Tag Archives: Re-trial

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.

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Discharging the Pryce jury – Will Sweeney J’s decision prove costly?

Image courtesy of http://www.futurity.org

The first trial and the jury’s questions

On 5 February 2013, Vicky Pryce stood in the dock at Southwark Crown Court, charged with perverting the course of justice. Her ex-husband, Chris Huhne, had pleaded guilty on rearraignment the previous day to the same offence. As has been well documented in the press, both Hunhe and Pryce accepted that Pryce had ‘taken’ Huhne’s penalty points for a speeding offence; Pryce pleaded not guilty on the basis of marital coercion.

The trial ran into its third week and the jury were sent out to consider their verdict. After almost 14 hours, they returned with a list of questions – a somewhat unusual occurrence in itself – which caused much speculation and debate, not least about the reliability of the jury trial as we know it.

The questions included ‘Can you define what is reasonable doubt?’, ‘Does the defendant have an obligation to present a defence?’, and perhaps most worryingly, ‘Can a juror come to a verdict based on a reason that was not presented in court and has no facts or evidence to support it, either from the prosecution or defence?’.

Mr Justice Sweeney sent the jury home for the evening and discussed with counsel the answers that he would give. Andrew Edis QC, prosecuting, asked for the jury to be discharged on the basis that the questions indicated that it was “ultimately unlikely” that any verdict could be said to be a safe and proper one.

Edis said: “Overall the picture is not reassuring as to the extent to which this jury has truly understood its task at this now very advanced stage of their deliberations. It’s surprising they are still struggling with this very basic concept of jury trial.”

The following morning, Mr Justice Sweeney answered the jury’s questions; he referred to the 17-page written directions he had provided to the jury before they retired. He then said:

“If for any reason one or more of you feel less than confident that you understand and are able to apply my directions of law, then it would be wholly wrong for any juror in that position to reach a verdict one way or the other.”

If after further consideration you find yourselves in a position that you are simply not able to agree, no matter how much longer you continue to debate and that’s going to remain the position then you must, of course , have the courage to say so by your foreman sending me a note to that effect.”

The jury subsequently (after more than 15 hours considering their verdict) passed a note to the Judge stating that it was “highly unlikely” that they would reach a majority verdict (the majority direction being given some hours earlier).

Undoubtedly, some of the questions showed a lack of understanding. I happen to think that is not necessarily a problem and support the view that David Allen Green proffers in The Observer; the jury should be commended for daring to ask questions. However, as I said to David on Twitter, I would prefer a jury who listened attentively in the first place; as Sweeney J stated, all of the questions were answered in his written directions.

Discharging the jury

In response to the jury’s note indicating that they were unable to reach a verdict, Mr Justice Sweeney said:

“I have received your note which indicates that it is ‘highly unlikely’ that you are going to reach even a majority verdict. I am grateful for that.

“Against the background of the length of time that you have been in retirement already, I have decided therefore, and it is my decision one way or the other, that I must discharge you from any further deliberations.

“That means that your role in this case is now over.”

After the jury had left court, Mr Justice Sweeney said,

“In 30 years of criminal trials I have never come across this at this stage, never.” and stated that the jury had shown a “fundamental deficit in understanding” of its role.

The prosecution quickly indicated it’s intention to seek a re-trial.

Despite Sweeney J’s decision, there was a feeling that his comments (when answering the jury’s questions) relating to the jury being unable to reach a verdict and having the ‘courage’ to indicate so were a thinly veiled encouragement to do so. This was reinforced by his comments (recited above in part) to the effect that the jury had not grasped the fundamentals of their role – a concern for any judge, defence or prosecution advocate.

A re-trial

Where a jury cannot agree on a verdict, the prosecution are entitled to seek a re-trial. In fact there is a presumption that they will do so.

CPS Guidance suggests that the following will be considered when determining whether a re-trial is sought:

a) The merits of the case (realistic prospect of conviction, availability of witnesses etc.)

b) Likely reasons for the jury’s failure to reach a verdict (was the failure ‘perverse’?)

c) The public interest in seeking a verdict (seriousness of the offence, likely sentence if convicted, consequences of not proceeding etc.)

d) Interest/views of the victim (obviously not relevant here)

e) Views of trial judge, prosecuting counsel and the police

What is the situation if a second jury cannot agree on a verdict in Vicky Pryce’s case?

A second re-trial?

It is common practice that the prosecution offer no evidence against a defendant where two juries have failed to reach a verdict…but no more than a convention, Bowe v R 2001 6 Archbold News 3 per Lord Bingham.

His Lordship continued to state that whether a second re-trial would be oppressive and unjust depends on a dispassionate assessment of how the interests of justice are best served. He also stated that ‘full account must be taken of the defendant’s interests’.

In R v Bell 2010 EWCA Crim 3, the court, led by the Lord Chief Justice, said that a second retrial should only be sought in a small number of cases involving a crime of extreme gravity which had undoubtedly occurred and in which the evidence that the defendant committed it on any fair minded objective judgement remained powerful.

CPS Guidance reflects the authorities listed above and lists examples of witness interference and additional evidence not available at earlier trials as exceptional circumstances.

Repercussions?

Returning to Pryce, whilst it may be possible to argue that there are exceptional circumstances, it is hardly an easy case to make and it may be that the prosecution decide it is an inappropriate course to take.

With that in mind, was it an error of judgement to discharge the jury for failing to reach a verdict as opposed to acceding to Andrew Edis QC’s submission that as the questions posed by the jury showed a fundamental misunderstanding of the role and function of a jury, no verdict could be said to be a proper one?

Time will tell.