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

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

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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, also an appeal against conviction.

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Lyndon is the General Editor of Current Sentencing Practice and the Criminal Appeal Reports (Sentencing)

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