Tag Archives: Appeals

Sgt Nightingale convicted at retrial

Sgt Nightingale’s retrial began on 1 July 2013 before the Judge Advocate General HHJ Jeff Blackett at in the Court Martial.

The background on court martial proceedings can be found here.

A chronology of the case can be found here.

Retrial

Essentially the case was that Sgt Nightingale was in possession of a prohibited firearm (Firearms Act 1968 s 5(1)(aba)) and possession of ammunition (Firearms Act 1968 s 1(1)(b)). They were namely a glock 9mm and quite a lot of ammunition, including armour piercing bullets.

He initially pleaded, appealed sentence (and won), and appealed conviction (and won).

His defence at trial was essentially that he was not in possession of the items and that they could have been planted in his room. Many thought this was optimistic at best.

On 10 July 2013, he was convicted.

Sentence

Sentence has been deferred for ‘legal reasons’. His solicitor Tweeted:

the #nightingale sentence raises point of law of exceptional importance and has been referred to the Court Martial Appeal Court

Court Martial Appeal Court

It is understood that this relates to whether the Court Martial, which must sentence Sgt Nightingale, is capped at the sentence originally passed upon the first conviction.

The Court Martial Appeal Act 1968 s 20(6) states: Schedule 1 to this Act contains additional provisions applicable to a retrial authorised by order of the Appeal Court under section 19.

Sch 1 para 3 states:

If the person is convicted on the retrial, the Court Martial may not pass a sentence that is (or sentences that, taken together, are) more severe than the sentence (or the sentences, taken together) passed at the original trial.

The contention is, one presumes, that Sgt Nightingale’s is ‘capped’ at the suspended sentence of 18 month’s detention imposed by the Court Martial Appeal Court (the appeal against sentence).

The prosecution are presumably suggesting that that is not the case as:

a) that sentence was imposed after Nightingale had pleaded guilty (for which he received some discount off his sentence)

b) the sentence was imposed on a false basis – that he ‘forgot’ he had the weapon and ammunition, and

c) the section in the Court Martial Appeal Act 1968 did not contemplate a situation where a retrial was ordered following a conviction arising out of a plea of guilty.

It remains to be seen whether things will get worse for Sgt Nightingale.

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Disparity of sentence

Disparity of sentence is the principle whereby it is argued that one defendant should receive a less severe sentence based on a comparison with a co-defendant’s sentence. This can occur in one of two circumstances; firstly, where similar cases are sentenced differently, an secondly where different cases receive the same sentence.

Appeals

Disparity does not form a separate ground of appeal and so will need to form either a part of, or the basis for, an argument that the disputed sentence is manifestly excessive or wrong in principle. Consequently,  disparity argument can be mounted when a sentence is and is not manifestly excessive.

The test

Consider whether right-thinking members of the public thought that something had gone wrong with the administration of justice, R v Fawcett and Others 1983 5 Cr App R (S) 158.

Restrictions

The Court of Appeal has sought to reduce the scope of disparity. Consequently, arguments which has previously seemed more likely than not to find sympathy with the court have been rejected.

Does a disparity in sentence mean a reduction?

No. When considering the appeal against the fine imposed on Balfour Beatty, imposed after convictions arising out of the Hatfield rail crash, the Lord Chief Justice said that disparity between the sentences of two defendants was not an automatic reason for reducing a sentence.

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?