Tag Archives: Court Martial

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 fails in abuse of process application – retrial goes ahead

nightingaleAnd so the Sgt Nightingale saga rumbles on….

Readers will recall that after a successful sentence appeal and a successful conviction appeal, the Court of Appeal ordered a re-trial on the basis that the plea of guilty was a nullity as a result of improper pressure to plead guilty at the Court Martial.

A summary of the history of the case is available here. (Written before the sentence appeal.) Please see the ‘Sgt Danny Nightingale’ menu item at the top of the page for all posts on this case.

The hearing dated 1 May 2013 was a preliminary hearing. Such hearings are used to determine issues before trial. At this hearing, Sgt Nightingale argued that the decision to prosecute him was an abuse of process as the prosecution for a second time was not in the public interest. He argued it was both improper and oppressive. The Crown rejected Sgt Nightingale’s arguments. 

The court considered case law on the issue.

HHJ Jeff Blackett, the Judge Advocate General determined that the Director of Service Prosecutions (responsible for prosecutions in the Service Justice System) had not acted improperly.

The Judge went on to say:

‘…there is no suggestion that the decision to prosecute is arbitrary and I have already ruled that there was no impropriety on behalf of the DSP. Nor has there been excessive delay, there is no issue of lost or destroyed evidence, entrapment, going back on a promise not to prosecute, manipulation of procedure or immunity from prosecution. Nor can it be said that the Crown has acted in bad faith or dishonestly. There is a prima facie case against the defendant for two offences of unlawful possession of a firearm and unlawful possession of ammunition. The defendant has been properly investigated and then charged and the Crown has confirmed that it has kept the decision to prosecute under continuous review. In other words, oppression above and beyond the ordinary consequences of initiating a prosecution has not been shown. All of the factors suggested by the defence relating to the Defendant’s health, his future employment, the cost of defending himself or the risk of conviction reflect the personal impact upon the Defendant but they do not amount to oppression by the Crown.’

The Judge concluded:

‘…it is not my function to review the decision to prosecute. Provided I am satisfied that there has been no bad faith or dishonesty and that the exercise of a prosecutorial discretion has been conscientiously undertaken, I should direct that the matter proceeds to trial.’

The re-trial is expected the begin on 1 July.

The transcript, courtesy of Crimeline, is available here.

Image courtesy of the Daily Mail.

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.

Sgt Nightingale: What is the basis for reducing his sentence?

nightingale

Below is an edited version of the original decision of the Court Martial in relation to Sgt Nightingale. This decision was appealed to the Court Martial Appeal Court, heard on 29 November 2012 by the Lord Chief Justice, Lord Judge, and Justices Fulford and Bean.

The Court substituted the sentence of 18-months detention for one of 12 months detention, suspended for a period of 12 months. This allowed for Sgt Nightingale’s immediate release.

An Independent news report can be found here. Notably, William Clegg QC stated that there was 107,000 signatures on a petition to release Sgt Nightingale. Of course, the courts are supposed to exclude such matters from their decision, however it may be that the Court has bowed to the overwhelming support of Sgt Nightingale.

The judgment has not yet been released, however we can conclude the following:

a)      The court found that the custody threshold was crossed,

b)      The court judged the appropriate custodial term to be 12 months,

c)       The court, having decided on a 12-month custodial term, found grounds to suspend the sentence.

It remains to be seen how the Lord Chief Justice will reconcile this decision with his ‘no nonsense’, ‘no ifs, no buts’ policy on firearms, and the guideline case of R v Avis, but there is no doubt that the judgment will make for an interesting read.

The reasons for this are likely to be based on the mitigation advanced in the Court Martial. When the Court of Appeal (which is the civilian equivalent of the Court Martial Appeal Court) reduce sentences imposed by Crown Courts, they often suggest that the Judge failed to properly reflect a factor or factors of the mitigation, or gave insufficient weight to a feature of the case. It may be that this is the case for Sgt Nightingale.

To assist with this assessment, I have edited the transcript of the Court Martial when imposing the 18-month sentence. Below, you can find the prosecution outline of the facts, information about the medical condition suffered by Sgt Nightingale, the defence plea in mitigation, and the Judge Advocate’s decision and reason for sentence.

Col Barnett for the Service Prosecuting Authority

Mr Winter for the defendant

Prosecution outline of the facts

Sgt Nightingale’s explanation

12F COL BARNETT: In the interview he gave a full explanation to West Mercia Police saying that he was given the Glock as a present by local nationals with whom he had worked whilst deployed on operations there. It was his intention that at the time to have the pistol deactivated and mounted as a souvenir for his squadron when he left the unit. He said he had not been intending to keep the item in its present form, wished to have it decommissioned but had never got around to it. He said the ammunition found in his bedroom in the SSSA was there because he had not also got around to handing that in. He had been incredibly busy whilst in his unit, as you will be able to imagine I have no doubt, with a very full round of duties, but he did accept that he could have handed the matters back into the amnesty boxes which are posted around the unit and he had time to do so. He also accepted that he knew that if there was a requirement for a trophy, if you like, or a pistol which has been handed to him, that there were procedures which should be followed in order to deactivate that weapon in accordance with the normal procedures and paperwork that would be required.

The procedure for war trophies

13B COL BARNETT: There is a Land Forces Standing Order and this is reproduced in unit orders, and the Land Forces Standing Order deals with what are called non-service weapons, and those are weapons which have not been issued to an individual in relation to their service, and it makes it quite clear that those weapons, which can be more than trophies, they can be other weapons which people may have, hunting rifles and the like, that they must be secured in proper armouries or the like, arms kotes, basically in lockable storage facilities and then there is an application procedure in order to deactivate the weapon and have it registered and dealt with in accordance with that Land Forces Standing Order.

13D COL BARNETT: Unit Standing Orders specifically states supervision of army, ammunition and explosives. The fundamental principle for the security of arms, ammunition and explosives that when they are outside secure stores they are never to be left unattended or in the care of unauthorised persons or taken home in any circumstances.

Medical injury

14B COL BARNETT: SergeantNightingale suffered a traumatic brain injury in late 2009, October 2009, so in other words during the period that the possession spanned 2007 to 2011. In 2009 he was conducting a jungle marathon and there is some complex medical terminology, which I will not go into now, I know my learned friend intends to hand up to you various documentation, but in short he suffered fits, seizures and a coma and a cognitive brain impairment that was both serious and was treated in Headley Court, and he made a very good recovery, but it is accepted by the Crown that there continues to be some cognitive brain impairment following that incident. He did make a good recovery and was declared fit for duty within current medical employment standards.

22C MR WINTER: I have obviously spoken to Sergeant Nightingale at length about this and he has, if I may add personally in my view, honestly wrestled to find a genuine memory of this gun and its presence in that gorilla box and simply cannot, he does not remember having it, and we invite you to conclude on that basis of that evidence and indeed the evidence of Doctor Young, who I will call in a moment, that it is wholly genuine that on return to health in the latter part of 2009, his memory of having been given the Glock had in effect been erased by the brain damage caused by that injury.

Defence summary of what happened to the weapon and ammunition

24C MR WINTER: So to summarise: we submit that his knowledge of it must be in respect of its gift in the last duty in Iraq; that his focus upon that was obscured by the death of his friend and the problems with his wife and not returning, not packing his stuff, but in any event from 2007 to the middle of 2010 the vast bulk of this it remained in that locked and secured cage; from mid-­2010 to January 2011 lived in the mess, which was also secure, but from January 2011 to May 2011 it was in its gorilla box but in the non-secure or not very secure triple SA for which he deeply apologises, and from May 2011 to the 16th September it was in the cupboard for which he deeply apologises. But for the vast bulk of the period, indeed the entire period where it was in non-secure accommodation, he had no active knowledge or memory of it as a result of his medical injuries, and I am instructed that the ammunition, whilst in the plastic box, was not, I am told, visible to the naked eye unless you opened the box and went through it, obviously.

Decision of the Judge Advocate

The facts

30A JUDGE ADVOCATE: Let me say from the outset that it is clear to us that you have rendered very great service over the years both to the army and your country, particularly with regard to your current unit and your operational tours. You have an exemplary character so we put out of our minds the one previous service transgression due to its staleness. We accept you have demonstrated genuine remorse and that the offences come about primarily by way of your inaction.

Now turning to the offence; you shared accommodation with another soldier who has already been dealt with for not dissimilar offences. As a result of information your house was searched and you were found to be in possession of a Glock automatic pistol along with a substantial amount of 9mm ammunition as well as armour piercing rounds. These were found in a cupboard under the bed in your home that was not in any way secure as very often you were away on your duties. We are told and accept that this weapon came to you as a present in Iraq in 2007; that it was shipped back to you in the UK by colleagues. You say you forgot about it whilst it remained in your box in a cage. Whilst we accept that you gave little or no weight to it, we find it difficult to go on to accept it was out of your mind entirely.

In 2009 you were involved in a very serious incident which resulted in serious injury, which we accept affected your memory to some extent. Nevertheless, mainly through your own determination, you had recovered sufficiently so that by October 2010 you were placed back on active service.

Now in May 2010 the box, in which was the pistol, was moved into the mess for its cage and then, along with the ammunition into your home in January 2011. Subsequently you went on operations in mid-2011 and placed the boxed Glock in a cupboard and the ammunition was placed under your bed. We consider that during this move you would have clearly recalled both the pistol and ammunition but no doubt placed it very low on your list of things to sort out due to being so busy.

Now I do not need to tell you that military weapons particularly when combined with suitable ammunition and kept in insecure accommodation has the potential to cause very great harm should they fall into criminal hands.

Exceptional circumstances:

31A JUDGE ADVOCATE: In considering this matter we are assisted by the case of R v. Reeman and R v. Wood [2006] 1 Cr.App.R. as to whether there are exceptional circumstances in your case. We find:

1.               That whilst you did not plead guilty at the first opportunity, we accept that your medical condition allows us to give you more than the usual credit for a plea at the court door.

2.            You are a man of exemplary character.

3.               You were entirely cooperative and genuinely remorseful.

4.               You are a highly valued soldier of great practical experience.

5.            The gun was not fired.

6.               We recognise that but for your particular work you would not be in contact with such weapons and ammunition.

Further, that the familiarity with them had made you lose sight of the essential requirement for their safekeeping. Finally, that but for your work, you would not find yourself in such a position. All these matters allow us to find exceptional circumstances in your case. Nevertheless, 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. You must understand that these are extremely serious offences that require a custodial sentence of considerable length.

The court then imposed a sentence of 18 months detention.

Defence plea in mitigation: Key excerpts

16B MR WINTER: One of the matters we have had to wrestle with is to whether that is in fact a genuine memory or not. His plea of guilty of course accepts that it must have happened in that way but is one of the difficulties we faced, because as I was asking him well where was it given to you; by whom; who was there; what presentation took place when it occurred; what time of day was it; what period of the year was it; he has no memory of any detail at all that would assist him to recall that event. It must have occurred but he has no recollection of it, and that, we submit, impacts in truly exceptional circumstances upon his knowledge of this item in the years thereafter.

16D JUDGE ADVOCATE: So Mr Winter would it be right that at the time of the interview at the latest he seemed to have regained his memory as to how he came by the Glock?

MR WINTER: He may have done or he may have confabulated, that is the problem.

17B MR WINTER: We are constructing that on a basis of what really must have happened as opposed on his recollection that he did.

20H MR WINTER: It is in this period, i.e. sometime towards the end of October or early November of 2007, that it must be the case that the Glock was presented to him. That is an analysis that has been constructed really from his wife Sally’s memory and what he said in interview. He now really has no recollection of that having occurred, it must have done. But on the 6thNovember of 2007, his best friend, Lance Corporal John Ratisby, may he rest in peace, was tragically killed in Iraq. He had known him since joining the army and on the first day of joining the army in 1995, and it was he, Sergeant Nightingale, who persuaded John to join this unit, and he was killed just two weeks before the end of that duty role. Sergeant Nightingale flew his body back to the United Kingdom leaving behind all his kit because he thought he would be returning to Iraq. But he did not return to Iraq. His equipment was packed by a colleague, we do not know whom.

21C MR WINTER: Now the Glock is in the Pelican black box that might have contained tools or other equipment and there is no basis at all for thinking that whoever put it into the gorilla box knew that it contained a gun. Probably just slung it in there as you would, told to get this stuff out of here, slung it all in the gorilla box, go back to England, we’ll sort it out, and the gorilla box arrived, as you have been told, sometime after Christmas, around January of 2008, where it was moved either by Sergeant Nightingale, he does not know, he cannot remember, or somebody else, it does not really matter, to the locked cage at the squadron block, and as you will be well familiar those cages are about as secure an environment as it is possible to have. The box is locked, the cage is locked, the building is locked, it is inside the squadron facilities it is difficult to contemplate a more secure environment for it.

That we submit is very, very significant mitigation, because his state of knowledge as to the existence of the gun in his possession at that time, at that time obviously is that he had been presented with it in Iraq, that it was in his possessions, but obviously the problems with his wife and then the death of his best friend perfectly understandable that it then should have slipped his mind, he having not packed his box. And as you will be well aware, it is an operations box that is only needed when you are on operations, contains the specialised equipment that this unit needs to use if it is going on a hot mission or on a cold mission they pack the relevant equipment in the operations box. But he was not on operations for the whole of 2008 or the period of 2009 prior to the marathon. It therefore remained in the locked secure cage for the whole of 2008 and the whole of 2009 and in fact for the first half of 2010.

22F MR WINTER: The gun remained in the cage until mid-2010 when it was required to be moved from the cage to his mess accommodation, not the triple SA but the mess accommodation that he was given at that time. He does not believe he opened it because he would not need to open it, he has no memory of it, but he says why would I open an operations box when I was not on operations, and he believes he used it for his brew-up table, having put a cloth over it, in his mess room where it remained from mid-2010 until January of 2011.

23B-E In the early part of 2011, in January, he was required to move out of the mess into the triple SA accommodation, but he was on the 30-minute standby and he therefore was given by his superiors about 2 hours to move his stuff out of the mess and get back…So in January 2011 it moves from the mess to the triple SA but the gun remains in the locked gorilla box, which to a degree, we submit, does mitigate. As a result of being on that 30-minute standby team, he said in interview and repeats through me to you that he does not believe that he stayed at that accommodation more than three or perhaps five times maximum having been given it because he would normally take a camp bed and sleep in the mess to cut down that 20-minute drive, they having to be airborne within 30 minutes of the call alerting them to that requirement, and therefore we invite you to conclude that his window to check the box under the bed or check the contents of the gorilla box is limited to about three to five days in the period between January and May of 2011.

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?

Sgt Nightingale – background information

On 6 November 2012, Sergeant Nightingale pleaded guilty, on rearraignment, to possession of a prohibited firearm (Firearms Act 1968 s 5(1)(aba)) and possession of ammunition (Firearms Act 1968 s 1(1)(b)).

Brief background

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.

Key facts

Weapon: 9mm Glock pistol

Ammunition:

a) 122 x 9mm live rounds of ammunition

b) 40 x 7.62mm live rounds of ammunition

c) 50 x 9mm frangible rounds of ammunition

d) 50 x 338 armour piercing live rounds of ammunition

e) 2 x .308 live rounds of ammunition

f) 74 x 5.56mm live rounds of ammunition

Findings of the court:

  1. That whilst you did not plead guilty at the first opportunity, we accept that your medical condition allows us to give you more than the usual credit for a plea at the court door.
  2. You are a man of exemplary character.
  3. You were entirely cooperative and genuinely remorseful.
  4. You are a highly valued soldier of great practical experience.
  5. The gun was not fired.
  6. We recognise that but for your particular work you would not be in contact with such weapons and ammunition.
  7. He knew full well from both your experience and Standing Orders that such items were never to be held insecurely at your home but rather securely in a lock-up cage at work.

More information

Further background, written before the transcript was released, is available here.

An explanation of how the Court Martial operates is available here.

The transcript of the proceedings is available here.

Press reports

The BBC reported that [Sgt Nightingale’s lawyers] ‘said he pleaded guilty to the charge after being warned by the judge in the case he could face five years’ detention if found guilty in a trial.’ It is of course correct that Sgt Nightingale should have been (and probably was) advised of the minimum sentence provisions and so it is unlikely that he pleaded guilty only after being advised by the Judge that he could receive a sentence of 5 years’ custody. It is also worth noting that unlike other minimum sentence provisions, there is no power to reduce the minimum term to take account of a guilty plea, and so the BBC report is inaccurate in that respect also.

Consequently, this serves as a valuable lesson that news reports should be treated with care, and that (too) often, they cannot be relied upon to give an accurate recitation of the facts.

Public support

Simon McKay, Sgt Nightingale’s solicitor, confirmed that there would be an appeal against both conviction and sentence.

There has been considerable public support for Sgt Nightingale, including an open letter written to the Prime Minister by Sgt Nightingale’s wife.

The BBC reported that Lt Col Richard Williams, Col Tim Collins, Mr McNab and Mr Ryan (ex-SAS members) have written to the Prime Minister also, describing the case as a “monstrous miscarriage of justice”.

The Sun has rallied behind Sgt Nightingale, calling the case a ‘shameful betrayal’ and asked the Prime Minister to ‘compare [the case] to that of Abu Qatada and see if it is fair’. The Telegraph have also backed Sgt Nightingale, describing the

MP Patrick Mercer said he had raised the issue with the defence secretary and had called for a ‘clear explanation’ about what had happened, and asked him to ‘perhaps review the case’. (BBC report)

Sgt Nightingale’s family are now receiving donations via Paypal. Sgt Nightingale refused legal aid ‘on principle’.

Political intervention

On 20 November 2012, it was reported that Defence Secretary, Philip Hammond had asked the Attorney-General to review Sgt Nightingale’s conviction. It is unclear under what power the AG is being asked to do so, however Sky News reported that Philip Hammond was questioning whether the public interest test was met in relation to the prosecution.

A spokesman for the Attorney General’s office said: “It would be inappropriate for the Attorney General to review either the decision to prosecute or comment on the appropriateness of the sentence. That is a matter for the Court Martial Appeal Court, in due course.”

The Court Martial

Most people will have seen a Court Martial on TV. John Thaw, Maxine Peake or Tom Cruise are just some examples. But do we really understand what military courts are, how they operate and why we need them?

There are no longer courts martial, ad hoc courts convened only when required. Instead there is now the Court Martial a permanent court in the manner of the Crown Court; the judge wears a wig and the public are allowed in. How then does the Court Martial differ from a civilian court?

Who is present at the Court Martial?

Judge: The Court Martial is presided over by a Judge Advocate, a trained judge with a military background who also sits as a judge in the Crown Court. The most senior Judge Advocate is the Judge Advocate General HHJ Jeff Blackett, a senior circuit judge and previously a Commodore in the Royal Navy.  Judges wear a bench wig, bands and a black robe with a tippet (sash) in the tri-service colours (navy blue, army red & air force blue); they do not wear military uniform. Until recently Judge Advocates were addressed as ‘Sir’ however this year it was decided that Judge Advocates would now be addressed as ‘Your Honour’.

Defendant: The defendant is usually a member of the Armed Forces. There is now only one Court Martial that deals with members of the Royal Navy, Army and Royal Air Force. However some civilians may be tried by the Court Martial, either for crimes committed whilst in service or if subject to military discipline (usually civilians living on military bases). The accused wears uniform without a belt and sits next to Defence Counsel, there is no dock.

Jury: The ‘jury’ in the Court Martial is called the Board and is made up of between three and seven members who are either commissioned officers or senior non-commissioned officers. The Board will wear uniform and march in to court led by the senior member. Service personnel salute the board and counsel bow. The most senior member of the board is the ‘President of the Board’, they must be senior in rank to the accused and are responsible for the integrity of the board’s deliberations.  When deliberating and following ancient tradition members of the board vote in reverse order of seniority so no one feels pressured to vote the same way as their superior. If a civilian is being tried then the Board is made up of civilians (usually MoD personnel) who elect a foreman just like a jury in a Crown Court.

Prosecution: Prosecutions are handled by the Service Prosecuting Authority (SPA), a unified military version of the CPS staffed by military lawyers and headed someone entirely independent of the military, currently Bruce Houlder QC. The SPA has increasingly professionalised the conduct of service prosecutions since its inception following the Armed Forces Act 2006. Previously matters were prosecuted by the individual services, now lawyers from any service can prosecute; an airman can prosecute a soldier, a sailor can prosecute an airman. As serving officers SPA lawyers will wear uniform and will salute the Judge Advocate and Board not bow.

Defence: The defendant is entitled to representation from any qualified barrister, solicitor or a similarly qualified lawyer from the Commonwealth. Usually this is a barrister or solicitor who appears in the same manner as they would in the Crown Court.  In addition to a qualified representative tradition dictates the appointment of a Defendant’s Assisting Officer to assist with the conduct of the case. This member of the defendant’s unit helps to arrange witness attendance, conducts research where required and supports the defendant through the process. Defendants are not entitled to Legal Aid in the normal manner, instead legal aid is provided by the Armed Force Criminal Legal Aid Authority but increasingly the defendant will be required to contribute to the costs of their defence. This can lead to some opting to represent themselves or simply pleading guilty rather than incur the expense.

The Trial

The Court Martial tries offences against both service law and ordinary criminal offences committed on military bases or overseas. Additionally the Police may return a serviceman accused of crimes elsewhere in the UK to the military for trial. The conduct of the trial is entirely in the hands of the Judge Advocate and follows the procedures and layout of the Crown Court. Since the reforms of the Armed Forces Act 2006, the Board sits separately from the Judge Advocate in the manner of a jury. The Judge Advocate will arraign the defendant and swear in the Board. Counsel sit at tables facing the bench and the trial takes the same format as in a Crown Court. The prosecution is under the same burden of proof in the Court Martial as in the Crown Court and the defence may challenge evidence as robustly. At the conclusion of the trial the Judge Advocate will sum up the case having heard legal submissions from counsel. Then the Board will withdraw to deliberate on the verdict under the direction of the President of the Board.

The Sentencing

The most significant difference between the Crown Court and the Court Martial is at the sentencing stage. The sentence is decided, in the case of service personnel, by the Judge Advocate and the Board. If a civilian is being tried, then the Judge Advocate alone passes sentence. The Court Martial has wide sentencing powers that can affect both the liberty and the career of a defendant.

At the sentencing stage the Board will join the Judge Advocate on the bench and hear mitigation from counsel before retiring to decide upon sentence. As with a jury in the Crown Court, the Judge Advocate gives directions on the law to the Board that they must follow. The Board also has before them during the sentencing exercise a report of the defendant’s service record. Their discussions are private and each member has a vote. If there is a deadlock the Judge Advocate has the deciding vote. Therefore, the sentence passed by the Court Martial is not simply the decision of a lawyer applying the law but a collaborative exercise with experienced members of the Armed Forces.

As in the civilian courts, a guilty plea attracts a discount in sentence. However unlike the civilian courts a Court Martial may, if necessary, depart from the usual sentencing practices and indeed the Sentencing Guidelines for ‘Service reasons’.

The Judge Advocate is required to give his or her reasons for the sentence they are imposing. Although rarely done, the President of the Board may add further comments explaining the effect of offences on the military generally. If a defendant is sentenced to custody then the order will be given to march out. The Court Orderly (the equivalent of an usher) will order the defendant and escort to salute and then march out of the court room.

Military Correction and Training Centre

Sentences of Military Detention (unless very short) are completed at the Military Correction and Training Centre at Colchester. At this point the defendant is treated regardless of rank as a private soldier (or Navy/Air Force equivalent) and is posted to one of two companies – A or D. A Company is made up of those who will return to military service at the end of their sentence and focuses on training to ensure that they are an asset when they return to their unit. D Company is for those who have either been discharged and will either serve their entire sentence in MCTC or will be transferred to a civilian prison on discharge. Training here is focused on skills for use in civilian life. MCTC is not a prison and therefore the regime is very different. However there is still a process of moving from an open to a closed regime and further incentives for good behaviour including remission of up to 1/6 (sentences of 90 days plus) of the sentence in addition to automatic remission of 1/3 on sentences of over 36 days.

Written by Matthew Bolt

Matthew Bolt is the Membership Secretary of the Association of Military Court Advocates. He recently completed the Bar Professional Training Course at Kaplan Law School and is currently seeking pupillage.