Tag Archives: Appeal

Sgt Danny Nightingale conviction appeal hearing – 13 March 2013

 nightingale

Last year, the story of Sgt Danny Nightingale was all over the press. The background is briefly as follows:

Background facts

Sgt Nightingale has been a member of the armed forces for 17 years, with 11 of those spent in the SAS. Whilst in Iraq in 2007 he was given a weapon as a gift or ‘war trophy’ marking his ‘outstanding service’.

Sgt Nightingale returned to the UK after the deaths of two close colleagues and his belongings were shipped back to him by his colleagues. This included the weapon and ammunition, which were stored in a lockable box. The Court did not accept that Sgt Nightingale had forgotten about its existence completely, although due to other matters, they accepted that he ‘gave little or no weight to it’.

In 2009, Sgt Nightingale suffered serious injury which, it was accepted, affected his memory to some extent. By October 2010 however, he had recovered and was back on active service. In May 2010, the box containing the weapon was moved into the mess, and then in January 2011 into Sgt Nightingale’s home.

In mid-2011, he went on operations and placed the weapon in a cupboard and the ammunition underneath his bed. The Court considered that during this move Sgt Nightingale would have clearly recalled both the pistol and ammunition but no doubt placed it very low on his list of things to sort out due to being so busy (as a result of going on operations).

The court stated: ‘The court would not be doing its duty in relation to protection of the public at large if it did not bear in mind the potential grave consequences of your behaviour.’

Reference was made to the statutory minimum sentence of 5 years. The Court found exceptional circumstances which enabled them to impose a sentence below the statutory minimum. Sgt Nightingale was detained for 18 months.

History of the court hearings

We covered the Court Martial hearing here, where Sgt Nightingale pleaded guilty and was sentenced to 18 months detention.

We reported the Court Martial Appeal Court judgement (sentence appeal) here, where the court reduced the sentence to one of 12 months suspended.

We examined that decision here.

Conviction appeal

Yesterday, Sgt Nightingale’s solicitor, Simon McKay (@SimonMcKay) confirmed that the appeal against conviction will be heard on 13 March, and will principally be based on the issue of Sgt Nightingale’s alleged equivocal plea:

Simon McKay tweet

We will cover the appeal and the decision on 13 March.

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R v Beeden – Case Comment (Breach of a SOPO)

SummaryAppeal against sentence to the Court of Appeal for 9 months following a guilty plea to breaching a SOPO.

Overview – Mr Beeden had a history of sexual offending against children. This culminated in him receiving a SOPO, one of the terms being a prohibition on  ‘owning or having personal possession of any equipment or device capable of connecting to the internet‘. This was imposed (seemingly) in 2010. He breached this once and was sent to prison the next year. This appeal arose out of a visit to his house in June of 2012 where he was found to have a laptop with a broadband connection. After being released on bail, he was found in his house again with a tablet that could connect to the internet. He pleaded guilty to both and was sentenced to a total of 9 months (3 for the first consecutive to 6 for the second).

However, prior to the sentence, Mr Beeden had successfully applied to the Court to vary the terms of the SOPO (presumably as it was far too restrictive) to allow him access to the internet (with certain conditions). The appeal was on the basis that as the SOPO was amended (and, it was seemingly accepted, should not have been made in the terms that it was) this lowered Mr Beeden’s culpability. The Court gave this argument short shrift – they said that the fact of a subsequent amendment is no mitigation at all. The order, once made, must be obeyed.

Analysis – We don’t have the full transcript (just summaries from Lawtel,  Westlaw and CrimeLine).

Was the Court right? Does the fact that the SOPO was amended make no difference to sentence? It is clear that the fact that it should not have been made is not a defence (see T v DPP [2006] EWHC 728 (Admin) – an ABSO case) – although if the SOPO had not been lawfully made this would be different (Lawson [2008] EWCA Crim 416).

The Court has previously said in relation to ASBOs that if there is a term that appeared in an interim ASBO that does not appear in the final ASBO, then breaching that term does not make the offence less serious. This seems on the face of it to be similar. To that extent, there is ‘authority’ for what the Court are saying.

We have commented previously on the problems with SOPOs being made that should not have been, so this is a problem that will not go away.

Comment – In assessing the seriousness of any offence it is important to go back to consider the reasons why the activity is criminal. Here, the purpose of a SOPO is to protect the public. To do this involves a restriction on the liberty of a citizen and can make a great impact on their freedom. For this reason, rightly, it cannot be imposed unless it is necessary to protect the public.

If it is determined that it is was not, in fact, necessary to have imposed a particular condition, then the rationale for its imposition has gone. Whilst it may not impact on the state of mind of the defendant (although if his lawyer told him that the order could be challenged, it may not be surprising if he took it less seriously), the harm caused by the breach is necessarily less.

For that reason, I would suggest that to say this can make no difference to the sentence is wrong. Whilst it is accepted that the criminality is the breach of a court order, the fact that it was a ‘wrong’ order should be reflected in a lower sentence.