Sgt Nightingale – background information

Sgt Nightingale – background information

10
SHARE

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.”

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

10 COMMENTS

  1. I don’t understand how there can be less than a minimum sentence. “Less than the minimum” is an oxymoron. Where can I read the judgment, that explains HOW the court avoided imposing the “minimum” sentence.

    If the court wanted to be lenient, whilst keeping to the letter of the law, why didn’t the court just sentence him to five years, and then suspend the long sentence, but for a very short period – a merely nominal period, e.g. three months?

  2. John, thanks for your comments. There is a link to the transcript above – that is the record of the proceedings, including the reasons for the sentence. The link is: http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/nightingale-proceedings-0607112012.pdf

    To answer your questions, Parliament decided that it was necessary to allow a court a degree of discretion when sentencing for an offence which attracts a minimum sentence. This is to avoid unfairness when cases with wholly unique facts come before the courts.

    In order to go below the minimum, the court must be satisfied that there are exceptional circumstances. See Dan’s post on minimum sentences: http://ukcrime.wordpress.com/2012/10/11/148/ Where exceptional circumstances are found, the court then must impose the appropriate sentence. This could have been a suspended sentence.

    The reason why the court could not sentence him to 5 years and then suspend it, is because only sentences up to 12 months can be suspended. See Dan’s post here on suspended sentences: http://ukcrime.wordpress.com/2012/10/11/suspended-sente/

LEAVE A REPLY