Tag Archives: Court Martial Appeal Court

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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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.