that the s5 offence is absolute liability, it seems to me that the Courts should be very ready to find them.

    Reply
  3. kris

    “But Mr Winter, if anybody had gained access to the accommodation, it would not have taken them more than 30 seconds to spot the ammunition in a clear Perspex box and find the gun”.

    Whoops.

    Reply
  4. Dan Bunting

    Quite. I’m not sure if all the people campaigning against the sentence have actually read the proceedings. I know it’s unlikely that newspapers would comment without the full facts, but there’s a first time for everything …

    Reply
    1. Lyndon Harris Post author

      This is the problem with pressure from the public. Reading the Sun and the Telegraph you would have no idea about many of the aggravating factors. Taking a simplistic view of such a complex issue is always going to result in the public feeling falling on one side or the other and rarely in the middle (where the truth usually lies).

      Reply
  5. Matthew Bolt

    The sentence is too short for a civilian yes but half the purpose of a separate military justice system is to consider the needs of the military. At a time when most of NATO is operating with their Special Forces at full stretch the proper sentence would have been one that allowed Sgt. Nightingale to soldier on before his skills atrophy. If not he might as well have been tried by a civilian court.

    That said a potentially useful non legal source is George V who revoked the punishment of forfeiture of the Victoria Cross. His reasoning was that even if convicted of murder a VC could wear his medal on the gallows. Crime doesn’t erase gallantry but nor does the gallantry excuse the crime.

    Reply
    1. Lyndon Harris Post author

      There has to be deference to the military courts, I accept that because a military court is in a far better position to assess the particular facts of a case concerning the armed forces. However, when members of the forces commit criminal offences, their employment cannot preclude them from receiving an appropriate sentence. An appropriate sentence comes from weighing up all the factors, considering any case law and applying the relevant legislation. In my view that results in a custodial sentence in this case.

      Interesting about the VC!

      Reply
  6. John Allman

    Is this the stupid law against “hand guns” that forces the British pistol shooting team to practise in Switzerland? It’s a victimless crime that was committed, no matter how elaborate the fantasies about teenaged, drug-addicted burglars.

    Reply
    1. Lyndon Harris Post author

      Thanks for your comment.

      Would you agree it is important to discourage all people, soldiers included, from possessing prohibited weapons? Because a non-custodial sentence would send out the message that soldiers are subject to a different law to civilians. I think that would be dangerous and wrong.

      Reply
      1. John Allman

        I think it was a cruel, pointless and illiberal law when it was passed. It will have led to the loss of licensed hand guns that had been owned by law-abiding citizens who had owned hand guns when the ban came in, and who promptly had to give up their hobbies and get rid of their guns.

        Because of the stupid law,nowadays the only people likely to possess handguns will tend to be hardcore criminals, whose hand guns weren’t even licensed in the freer days before it became impossible to licence hand guns. Very occasionally people may come to have hand guns in their possession more-or-less accidentally, without realising it, or without realising that they are technically committing a new criminal offence, from the time they find or remember having a handgun in the attic, until the time the throw it in the canal (say).

        Yes, by all means “discourage” possession of hand guns, by an advertising campaign, of the same type as is used to encourage forgetful people to buy TV licences, or to nag consumers to replace old-fashioned gas heaters that give off carbon monoxide, or householders not to let the batteries in their smoke alarms go flat. The advertising should remind the public that if one finds an old pistol when clearing out the garage, one had better throw it in the canal pronto, and not tell anybody.

        But why “discourage” possession of hand guns by (as the phrase goes) “making an example of” some random victim of the new law, who obviously had almost completely forgotten about the existence of his weapon, and didn’t give a moment’s thought as to whether it might be an offence for him to have it, punishing him for the omission to dump the gun before he got caught with it, in such a manner that, if it were found, the police could never find out the had once had it..

      2. Dan Bunting

        For what it’s worth, I agree with you. I’ve got no interest in guns, but there is a good argument on liberal principles that the laws on possession are too tight (if there is any intent to use it for illegal purposes then that is a different matter of course).

        The mandatory nature of the sentence is compounded by the fact that no ‘mens rea’ is required. This means that you don’t need to know that you possess a firearm to be guilty. The case of Deyemi [2007] EWCA Crim 2060 exemplifies this : here it was held that the fact that somebody has something that not only do they not know is a prohibited weapon, they think on reasonable grounds that it is not a prohibited weapon, is still guilty. Silly in my view.

    2. Dan Bunting

      That’s the one! It’s the 1997 Act as implemented by this SI.

      My own view is that the firearms laws are too harsh in this country and that simple possession should be a lot less serious that it is treated. I do however agree with Lyndon that on the law as it is, the sentence is too low.

      Reply
  7. Sarah

    I’m going to raise a minor point rather than the obvious…

    “I would say absolutely yes. This is not a case about deterring the possession of firearms on the streets of the Britain. It is about deterring members of the armed forces from bringing prohibited weapons back to the UK.”

    Is it not deterring both? I understand that primarily it’s discouraging the armed forces, but surely if the general public see the law punishing people trained in handling such equipment then for any old Tom, Dick or Harry to possess one will result in law intervention?

    Reply
    1. Lyndon Harris Post author

      Yes absolutely. Of course it is a stronger message to the public if Sgt Nightingale receives a stern sentence, but you raise a valid point-If the public see possession of firearms will not be tolerated by any, even those with distinguished military careers, then it also acts as a deterrent to them.

      Reply
  8. R Frank Wilson

    Firstly, speaking as ‘a member of the public’ who supports the release of Sgt. Nightingale, I can assure Mr Bunting that I and many others who are part of the campaign have read the transcript of the proceedings – indeed a link to them has been posted on the ‘free Danny Nightingale’ facebook page. Secondly, although I’m not a lawyer, I am an ex-probation officer well-used to Court proceedings and know full well that, despite the impression given here to the contrary, there is more to the consideration of sentencing and, indeed, the process of appeal, than the ‘strict’ interpretation of the Law would suggest.

    Reply
  9. Lyndon Harris Post author

    Thanks for your comment. What is your view of the sentence (and conviction if relevant)?

    I’d also be interested to hear more about there being “more to the consideration of sentencing and, indeed, the process of appeal, than the ‘strict’ interpretation of the Law would suggest.” Do you think the article is misleading?

    As far as I am concerned, when examining the statute (setting out the offence), the case law (examination of appropriate sentence for this offence), the particular facts of this offence and Sgt Nightingale’s background, he has still committed a serious offence for which he must be punished with a lengthy custodial sentence.

    Part of that sentence has to include a deterrent element to other soliders. I heard on Radio 2 this morning that many supporters of Sgt Nightingale say that bringing home war trophies is ‘just what some soldiers do’. I think that is a poor attempt at justifying what still remains a serious criminal offence. What if beating up defendants is ‘just what some police do’? Is that not to be discouraged?

    Reply
  10. R Frank Wilson

    No, I don’t think the article is misleading but I do think that law-based discussions like this do tend to give the impression that there is only one way of interpreting the facts of any case according to the law applied to it rather than emphasizing that law is, in fact, a flexible tool cleverly designed (in this country anyway) to bring about Justice.
    Leading on from that, the impression I have from the discussion by the many people who support the release of Sgt. Nightingale is that insufficient weight has been given to the issue of this soldier’s complex memory problems in determining culpability and, indeed, insufficient weight given to those factors which have determined his good character. Also, as I understand it, (to quote this blog) ‘the Court Martial may, if necessary depart from the usual sentencing practices and indeed the Sentencing Guidelines for ‘Service reasons’. I am not clear that this was done.
    As I say, I am not a lawyer, but I know from my own practice that my Court reports sometimes had drastic effects on sentencing (resulting in both longer and shorter prison sentences, for instance) despite assurances from, variously, the Defence and Prosecution that my recommendations would not stand.

    Reply
  11. Lyndon Harris Post author

    I think that is an interesting point to raise; I would agree that in addition to the necessary legal considerations, it is of course important to also conduct a sort of ‘common sense’ check; you are right that the law is flexible and should be able to deal with the facts of any case.

    Re Nightingale, they can depart from normal practice, however I would say in this case the circumstances dont allow them to depart from normal practice more than they already have done.

    I would ask the following: in finding exceptional circumstances and sentencing him to 18 months, have the Court Martial not demonstrated the flexibility of the law and exercised their discretion, reflected the special facts of the case?

    Reply
  12. R Frank Wilson

    I guess the answer to your question will be contained in the outcome of the two Appeal hearings.

    Reply
    1. Lyndon Harris Post author

      Unfortunately I don’t think that is so. I think re sentence he’ll be out next Thursday, reduced to 12 months and suspended. Re conviction, I think it is more difficult. But don’t underestimate the power of public outrage.

      Reply
  13. Wolf

    From my reading of the transcript, the gun itself was not the only issue. The presence of the ammunition was mentioned specifically in the judges summary before giving the sentence. The judge felt that whether Sgt Nightingale’s recollection of getting the gun was fabricated by his condition or a genuine recollection was irrelevent. At the point of moving accomodation, he did remember having the items, he just didn’t think it important enough to deal with them properly. The judge felt that he knowingly left them in his accomodation, and sentenced him on that basis.

    Reply
    1. Lyndon Harris Post author

      Thanks. Useful comments. What do you think about the reduction in sentence?

      Reply
  14. Pingback: Normal service resumed? 5 years for Robert Downes | UK Criminal Law Blog

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