Danny Nightingale retrial sentence – 2 years imprisonment (suspended) – updated

Introduction

Sgt Danny Nightingale attended his Court Martial in Burford on 25th July 2013 to be sentenced for possession of a firearm and ammunition. Coverage of the conviction (and some of the issues that may have arisen at the sentencing here) is here, and we have full background to the Nightingale case here.

Judge Advocate General HHJ Jeff Blackett sentenced him to 2 years imprisonment (called military detention), but suspended for 12 months. His original sentence was 18 months detention (immediate), but this was reduced to 12 months suspended. Although Sgt Nightingale walks away from Court a free man today, this is an increase on his original sentence.

This is a very high profile case with a lot of media interest. When the dust has settled (and the sentencing remarks available) we will return to this and update the post. One question that had been debated is whether a higher sentence can be imposed and it seems that the answer to that was ‘yes’.

Why was the sentence passed?

Unusually, the sentence here can be criticised in two ways. There are reasons why it is too long, and reasons why it is too short. Sounds odd? The starting point is the sentencing remarks.

Why the sentence is too short

The Judge indicates that the starting point is the mandatory minimum – 5 years. A sentence lower than that can only be passed if there are ‘exceptional circumstances’. As we have noted before, this is a very narrow test – it will only apply in a very small number of cases.

Four exceptional circumstances were identified in this case by the Judge :

1. You were an outstanding Senior NCO who has served with distinction in the elite regiment of the British Army.  You have served on a number of operational deployments where your conduct has been exceptional;

2. Not only have you done your duty, but you have also done more to improve the medical care of those who receive traumatic injury by developing the Nightingale dressing;

3. You suffered a brain injury in 2009 which has had some effect upon you – while the court has rejected your assertions of confabulation about the pistol and ammunition we accept that you do have some mental impairment which may have affected the way you failed to decommission the pistol or return the ammunition;

4. You had no criminal intention – you found yourself in this position because of poor administrative practices and possibly forgetfulness. 

First off, it should be noted that it is (at the very least) questionable whether these circumstances, either individually or taken together, can amount in law to ‘exceptional circumstances (see the list in the case of Downes referred to above).

To the extent that Sgt Nightingale got a large reduction from 5 years to 18 months first time round he was very lucky. Of course, this time around he did not have the ‘credit’ for a plea of guilty as he had a trial and the Court were sure that he was not telling the truth.

Looking at all that, the ‘appropriate’ sentence (the one that one would expect) is one of at least 5 years. To that extent, 2 years suspended is a ‘touch’.

Why the sentence is too long

However, as we pointed out, the usual rule is that one cannot get a higher sentence after a re-trial than on an original trial. The Judge got round this in Sgt Nighingale’s case by referring to the case of Skanes [2006] EWCA Crim 2309 (not available on-line unfortunately). This case (not widely known) did throw doubt on whether this usual rule applied in a case where someone pleaded guilty. Mr Skanes was charged with rape and other offences. He pleaded guilty to the rape, got 7 years, and the remaining charges were not proceeded with.

He then appealed on the basis he hadn’t been advised properly, he succeeded, and was tried on the rape and other offences. He was found guilty of them all and got ten years. The Court of Appeal refused to reduce it. They didn’t quite engage with all the issues, making the sentences for the other offences 3 years consecutive to the 7 years for the rape.

Whether this applies to Sgt Nightingale is questionable. It seems to me that the Court Martial would have been bound by the actual sentence imposed first time around by the Court of Appeal. For that reason, as 2 years is longer than the original sentence, and the sentence as varied by the Court of Appeal, it is too long.

In fairness, it seems that there is a separate ruling in relation to this that will be be released in due course. It may be that that makes the position clearer.

Conclusion

All in all, this seems a sensible and fair way of dealing with the case. It marks the seriousness of someone having a deadly firearm with lethal ammunition, but recognises the mitigating factors. Sgt Nightingale can, for reasons we have already said, consider himself fortunate that he didn’t get the 5 year minimum, but hopefully this will be the end to a long and sorry saga.

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4 thoughts on “Danny Nightingale retrial sentence – 2 years imprisonment (suspended) – updated

  1. jon

    The imperative of our enjoying a gun-free society seems an overriding public policy goal, more than worthy of a strict liability test. I’d have preferred him to have got real time.

    Reply
    1. Dan Bunting Post author

      I disagree with mandatory sentences for a variety of reasons and also disagree that you can be found guilty of such a serious offence without ‘mens rea’.

      But I agree that on the current law there’s no question that he was very, very fortunate in not getting the mandatory minimum.

      My view is that the sentence is the right one in fact, if wrong in law. Sgt Nightingale was lucky that due to his background and circumstances he attracted the sympathies of the tabloids and even some MPs. Many other people weren’t so fortunate.

      Reply
  2. Fat Cat Counsel

    I wonder if the Lord Chief would have been so sympathetic had he known that in the subsequent re-trial Sgt Nightingale was going to lie his head off, shaft his best mate and jeopardise the security of fellow SAS colleagues. Of course none of that will be reported in tomorrow’s edition of ‘The Sun’.

    Reply
  3. Pingback: Danny Nightingale | Dock Brief

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