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.