Why it doesn’t matter if Sgt Nightingale ‘forgot’ he had the weapon

Background on Sgt Nightingale’s case can be found here.

Very briefly, Sgt Nightingale was found to be in possession of a prohibited weapon. He claimed that due to an incident in which he suffered some mental trauma, he was unable to remember that he was in possession of the weapon.

Many articles, radio phone-ins, Tweets, discussion posts and conversations down the pub have lambasted the Court Martial at Sgt Nightingale’s conviction. “How can he be guilty if he didn’t know he had it?!”

Here’s how.

Possession

Possession of a prohibited item has been discussed in numerous cases over the years.

In R v McNamara (1988) 87 Cr. App. R 246, the LCJ said:

First of all a man does not have possession of something which has been put in his pocket or into his house without his knowledge. In other words something which is “planted” on him, to use the current vulgarism.

Secondly, a mere mistake as to the quality of a thing under the defendant’s control is not enough to prevent him from being in possession. For instance, if a man is in possession of heroin, believing it to be cannabis or believing it perhaps to be asprin.

Thirdly, if the defendant believes that the thing is of a wholly different nature from that which in fact it is, then the result, to use the words of Lord Pearce, would be otherwise. Fourthly, in the case of a container or a box, the defendant’s possession of the box leads to the strong inference that he is in possession of the contents or whatsoever it is inside the box. But if the contents are quite different in kind from what he believed, he is not in possession of it.”

Whilst this doesn’t go to the issue in Sgt Nightingale’s case, it may help illustrate the attitude that the law takes to the subject of possession.

Strict liability – is there a need to prove knowledge?

R v Bradish (1990) 90 Cr App R 271

Auld J said as follows at page 279:

“We start with the presumption of interpretation that Parliament intends there to be a mental element in offences of a truly criminal nature. However that presumption may be rebutted.

The offence created by section 5 is one of strict liability, at least in the absence of a defence of ignorance, may be summarised as follows:

…the words of the section themselves, “a person commits an offence if, without …. authority …. he has in his possession ….” any firearm, weapon or ammunition of the type defined, makes it plain that it is an offence of strict ordinary liability.”

The Court continued to examine the support for that proposition.

R v Deyemi and Edwards 2007 EWCA Crim 2060

The appellants pleaded to possession of a prohibited weapon (Firearms Act 1968 s 5(1)(b)). They did so following a ruling by the Judge that the offence was one of strict liability (where liability arises without proof of carelessness, knowledge, or intent-a good example is the offence of speeding).

The appellants account was that they thought that the electrical stun-gun that they possessed was in fact a torch, and so they could not be guilty of the possession of a prohibited weapon.

The Court discussed case law on the meaning of ‘possession’ and the issue of lack of knowledge of possession of a prohibited item. The question was whether an offence under section 5 was one of strict liability:

“The prosecution, in order to establish the offence, merely has to prove possession of the object in question, and the fact that the object is a firearm or other weapon prohibited by the 1968 Act; it does not have to prove that the defendant either knew or could have known it was a weapon prohibited by the 1968 Act.

It follows that, in our judgment, section 5 of the 1968 Act imposes an “absolute” offence in the way we have described; the judge’s ruling was accordingly correct.”

Possession of drugs

Analogies with the Misuse of Drugs Act 1971 are of limited use; there is a provision which enables a defendant to obtain an acquittal for what can be described as ‘innocent possession’. There is no such provision in the Firearms Act.

Conclusion

In Sgt Nightingale’s case, the situation would appear to be as follows. Notwithstanding the complications arising from the fact that he pleaded guilty and is now challenging that conviction, the absence of a basis of plea, and the medical issue of whether he ‘forgot’ he was in possession, it is sufficient for the prosecution to show that Sgt Nightingale was in possession of the 9mm Glock. He admitted so in his plea and it has not been argued that he was not in possession of it. Irrespective of whether he knew about it or not (the Court Martial did not believe that he had no knowledge whatsoever), he is guilty of the offence and the issue of whether he knew or not is simply only relevant to the appropriate sentence (as it increases or decreases the seriousness of the offence).

Therefore, describe it how you will – ‘technical possession’, ‘innocent possession’ – it remains that Sgt Nightingale was in possession of the firearm and so, appears to be guilty of the offence.

Conviction appeal

You may have seen Philip Hammond (Defence Secretary) asking the Attorney-General Dominic Grieve to ‘review Sgt Nightingale’s case’, questioning whether it was in the public interest to prosecute (one of the requirements for a prosecution to be brought).

The Attorney-General issued a statement saying that it would be inappropriate for him to do so. The conviction and sentence are a matter for the Court Martial Appeal Court.

It may be that the appeal against conviction is on the basis that it was an abuse of process to prosecute Sgt Nightingale in the first place as the prosecution was not in the public interest. It remains to be seen whether that argument will be successful.

I would be surprised if it was however; is it not in the public interest to prosecute serious criminal offences, irrespective of who they are or what they have given to the country?

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