Sgt Nightingale – conviction quashed with a retrial directed

Sgt Nightingale – conviction quashed with a retrial directed

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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.

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

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