Tag Archives: Nightingale

Sgt Danny Nightingale refused permission to appeal conviction

nightingale

Introduction

On 20 May 2014, Sgt Danny Nightingale was refused leave to appeal against his conviction.

What does that mean?

When someone wants to appeal against conviction or sentence, they have to apply for permission. This is reviewed by the Single Judge (a High Court judge who looks at the case papers but doesn’t hear any oral argument) and permission is either granted or refused.

If permission is refused, the appellant has the opportunity to ‘renew’ the application before the full court. This means that the application goes before the court (in front of two or three judges, as appropriate) for an oral hearing. At that hearing, the appellant must apply for permission to appeal again. If it is granted, the court then hears the appeal, if it is refused, that is the end of the line.

We have a fact sheet on the appeals process which contains further details.

Ok, so remind me of the history of the Nightingale case…

Well, where to start? But in essence…

  • He was charged with possession of a prohibited weapon and ammunition.
  • He pleaded guilty and was sentenced.
  • We have a short post on the basic background up to this point here.
  • He appealed against his sentence, and was successful.
  • See here for a post about the sentence appeal.
  • He then applied to vacate his plea (withdraw it, essentially) so that he could plead not guilty and have a trial.
  • He then made an abuse of process application – an attempt to stop the trial from proceeding. See our post on that, here.
  • He was tried and was convicted at the retrial. We have a fact sheet on that here.
  • He was then sentenced (again).
  • It now appears that he appealed against his conviction, again. See here for an ITV news report.

So what happened?

It is our understanding that Nightingale applied for permission to appeal and was refused by the Single Judge. We then believe that he renewed that application before the full court, led by the Lord Chief Justice.

That application was refused – Nightingale failed in his attempt to have a full hearing about his appeal.

The court will have reviewed the grounds of appeal – the reasons why Nightingale says his conviction is unsafe – and decided that the conviction was safe.

And what happens next?

Well, that will most likely be the end of the line for Nightingale. There is an avenue to appeal to the Supreme Court but that has to be on the basis that there is a point of law of general public importance. On the information we have seen, it would appear that this is not such a case. Further, this can only be a possibility where the Court of Appeal grants leave to appeal and then dismisses the actual appeal. Here, it seems that the Court of Appeal simply refused to grant permission to appeal.

So Nightingale is left with a conviction for firearms, and thousands upon thousands of pounds of public money (to pay for the court time) and Nightingale’s supporters’ money (to pay for his lawyers) has been spent.

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Danny Nightingale retrial sentence – 2 years imprisonment (suspended) – updated

Introduction

Sgt Danny Nightingale attended his Court Martial in Burford on 25th July 2013 to be sentenced for possession of a firearm and ammunition. Coverage of the conviction (and some of the issues that may have arisen at the sentencing here) is here, and we have full background to the Nightingale case here.

Judge Advocate General HHJ Jeff Blackett sentenced him to 2 years imprisonment (called military detention), but suspended for 12 months. His original sentence was 18 months detention (immediate), but this was reduced to 12 months suspended. Although Sgt Nightingale walks away from Court a free man today, this is an increase on his original sentence.

This is a very high profile case with a lot of media interest. When the dust has settled (and the sentencing remarks available) we will return to this and update the post. One question that had been debated is whether a higher sentence can be imposed and it seems that the answer to that was ‘yes’.

Why was the sentence passed?

Unusually, the sentence here can be criticised in two ways. There are reasons why it is too long, and reasons why it is too short. Sounds odd? The starting point is the sentencing remarks.

Why the sentence is too short

The Judge indicates that the starting point is the mandatory minimum – 5 years. A sentence lower than that can only be passed if there are ‘exceptional circumstances’. As we have noted before, this is a very narrow test – it will only apply in a very small number of cases.

Four exceptional circumstances were identified in this case by the Judge :

1. You were an outstanding Senior NCO who has served with distinction in the elite regiment of the British Army.  You have served on a number of operational deployments where your conduct has been exceptional;

2. Not only have you done your duty, but you have also done more to improve the medical care of those who receive traumatic injury by developing the Nightingale dressing;

3. You suffered a brain injury in 2009 which has had some effect upon you – while the court has rejected your assertions of confabulation about the pistol and ammunition we accept that you do have some mental impairment which may have affected the way you failed to decommission the pistol or return the ammunition;

4. You had no criminal intention – you found yourself in this position because of poor administrative practices and possibly forgetfulness. 

First off, it should be noted that it is (at the very least) questionable whether these circumstances, either individually or taken together, can amount in law to ‘exceptional circumstances (see the list in the case of Downes referred to above).

To the extent that Sgt Nightingale got a large reduction from 5 years to 18 months first time round he was very lucky. Of course, this time around he did not have the ‘credit’ for a plea of guilty as he had a trial and the Court were sure that he was not telling the truth.

Looking at all that, the ‘appropriate’ sentence (the one that one would expect) is one of at least 5 years. To that extent, 2 years suspended is a ‘touch’.

Why the sentence is too long

However, as we pointed out, the usual rule is that one cannot get a higher sentence after a re-trial than on an original trial. The Judge got round this in Sgt Nighingale’s case by referring to the case of Skanes [2006] EWCA Crim 2309 (not available on-line unfortunately). This case (not widely known) did throw doubt on whether this usual rule applied in a case where someone pleaded guilty. Mr Skanes was charged with rape and other offences. He pleaded guilty to the rape, got 7 years, and the remaining charges were not proceeded with.

He then appealed on the basis he hadn’t been advised properly, he succeeded, and was tried on the rape and other offences. He was found guilty of them all and got ten years. The Court of Appeal refused to reduce it. They didn’t quite engage with all the issues, making the sentences for the other offences 3 years consecutive to the 7 years for the rape.

Whether this applies to Sgt Nightingale is questionable. It seems to me that the Court Martial would have been bound by the actual sentence imposed first time around by the Court of Appeal. For that reason, as 2 years is longer than the original sentence, and the sentence as varied by the Court of Appeal, it is too long.

In fairness, it seems that there is a separate ruling in relation to this that will be be released in due course. It may be that that makes the position clearer.

Conclusion

All in all, this seems a sensible and fair way of dealing with the case. It marks the seriousness of someone having a deadly firearm with lethal ammunition, but recognises the mitigating factors. Sgt Nightingale can, for reasons we have already said, consider himself fortunate that he didn’t get the 5 year minimum, but hopefully this will be the end to a long and sorry saga.

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.

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 – conviction quashed with a retrial directed

nightingale

The full facts are here.

The sentence appeal is here.

Sgt Nightingale appealed his conviction on the basis that his plea was entered as a result of pressure place upon him as a result of an indication of sentence – not requested – given by the Judge.

The transcript is available from CrimeLine here. Some edited sections are below:

“We agree with Mr David Perry QC that no criticism can be made of a judge seeking to make clear to himself, or seeking to clarify for his own purposes, the appropriate legal sentencing framework and to seek the assistance of one or both sides for such a purpose. If all that had happened was no more than an enquiry to discover the relevant sentencing parameters, there would be no ground for criticism.

However, in our judgment, from a reading of the relevant passage of the transcript it seems abundantly clear that the Judge Advocate gave an uninvited sentence indication.”

The Court felt that pressure was placed on Sgt Nightingale to plead guilty:

“As we see it, what was being conveyed was that the defendant would be looking at a sentence of, or close to, the minimum statutory term if the case was fought, and certainly no longer than two years (and probably shorter) if he pleaded guilty; and that if he pleaded guilty he would have the advantages of serving his sentence in military detention rather than a civilian prison and with the possibility (no more) that his military career could continue.”

Sgt Nightingale’s counsel in the Court Martial gave a statement saying:

“It was accordingly my duty to advise the appellant as to my understanding of what had transpired in court. I did so. What was very different following those remarks was that the court had made it plain that if the appellant fought the trial and lost he would lose the exceptional circumstances required to avoid a minimum five year sentence of imprisonment. The stakes were thus clarified.”

The situation was that Sgt Nightingale felt he had no option but to plead guilty. The Court said:

“Having reflected on the facts in this case, we conclude that the appellant’s freedom of choice was indeed improperly narrowed. Accordingly, the plea of guilty is in effect a nullity. It will be set aside. The conviction based on the plea will be quashed.”

“There is sufficient material here to require the issue to be considered fully. Accordingly, we shall order a trial to take place before a Court Martial on the basis of the present indictment.”

The conviction was quashed and a retrial in the Court Martial ordered. As ever, we will keep our ear to the ground and report back regarding the retrial.

Unfortunately, this tells us nothing as to what Sgt Nightingale’s defence will be at the Court Martial retrial. There is an interesting point in relation to guilty pleas entered on legal advice which may be the subject of a post at a later date.

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.

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.