Tag Archives: Firearms

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.

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Sgt Nightingale wins sentence appeal – Immediate release

Today, Sgt Nightingale appealed the sentence imposed for two firearms offences. The background to the case can be found here.

The Appeal was heard by the Lord Chief Justice Lord Judge, Mr Justice Fulford and Mr Justice Bean sitting as the Court Martial Appeal Court.

Sgt Nightingale’s solicitor, Simon McKay, stated that an appeal against conviction would follow, most likely to be heard in the new year. It is unclear on what basis the conviction appeal will be put, however, it would appear that Sgt Nightingale would need to vacate his plea.

The Judgment

Remarks have not yet been published, however it is understood that:

a)      Leave to appeal conviction was granted and the hearing was adjourned,

b)      Appeal against sentence granted, with the 18-month sentence reduced to 12 months, and suspended for 12 months.

 

Comment

It is currently unclear on what basis the sentence appeal was successful, however the result is one that many predicted. Dan Bunting was adamant from the beginning that Sgt Nightingale would win his appeal and sentence would be reduced to effect his immediate release.

I stand by my view that the offence is a serious one and should, in light of the comments in R v Avis (guideline case on firearms offences), receive a lengthy period of imprisonment.

It is not possible to comment on the reasons for the judgment as they are currently unclear, however they will certainly make interesting reading and Uk Criminal Law Blog will have an analysis up in due course.

 

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.”

Custodial sentence for solider who kept firearm given to him by Iraqi Army

Picture taken from The Telegraph.

Sgt Danny Nightingale, a sniper in the SAS, was given an 18-month custodial sentence for possession of a firearm which was presented to him, reportedly for ‘outstanding service’, by the Iraqi Army.

As usual, in the absence of sentencing remarks, the following comments are based on news reports. However, we can make a number of assumptions which can help us understand the offence and the sentence.

The offence

The first thing to note is that this offence was dealt with in the military courts rather than the civilian courts. The military courts are called the Court Martial (not Courts Martial or Court Martials). The reason that there are separate courts for those in the armed forces is that there are different considerations which are best dealt with by those who have knowledge and expertise in the military. A post dealing with the Court Martial will follow this post.

Sgt Nightingale pleaded guilty, allegedly on the advice of his legal representatives. The offence to which he pleaded appears to be the Firearms Act 1968 s 5(1)(aba), which 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’. 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. From the news reports available, it looks as though the correct offence was charged as it would have been wrong to suggest any intention to use the firearm.

The offence attracts a minimum 5-year sentence unless there are exceptional circumstances present. See here for more on minimum sentences. What is important to note is that a guilty plea does not allow a court to reduce the sentence below the 5-year minimum, unlike other minimum sentencing legislation.

The facts

The Telegraph reported that the prosecution stated that Sgt Nightingale was ‘a serviceman of exemplary character, who had served his country for 17 years, 11 in the special forces.’

Further, the court was told that he returned to Britain in a hurry after two friends were killed in Iraq, leaving his equipment, including the pistol, to be packed up by colleagues.

It was accepted that the weapon was a gift and that Sgt Nightingale had suffered severe memory loss, after collapsing 30miles into a 200m fundraising trek in Brazil. A forensic psychologist said that Sgt Nightingale ‘probably had no recollection that he had the gun’, however the Judge Advocate did not accept this. This factor will have had an impact on his sentence.

Simon McKay, representing Sgt Nightingale, said “I consider the sentence to be excessive and the basis of the guilty plea unsafe. It is a gross miscarriage of justice and grounds of appeal are already being prepared.”

The sentence

The sentence given to Sgt Nightingale was one of 18-months service detention. The Court Martial has a range of sentences open to it. See here for a list.

For service detention to be imposed, the Court Martial must be of the opinion that the offence is serious enough to warrant detention, (Armed Forces Act 1006 s 242(1)). This requires the court to take account of all the factors. In this case, this will have included the type of weapon, the way in which Sgt Nightingale came to be in possession of the weapon, how long he held the weapon for, how the weapon was used (or not used), the intention that Sgt Nightingale had (if any) and his previous record. Many of these considerations were set out by the Lord Chief Justice in the leading case of R v Avis 1998 1 Cr App R 420.

There is also the usual requirement that the sentence must be for the shortest period commensurate with the seriousness of the offence, as in a civilian court. In addition, there is a 2-year maximum for sentences of service detention.

The Court Martial must have considered that there were exceptional circumstances allowing them to pass a sentence lower than the minimum 5-year term. It is to be assumed that they considered the appropriate starting point (after considering the facts) was in the region of 25 months – it is not clear how much credit was given for the guilty plea. With a reduction for the plea, 18 months was deemed the appropriate sentence. This enabled the Court Martial to impose service detention rather than imprisonment, as it was below the 2-year maximum sentence.

Practical effect of the sentence

Sentences of service detention are usually served at the Military Corrective Training Centre in Colchester. Very short sentences may be served in unit guardhouses. There is automatic remission of ⅓ of the sentence where the sentence is over 36 days. Additional remission can be earned on sentences over 90 days at the discretion of the Commandant Military Training Centre, up to a maximum of 1/6 of the sentence. Detainees are not paid during their sentence and are reduced to the lowest possible rank for the duration for the remainder of the sentence.

Comment

Whilst the full facts remain unclear, it is understandable why many see the prosecution, and indeed the immediate custodial sentence, as a ‘miscarriage of justice’. That being said, it is important to remember that Sgt Nightingale was unlawfully in possession of a prohibited weapon. The need to prohibit the possession of weapons such as this is self-evident. I therefore see no reason why the prosecution may have been discontinued, despite the claims of many that Sgt Nightingale has been betrayed – are service personnel not subject to the law also? Presumably there aren’t many who are advocating the discontinuation of the prosecution of the 5 marines charged with murdering an injured Taliban fighter.

As stated in the news reports, it was hoped that the court would be lenient, considering that absence of many aggravating factors, and in light of Sgt Nightingale’s distinguished service career.

Expect an appeal against sentence, and according to Sgt Nightingale’s legal representative, an appeal against conviction.