Tag Archives: Avis

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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Sgt Nightingale – ‘just and fair’ to reduce his sentence

nightingale

The Court Martial Appeal Court, presided over by the Lord Chief Justice, reduced Sgt Nightingale’s 18 month sentence to a suspended sentence of 12 months in respect of his guilty plea to possession of a prohibited firearm and ammunition.

The facts are here.

The appeal transcript is here.

The transcript of the Court Martial hearing is here.

Reasons

After recounting the facts – in particular stressing Sgt Nightingale’s distinguished service career – the Court went on to state its reasons for reducing the sentence.

The Court rehearsed the reasons given in the Court Martial for the sentence of 18 months, offering very little by way of a fresh view of the offences: Sgt Nightingale had no intention that the weapon would be used for any criminal purpose and the highly unusual circumstances of Sgt Nightingale coming into possession of the firearm and ammunition were of note.

The Court then briefly recited the medical considerations which were discussed in the Court Martial transcript.

After ‘reflecting’ on those considerations, the Court came to the following conclusion:

 “…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.”

Comment

Irrespective of your view of the decision, the transcript offers very little by way of actual reasoning for a reduction in sentence. There is a concise (read: brief) recitation of the facts, followed by the statement that a 12-month suspended sentence would be ‘fair and just’. (That is not to say that 18 months is incorrect.)

It appears that the Court ‘felt’ that 12 months was the appropriate sentence in this case, whether that takes into account the media pressure, the time served since the Court Martial decision, or any other factors, is unclear.

So what is missing? There is no mention of authorities, notably the guideline case of R v Avis. Further, there was, as is commonly in sentence appeals, no reference to any ‘tariff cases’ (comparing the case being heard to other recent decisions of the Court of Appeal in similar cases). Presumably, this is due to the ‘wholly exceptional nature’ of this case, and so comparing other sentences for possession of prohibited firearms would have been of little use.

There is no criticism of the Court Martial; often, the Court of Appeal politely state that ‘the Judge failed to properly reflect’ certain aspects of the case. In other cases, the Court expressly state that there can be no criticism of the sentencing judge, and state their reasons for taking that view. Here, we have neither.

The conviction appeal will be heard in early 2013.