Court martial – Guidelines – Firearms Act 1968
R v Nightingale: Court Martial Appeal Court (Lord Judge CJ, Mr Justice Fulford and Mr Justice Bean (judgment delivered extempore)): 29 November 2012
The defendant was a sergeant in the SAS. He was a family man and was held in high regard by his colleagues. He was an exemplary soldier and had seen service in Northern Ireland, Bosnia, Iraq, Afghanistan and Syria, amongst other places. Whilst the defendant was serving in Afghanistan, police officers searched the accommodation he shared with another officer and found a Glock automatic pistol in full working order with three magazines suitable for use. The pistol had been given to the defendant by Iraqi special forces whilst he was in Iraq as a mark of respect.
The defendant's kit, including the pistol, had subsequently been packed by others and had been sent back to the UK. The defendant had intended to have the pistol deactivated and mounted as a souvenir for the squad. However, he had never got around to it. He had continued his military duties which included his responsibilities as a training officer, for which he had been supplied with ammunition for use in training and had originally been in lawful possession of the ammunition found in his room for that purpose. However, he had been required to return any surplus and not bring it back home.
In September 2009, the defendant participated in a jungle marathon which took place over five days and involved a distance of 220km in order to raise funds to assist soldiers. He collapsed at the end, was in a coma for three days and suffered significant brain injuries which caused him particular difficulties with his memory. The expert's opinion was that such difficulties had made a significant contribution to his continued failure to decommission the pistol. There was no evidence of any intent on the part of the defendant that the pistol should be used for any criminal purpose. In November 2012, the defendant pleaded guilty to possession of a prohibited firearm (count 1) and possession of ammunition (count 2) and was sentenced by the court martial to 18 months' detention on count 1 and six months' detention on count 2, to be served concurrently. He appealed against sentence.
He submitted, amongst other things, that the sentence was manifestly excessive and invited the court to apply the principle of justice tempered with mercy. Consideration was given, amongst other things, to section 51A of the Firearms Act 1968, as amended by section 287 of the Criminal Justice Act 2003 and the minimum sentence of five years' imprisonment that was required to be passed on an adult offender convicted of his first offence, unless there were exceptional circumstances justifying a lower sentence (the five year statutory minimum term). The appeal would be allowed.
On the facts, the judge had been correct to recognise that there were exceptional circumstances which justified the imposition of a lesser sentence than the five-year statutory minimum term. The offences had been committed in exceptional circumstances by an exemplary soldier. The question was accordingly whether the sentence imposed had made sufficient allowance for the particular circumstances of the defendant. The pistol and ammunition had come lawfully into his possession and his continued possession had not been motivated by any short or long-term malevolence. The offence had been one of great folly, but it had not been undertaken for personal gain.
There was little doubt that the defendant's sensitivity to the urgency of the need to remove the pistol and ammunition would, as a result of his illness, have become less immediate; he would not have forgotten all of the time, but would have been less focused on what he continued to keep at home. The custodial sentence would be reduced to twelve months' detention and would be suspended for twelve months. The defendant would accordingly be released immediately.
William Clegg QC (instructed by McKay Law Solicitors, Leeds) for the defendant; David Perry QC and Colonel Charlie Barnett (instructed by the Service Prosecuting Authority) for the Crown.