Serving SAS sergeant Danny Nightingale has just pleaded guilty, so we are led to believe, to a charge of possessing a Glock 9mm pistol at his home, it having been found when police raided the house looking for evidence of a similar offence by another resident of the house.

Today, his wife, Sally, has been on radio and television highlighting his plight as he has been sentenced to 18mths military custody. The weapon was, apparently, a war trophy that was intended for display at Hereford but which was forgotten about due to a number of incidents that affected Sgt Nightingale, the most serious of which was recovery from a coma after which he suffered severe memory loss.

Sgt Nightingale could have pleaded not guilty. He certainly seems to have had reason to so plead as it wasn’t actually him that imported the weapon from Iraq (it was packed into his kit by fellow soldiers after he had gone on ahead to accompany dead comrades) and then was left with that kit in a holding secure area at Hereford. At some point this kit was moved to a home Sgt Nightingale had to occupy close to Hereford as he needed to be on standby, presumably the CTW team. He had forgotten that the pistol was there and had forgotten to hand it in, so in fact, he didn’t know of its presence and had a reasonable defence to a ‘possession’ charge. But he chose to plead guilty.

By pleading guilty at an early stage he would receive maximum discount off the sentence the Judge would normally impose. About 1/3 in this case. This suggests the sentence would have been two years but for his early guilty plea. If he had pleaded not guilty and been found guilty he would have received the full 2 years.

By pleading guilty he also minimised embarrassment to the regiment and to the Army. A decision to plead is always a gamble and set against the fear of a maximum 5 year sentence for this type of offence he may well have thought that the risk of being found guilty was too high. It is possible that his defence team may have weighed up the evidence of his innocence and suggested that this was better given in mitigation than as a defence to the charge.

The bringing home of war mementos has been a practice in all Armies around the world since the very first Armies existed. How many of us will have heard stories of our grand dads having an old Luger in the loft, of uncles with Nazi weapons? Just because we are in a modern times doesn’t mean that soldiers have stopped the practice. Sgt Nightingale intended to hand the weapon in but then forgot, due to a brain injury, but would the jury have concluded that he should have handed it in before that? We shall never know, as he took advice and decided to plead.

So, is 18 months excessive. I decided to look at the Ministry of Justice and CPS sentencing guidelines for this offence. This is what they say.

Section 1 Firearms Act 1968

Date Updated: January 2012

Title: Firearms

Offence: Possession of a Firearm/Ammunition without a certificate

Legislation: s1 Firearms Act 1968

Commencement Date:

Mode of Trial: TEW (triable either way, ie magistrates or crown court)

Statutory Limitations & Maximum Penalty:

• Possession of a firearm or ammunition without certificate is triable either way
• Summary – 6 months/maximum fine (in a magistrates court)
• On indictment – when aggravated (see section 4(4)) 7 years, otherwise 5 years. (in a crown court)
• Failure to comply with a condition of a certificate is triable only summarily – 6 months/level 5 fine

Aggravating and Mitigating Factors, some previous cases

R v Avis [1998] 1 Cr.App.R. 420, CA.

The sentencing court should usually ask itself four questions:

1. What sort of weapon was involved? Genuine firearms were more dangerous than imitation firearms; loaded firearms were more dangerous than unloaded firearms. Unloaded firearms for which ammunition was available were more dangerous than firearms for which no ammunition was available. Possession of a firearm for which there was no lawful use (such as a sawn-off shotgun) would be viewed more seriously than possession of a firearm which was capable of lawful use.
2. What use had been made of the firearm? It was necessary for the court to take account of all the circumstances surrounding the use of the firearm: the more prolonged and premeditated and violent the use, the more serious the offence was likely to be.
3. With what intention (if any) did the defendant possess or use the firearm? The most serious offences under the Act required proof of a specific intent. The more serious the act intended, the more serious the offence.
4. What was the defendant’s record? The seriousness of any firearms offence was inevitably increased if the offender had an established record of committing firearms offences or crimes of violence.

Relevant sentencing Guidelines (If any)

See R v Avis above

Relevant Sentencing Case Law

Hudson [1998] 1 Cr.App.R.(S.) 124
G plea to possessing a firearm without a certificate. D arrested on suspicion of assault. On searching his house police find a loaded sawn-off shotgun and cartridges. D said he bought the gun for protection. It was established the gun had never been fired.  5 years reduced to 4 years imprisonment.

Addison [1998] 1 Cr.App.R.(S.) 119
G plea to possessing a firearm without certificate x 4, possession of a shortened firearm without a certificate x 2 and possession of ammunition without a certificate. Police search of D’s work place and home address resulted in finds of six firearms in working order and ammunition. 5 years to 4 years imprisonment.

Holmes [1999] 2 Cr.App.R.(S.) 383
G plea before a magistrates’ court possession of a firearm whilst a prohibited person, possession of a shortened shotgun without a certificate, and possession of a loaded shotgun in a public place. Police find a loaded sawn off shotgun and ammunition in a hire car that was traced back to D. Sentenced to two and a half years imprisonment.

Herbert [2001] 1Cr.App.R.(S.) 21
G plea to possessing a shortened shotgun and to possessing a firearm before expiration of five years from release form prison. A search a D’s address revealed a sawn-off shotgun hidden in a bed with a number of live cartridges. D claimed to be ‘minding’ items for a man he was terrified of and received £50. At Newton hearing, basis rejected. 4 years imprisonment upheld although there was no evidence of any contemplated offence the court was entitled to assume that it was for an unlawful use should the occasion arise

Beaumont [2004] 1 Cr.App.R.(S) 393
G plea in the Magistrates’ Court to possessing a firearm without a certificate, ammunition without a certificate and possession of cannabis. Police search of D’s house and D seen to conceal a package that contained a single barrel 12 bore shotgun with barrel cut down. 23 cartridges also found. D said bought them for £100 and intended to wall mount gun. Held that there was nothing to suggest intention to use items in a violent way. 3 years reduced to 2 years imprisonment.

Scully [2006] EWCA Crim 466
G plea  to possession of a firearm without a certificate x 2, possession of ammunition without a certificate, possession of expanding ammunition  and possession of Class A and C drugs. Police had arrested D at his home address in relation to another matter when they find firearms, ammunition and drugs. Also found was a silencer. A sentence of three years imposed.

R. v Flitter [2010] 1 Cr.App.R.(S.) 85

The appellant pleaded guilty before a magistrates’ court to possessing a shortened shotgun without a firearms certificate, contrary to the Firearms Act 1968 s s.1 (1A) and 4(4). He was committed to the Crown Court for sentence. Police officers executing a search warrant at the appellant’s home found a gun split into three pieces, each wrapped in a towel, in a carrier bag concealed within a boarded-up fireplace, which was in turn hidden behind a wardrobe. In an outbuilding, officers found a box of shotgun ammunition although this could not have been used in the shotgun concerned. The shotgun was found to be in poor condition but in working order. The appellant pleaded guilty on the basis that he had purchased the shotgun lawfully in the 1980s when he had a firearms certificate. Following a conviction for possession of cannabis, the firearms certificate was revoked. The appellant surrendered one shotgun to the police but did not surrender the second gun because he forgotten about its existence. When he later came across the gun, he had not handed it in to the police as he was afraid he might be arrested. He cut the shotgun into pieces with a hacksaw to make it inoperable rather than to make it more dangerous. 24 months imprisonment upheld.

These make for rather depressing reading. It seems that criminals can expect the kind of sentence handed out to Dan Nightingale. But therein lies the point. These guidelines deal with criminals who are in possession of firearms that are, clearly, related to criminal activity. Dan Nightingale is not a criminal, he is a decorated soldier who has dedicated his life to the service of his country and yet, he has been treated the same as if he were a drug dealer or a bank robber.

I for one hope that he has the right to an appeal over this sentence and that a combination of public opinion, political pressure and an eloquent barrister results in him being freed, very soon. And I hope the Regiment keeps his job open in the mean time.

STOP PRESS; 20 Nov. Just heard from the campaign team that Dan is ‘locked down’ sixteen hours a day and that at the moment he is reading my novel! I’m made up.

http://www.amazon.co.uk/Wicked-Game-Matt-Johnson/dp/0957326904/ref=pd_rhf_gw_p_t_2