Neutral Citation Number:  EWCA Crim 2734
No. 2012/06589/D5 & 2012/06575/D5
IN THE COURT MARTIAL APPEAL COURT
Royal Courts of Justice
Thursday 29 November 2012
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE FULFORD
MR JUSTICE BEAN
R E G I N A
– v –
DANNY HAROLD NIGHTINGALE
Mr W Clegg QC Mr S McKay appeared on behalf of the Applicant
Mr D Perry QC and Colonel Barnett appeared on behalf of the Crown
J U D G M E N T
(As Approved by the Court)
Thursday 29 November 2012
THE LORD CHIEF JUSTICE:
1. The applicant, Danny Harold Nightingale, is a Sergeant serving in the Special Air Service. He was born in 1975. He has served in the Army for many years. He is held in high regard by his colleagues and by the officers who have commanded him. He is a family man, a father of two young children. He has no previous convictions or cautions, although there was one military transgression recorded against him many years ago. His Commanding Officer regards his disciplinary record as exemplary and he is described as an exemplary soldier. He has seen service in theatres of war in Northern Ireland, Bosnia, Lebanon, Turkey, Iraq, Afghanistan, Syria and Libya. For much of that time, as with his other SAS colleagues, his life has been at risk.
2. On 6 November 2012 at a Court-Martial held at Bulford, before Judge McGrigor (Assistant Judge Advocate General) he pleaded guilty on re-arraignment to possession of a prohibited firearm and possession of ammunition, contrary to section 5(1)(aba) and section 5(1)(c) respectively of the Firearms Act 1968. He was sentenced to 18 months’ detention on the first charge and six months’ detention on the second charge, the sentences to run concurrently. He was not formally dismissed from the Service, but, as he was convicted of an offence included in the Queen’s Regulations, he is liable to be discharged administratively unless an application is made by his Commanding Officer that appropriate circumstances exist and that a termination of service is not merited. The length of the order for detention is not relevant to this process. He was not reduced in rank or dismissed. The Judge Advocate, in passing sentence, observed:
“On the information before us we consider that you may still, with your specialist experience, be of use to the Army in the future.”
It appears that the maximum period of detention which could be passed at court-martial would be one of two years’ detention. There is automatic remission of one-third of the sentence, as compared to the normal remission of one-half following an order of imprisonment in the Crown Court. Additional remission can also be earned on sentences over 90 days at the discretion of the Commandant. The possibility of serving a sentence in a civilian prison was one of the matters which caused Sergeant Nightingale concern when he was considering whether or not to plead guilty to the charges.
3. His application for leave to appeal against sentence has been referred to the full court by the Registrar. He also applies for leave to appeal against conviction. So far as the application for leave to appeal against conviction is concerned, we take the view that that the question is arguable and that leave should be given. Although counsel on both sides invited us to deal with the conviction appeal on the basis of the papers that we have, we are not satisfied that we have sufficient information on which to make a decision. Accordingly, we limit what we have to say to granting leave to appeal.
4. However, so far as the application for leave to appeal against sentence is concerned, we grant leave to appeal and we now deal with the appeal against sentence.
5. In relation to the appeal against sentence, we recognise that the Court-Martial is a specialist court in which considerations relating to military discipline are of considerable importance and that, sitting in this court, we should treat the Court-Martial as a specialist court exercising specific functions in this field. It is, however, also apparent that one of the more significant features of the sentencing decision in this particular Court-Martial arose from the legislation relating to minimum sentences which apply equally to military as to civilian life. The sentencing decision in this case was bedeviled by the provisions of section 51A of the Firearms Act 1968, as amended by section 287 of the Criminal Justice Act 2003. This statute requires the court to impose a minimum sentence of five years’ imprisonment on an adult offender convicted of the first offence of which Sergeant Nightingale was convicted, unless there are exceptional circumstances relating to the offence or to the offender which justify a lower sentence. If a sentence lower than this minimum term is imposed, it would be open to the Attorney General to seek an order to increase it on the basis that it is unduly lenient. Here we are invited by Mr Clegg QC, who appears on behalf of Sergeant Nightingale, to apply the age-old principle that justice should be tempered with mercy. By its very nature the statutory imposition of minimum terms is liable to distort the sentencing process, and, by definition, it tends to reduce the parameters for the exercise of judgment in an appropriate case to temper justice with mercy. As it is, on analysis the sentence imposed at the Court-Martial on Sergeant Nightingale was less than one-third of the required minimum term. In this court, effectively the final court of appeal on sentencing matters in this country, although we are still bound by the same legislative provisions, we are inevitably in a far stronger position than a single judge sitting on his own to exercise a broader judgment. That does not mean that we should or that we must do so; everything depends on the facts.
6. The prosecution began when civilian police officers searched rented accommodation which Sergeant Nightingale had shared with another officer. At the date of the search, Sergeant Nightingale was abroad, serving in Afghanistan. During the course of the search a Glock automatic pistol, in working order, was found in a hard plastic case along with three magazines suitable for use. The firearm was designed to discharge 9mm bulleted cartridges loaded from the magazines. A total amount of ammunition consisting of 122 x 9mm live rounds, 40 x 7.62mm live rounds, 50 x 90mm frangible rounds, 50 x .338 armour piercing live rounds, 2 x .308 live rounds, and 74 x 5.56mm live rounds were found. The Glock pistol and ammunition were found in a wardrobe and the remaining ammunition in a plastic box under the bed.
7. Contrary to some of the publicity which conveys a false impression to think of this as a case involving a single trophy weapon kept by a veteran of many campaigns, the Glock was a modern, highly-dangerous revolver in full working order, with ammunition for use in it. There was, as we have indicated, a substantial amount of additional ammunition which, in the wrong hands, was capable of wreaking havoc. It is clear that the firearms (as we shall describe the pistol and the entire hoard of ammunition compendiously) had come into Sergeant Nightingale’s possession lawfully from two different types of source on different occasions. We emphasise, as we did during the course of the argument, that enquiries made during the course of the investigation revealed not the slightest shred of evidence that it was his intention that they should be used for any criminal purpose. Nothing was further from his mind. But it was for that reason that the case was transferred from the civilian police to be dealt with within the military justice system.
8. The Glock pistol was not issued to Sergeant Nightingale by his unit, nor provided for him for use in the course of his duties in Iraq in 2007. In that period of his service he was part of an SAS squadron fighting Al Qaeda suicide bombers. He and his colleague were engaged in desperately serious operations against a ruthless enemy. According to the evidence the tour of duty was relentless, exhausting and dangerous. Throughout, Sergeant Nightingale was, and remained, a quiet, tough, calm, stalwart and stoical soldier who needed neither praise nor thanks.
9. Shortly before the end of his tour in Iraq in 2007 he accompanied his Commanding Officer as part of the military escort to bring back two SAS colleagues who had been killed in action. He did this on the express order of his Commanding Officer who recognised that there was a close personal friendship with one of the dead men and indeed with his family, to whom he offered considerable support. We have evidence today of something of the intensity of the demands to which all the men were subject from the evidence of Colonel Williams. Incidentally, and separately, we have evidence from one of those involved in the arrangements for Sergeant Nightingale’s flight back to this country which underlines the overwhelming exhaustion which assailed him and his colleagues. The nature of his responsibility on this sad occasion meant that Sergeant Nightingale did not return home bringing with him his own kit, his personal effects and equipment. Indeed, it was at one stage understood that he would return to active service in Iraq after the funerals. But his tour then ended and in due course his kit back in Iraq was packed by others and sent back to this country in the usual way. The kit included the Glock pistol.
10. The pistol had been given to him while he was deployed in Iraq as a present or souvenir by Iraqi Special Forces in whose training he had become involved. Plainly it was presented to him as a mark of respect and admiration.
11. Another separate and important feature of his service in Iraq arose from his involvement as a combat medic. Sergeant Nightingale helped a group of private medical consultants to design a new type of bandage which would seal chest wounds by the use of a revolutionary gel-like substance. In recognition of his contribution, the new bandage was named, and is known as, the “Nightingale Dressing”. We are told that it is used by military and paramedics throughout the United Kingdom to help care for those who have suffered serious chest injuries. Sergeant Nightingale himself has gained nothing from it, beyond no doubt a deep sense of satisfaction that it is a successful invention that will help to reduce suffering.
12. When all his kit was returned, Sergeant Nightingale found the pistol. He intended to have it deactivated — there is a clear finding to that effect — and, after it was deactivated, mounted as a souvenir for the squadron. He never got round to that. He kept the pistol first of all in his room in the sergeants mess; and then in January 2011, when he moved to civilian accommodation, in the bedroom in which it was later found. In the meantime, he continued with his military duties, some of which were in this country. Those duties included responsibilities as a range training officer. In that capacity he was supplied with ammunition for use in training. The ammunition found in his room was ammunition which had been lawfully in his possession for this purpose. However, he was required to return unused ammunition to store and not take it to his own quarters. Accordingly, he was in breach of the fundamental principle for the security of arms, ammunition and explosives: that when they are outside secure stores they are never to be left unattended or in the care of unauthorised persons, or taken home in any circumstances. These orders apply to any weapons which have been kept for trophy purposes, at any rate until they have been deactivated. All this was well understood by Sergeant Nightingale.
13. Following his service in Iraq, and having been back in this country, in September 2009 Sergeant Nightingale decided to participate in a jungle marathon in the Amazon Basin. It was a formidable enterprise, scheduled to last for five days and involving running a distance of 220 kilometres. His objective was to raise funds to assist soldiers who had been injured in the course of their own service. The details are unimportant, but at the end of the race he collapsed. He remained in a coma for three days. He suffered a significant brain injury and he was seriously ill. He underwent a large number of seizures which left him in a state of confusion. There were prolonged impairments to his brain function. He had difficulties with memory and word-finding. Even now there are some continuing residual cognitive abnormalities. He has not yet made a total full recovery.
14. In the opinion of Professor Michael Copelman, the distinguished Professor of Neuropsychiatry who examined him, these cognitive and emotional changes will have made a significant contribution to his continued failure to decommission his pistol and to return it and the ammunition to the amnesty box system (that is from the date when he was struck down by his illness).
15. A psychological report by Dr Susan Young, a forensic psychologist and clinical neuro-psychologist, suggests that there had been severe neuro-psychological deficits as a result of the injury, from which Sergeant Nightingale has been making a gradual recovery. She noted that he was highly motivated to return to work because he “loved it” and he had found ways himself to overcome residual problems with, for example, his concentration and his memory. Nonetheless, her view is that he suffered from a form of clinical confabulation, which meant that on occasions his brain would invent memories to fill gaps caused by amnesia.
16. For all that, by October 2010, just over a year after he had sustained the brain injury, notwithstanding the continuing difficulties resulting from the long-term consequences, Sergeant Nightingale had made determined efforts to recover. As a result, he was sufficiently well to return to active service. He served in Afghanistan, and he left the firearms behind him in his accommodation.
17. We have a further reference about the most recent tour. Throughout that period of service he was predominately employed as an SAS soldier working with another Special Forces Regiment, with significant responsibilities. At the end of the tour he received great praise from the commander of that force. He has overcome the huge disadvantage of what for others might have been a devastating blow to his health.
18. Sergeant Nightingale continued in unlawful possession on the basis of the conviction which has been recorded on his own guilty plea — and this is the only basis on which we can deal with the sentence — in unlawful possession of the prohibited items because, to put it bluntly, he did not quite get round to disposing of them in accordance with Service requirements. That was a serious breach of military requirements. But it also serves to underline that his continued possession of the firearms was not motivated by any wish to sell them for profit, nor to pass them on to anyone else who might misuse them. Of course, he would appreciate, as well as anyone, that if, for example, his quarters had been burgled, for some burglars at least the pistol and ammunition would have represented a very successful criminal enterprise, and firearms might well quickly have passed into the hands of serious criminals. In short, this was an offence of great folly, but not one undertaken for any personal gain or perceived advantage.
19. As the Assistant Judge Advocate by the sentencing decision acknowledged, there are here exceptional circumstances which enabled the Court-Martial not to impose what would otherwise be the minimum required term of five years’ imprisonment. We agree with that conclusion. The question before us today is whether the sentence actually passed made sufficient allowances for the circumstances in which this particular offence was committed by this particular individual. It is plain, and we have already emphasised, that the firearms came lawfully into Sergeant Nightingale’s possession. It is an important linking feature that, after that, his continued unlawful possession of the firearms was not motivated by any short- or long-term malevolence. No one has suggested for one moment that he hoped or expected, or ever anticipated for one moment that any of the firearms would be distributed to anyone else. Somehow — and it tends to explain why this otherwise admirable serving soldier fell into error — every day that went by after the firearms had not been handed in as they should have been, made it less likely that it would happen. On day one, the need to give up the gun would have been an urgent imperative. But on day one he had returned from the exhausting service which he had given in Iraq, following the death of his colleagues and their burial. By the end of the first week, the sense of urgency would still be present, but diminished, if only by a little; and so on, until the end of the first month and then the first six months. Gradually, the fact that the firearms were being kept at home in his own premises would have become part of daily living, and in the daily routine of hard work the presence of the firearms would have ceased to be something requiring urgent attention into something that would be done, but eventually, when he could get round to it. There are, as Mr Clegg suggested, some dangers of over-familiarity in such a situation. More specifically, it all arises in the context of a man who, in 2009, suffered a highly damaging experience. As a result we have little doubt that Sergeant Nightingale’s sensitivity to what in reality was the continuing urgency to remove the firearms from his own possession would, as a result of the consequences of his illness, have become less immediate. By that we do not intend to convey that he will have forgotten all about them all the time; but his mind would have been less acute, less focused on what he continued to keep at his home. No doubt, too, he was preoccupied with the urgent need to return to sufficient fitness to enable him to resume his military duties which he successfully achieved in due course and where, notwithstanding some diminution in his cognitive faculties, he has continued to give highly regarded service.
20. We have stood back and reflected on all these considerations. They lead us to the clear conclusion that for the purposes of the minimum sentence, which we must remember is there, these offences were committed in exceptional circumstances by an exemplary soldier. In these circumstances we believe that our obligation to be loyal to the statute can fairly and justly be achieved by a custodial sentence which will be reduced from 18 months to 12 months, and reduced, in order to enable us to do full justice and exercise a proper degree of mercy, by suspending that sentence for a period of twelve months.
21. Accordingly, the appeal against sentence will be allowed. Sergeant Nightingale will be released immediately. His appeal against conviction will take whatever course is appropriate following advice.