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Sergeant Nightingale

Volume 553: debated on Tuesday 20 November 2012

Motion made, and Question proposed, That this House do now adjourn.—(Greg Hands.)

In raising the case of Sergeant Danny Nightingale, it is a huge pleasure to see so many hon. Friends and hon. Members present. Indeed, some of them are hon. and gallant Friends. It is a particular pleasure to see on the Government Front Bench my hon. Friend the Solicitor-General, the Minister of State, Ministry of Defence, my right hon. Friend the Member for Rayleigh and Wickford (Mr Francois)—both of whom are extremely dedicated Ministers—and my hon. Friend the Member for Crewe and Nantwich (Mr Timpson), who is, of course, the relevant constituency MP, but who, as a Minister in another Department, cannot take part in the debate.

I want to make it clear that it is no part of my submission to suggest that special forces soldiers are in any way above or outside the law of the land. Instead, I shall argue that particular failings in this very hard case have led to a particular injustice. As a result, a dedicated and extremely brave man is in military detention, and his wife and small daughters face potential eviction from their family home, because they are unable to pay their mortgage.

Military justice was consciously modelled on civilian criminal justice. Originally, 12 officers echoed the 12 householders of repute on a jury, although the number became more commonly five 100 years ago. In the past 20 years, under pressure from the European Court of Human Rights, the system has been turned on its head and today a judge advocate chairs the court with up to five regimental officers who are no longer allowed to ask direct questions. My particular concern with regard to Sergeant Nightingale’s case relates to a further problem resulting from the abandonment of the old military justice principle that the composition of the court should at least in part reflect any special circumstances of the prisoner wherever possible. For example, in an aviation case there should be at least one pilot on the court panel. In the case under discussion, nobody on the court panel had any connection to special forces, the relevance of which will emerge in a moment.

The facts are as follows: Sergeant Danny Nightingale was presented with a Glock pistol in Baghdad in 2007 by grateful Iraqi colleagues. He returned early to this country from operations, accompanying the bodies of two comrades killed in action. A comrade packed his kit and it was returned to the UK under the supervision of the military police, who have a specific duty to check that there are no weapons in the equipment. The locked kit box sat in a cage that was also locked for two and a half years in his barracks. It was eventually moved, in its container, to the Army accommodation that Danny Nightingale shared with another sergeant.

Meanwhile, in 2009, Danny collapsed on a marathon that he was doing for charity in south America, suffering from a tropical illness that damaged his brain, affecting his memory. In 2011, when he had somehow managed to talk his way back on to operations, now in Afghanistan, the police raided his military digs after a tip-off from the other sergeant’s wife, who was in dispute with her husband. During the search, the police uncovered the weapon belonging to Danny Nightingale, which was still in its container in a cupboard, and a quantity of ammunition under his bed. I understand that the unit held an immediate weapons amnesty and that an embarrassingly large number of weapons turned up in the skip that was conveniently provided overnight.

Most parts of the Army have been engaged in dangerous and often bloody operations. Where special forces are different from the rest of the Army is that they do not leave that regime on coming back to the UK. Typically, as was the case with Sergeant Nightingale, they remain on very short notice to move for long periods, which entails keeping live ammunition in their kit. They are, of course, subject to the same law and the same internal rules as other parts of the Army, but the pressure and temptation on tired, overstretched men to take weapons and kit containing live rounds back to their accommodation is of a different order of magnitude. It is clear from the article by Sergeant Nightingale’s gallant former commanding officer, Colonel Richard Williams MBE MC, that the amnesty revealed that a number of people in the regiment had got into bad habits under the extreme pressure of operational tours abroad and the high-readiness cycle at home.

Let us look for a moment at the military equivalent of a public interest case, the service interest, which should be of interest to the Solicitor-General. We can split the narrative in half, with a break at the point when the weapon went outside the wire. It is undisputed that the weapon and ammunition came back under the supervision of others and sat for two and a half years in a locked cage in the base. Given the amnesty, surely no one could believe that that alone passed the service interest test, or even the public interest test. Indeed, my hon. Friend the Member for Beckenham (Bob Stewart) has revealed outside this Chamber that when he was presented with a working sniper rifle in Northern Ireland, he put it in a safe place in a barracks and took two years to get around to making it legal.

That leaves the second half of the process: the moving of Sergeant Nightingale’s kit and the depositing of it in his military digs a few months before he was redeployed. That occurred a long time after the incident in south America that had caused his brain damage, when he had somehow clawed his way back on to operations, dedicated soldier that he is.

At the heart of the transcript of the trial is a remark by the judge advocate:

“You say you forgot about it whilst it remained in your box in a cage. Whilst we accept that you gave little or no weight to it, we find it difficult to go on to accept it was out of your mind entirely. In 2009 you were involved in a very serious incident which resulted in serious injury, which we accept affected your memory to some extent. Nevertheless, mainly through your own determination, you had recovered sufficiently so that by October 2010 you were placed back on active service.”

One would have thought that that would have scored some brownie points.

Danny Nightingale has compelling medical evidence to show that his memory was severely impaired. Do we really believe that the second half of the offence—the transfer of the kit, en masse, to military digs after he had suffered the memory damage and when he was under huge service pressures—passes the service interest test? Is this what the military covenant is about? Does this amount to paying fair regard to the particular pressures of life in special forces and their effect on a man whose memory had been impaired and who had made his way back into action?

In his testimony, DCI Barnes of West Mercia police said:

“Apart from the unlawful possession no criminal intent had been established nor, more importantly, was it suspected...The two suspects—”

I have not dealt with the other sergeant—

“had fully co-operated with the investigation and provided detailed and frank accounts. Neither had any criminal record that might otherwise have influenced my decision-making process.”

Before the trial, I am told that Danny Nightingale was threatened by the judge advocate, using powers under the new system, that if he did not plead guilty, he would face a five-year prison sentence. It was as though he seriously believed that this case did not involve exceptional circumstances as set out in law.

Under pressure, Sergeant Nightingale pleaded guilty. Yesterday I visited him in military detention—Colchester is the one part of the military justice system that works really well. I found him subdued and saddened, but still with an impressive quiet strength that comes from a remarkable character. The judge advocate said in his reasons for sentence:

“you have an exemplary character…your offences come about primarily by way of your inaction.”

That is one way of putting it. This is a man who has served bravely for 17 years—the bulk of that time in the special forces—risking his life for his country again and again. As a medic he invented a new dressing, known as the Nightingale dressing, that is used in the British and American special forces and extensively in the NHS. He has never claimed a penny for it.

Sergeant Nightingale’s family are immensely grateful for the interest taken in this case by the Prime Minister, the Secretary of State for Defence and Members of this House. My hon. Friend the Solicitor-General has issued a statement, correctly stating that it would be improper for him to review a finished court case. I would be grateful if he would confirm whether, should an appeal be launched, it will be within his powers to discuss whether or not to oppose the appeal with the Service Prosecuting Authority. I urge him to review the service interest test for this case, and allow the planned appeal to go through unopposed.

I congratulate my hon. Friend the Member for Canterbury (Mr Brazier) on securing this debate, and thank him for allowing me to speak. I have sat on, and remanded men for, courts martial. I have allowed men to seek trial by court martial and I respect and understand the system. I see that it is not a normal court of law; it is not a judge and jury per se, but rather a panel of brothers, sitting in judgment on another brother, or indeed sister. My whole experience of courts martial has been one of admiration. I understand that Sergeant Nightingale has pleaded guilty to the charges laid before him, and that he has borne himself with dignity. I understand that his crime is a serious one. Paragraph 2.7 of the court-martial sentencing guidance of October 2009 points to operational effectiveness. It states that the court martial must take into account what is in the best interests of the service.

I have no doubt that, as Sergeant Nightingale has pleaded guilty, he expects some form of penalty to be imposed. I suggest, however, that that will operationally affect not just our special forces but every soldier, sailor, airman and Royal Marine who puts his or her life on the line for their country and understands that the country owes them a debt of honour. I ask my hon. Friend the Solicitor-General that, should an appeal be submitted, he will not seek to oppose it.

I am grateful to my hon. Friend the Member for Canterbury (Mr Brazier) for permission to take up a small slice of his time. This is the third occasion on which I have addressed this subject on the Floor of the House. Quite apart from the shocking individual circumstances that have brought as many as three dozen hon. Members to this House for an Adjournment debate—an exceptional outcome I am sure you will agree, Madam Deputy Speaker—one particularly disturbing part of this case has been the iniquitous effect of plea bargaining.

This was a man who believed he was innocent. He did not wish to plead guilty but did so in a plea bargaining process that led him to believe he would be given a light sentence, rather than face a heavy sentence of five years’ imprisonment—presumably without the 50% discount one gets in civilian jails in this country—if he continued to plead innocent but was found guilty. As a result, he was convicted, but unaccountably sentenced to 18 months, which, without remission, is equivalent to a three-year sentence given to someone in civil society.

I mentioned that I had raised the matter twice before on the Floor of the House. On the second occasion, I raised it with the Secretary of State for Justice, who wisely pointed out that, although it was outside the parameters of his normal area of responsibility, he would hope that a common-sense approach would be taken to such cases. He had the common sense to recommend common sense, which is what we are looking for from those on our Front Bench tonight. We are not looking for bone-headed rigidity, which can give not only military justice, but civil justice, an irreparably bad reputation in this country. When the appeal comes, it should not be opposed, and Sergeant Nightingale should be allowed to resume his career and his life with the honour he so richly deserves.

I am grateful to my hon. Friend the Member for Canterbury (Mr Brazier) for giving me the opportunity to speak.

Earlier this year, the court martial appeal court confirmed that the Attorney-General has a supervisory role as far as the Service Prosecuting Authority and the Director of Service Prosecutions are concerned. Ironically, it did so in a case when an unrelated search discovered trophy items and the SPA went out of its way to select charges that would protect the defendant from a draconian sentence at the end of his trial. The Attorney-General enjoys those powers because he has authority over anybody who prosecutes on behalf of the Crown. Forgive me, Madam Deputy Speaker; I should have declared that I have practised in the military courts for 20 years.

In light of the significant public concern regarding the circumstances in which Sergeant Nightingale was prosecuted, and given recent questions of judgment at the very top of the Service Prosecuting Authority—the contract of the Director of Service Prosecutions is not to be renewed—it would provide reassurance for all concerned if the Attorney-General reconsiders his decision of this morning not to conduct a review of the application of the service interest test. The decision to prosecute Sergeant Nightingale in respect of the Glock pistol has led to the debate and the circumstances we are discussing. The concern of a great many people is that, although on a simple analysis an offence may have been committed, the service interest was not properly considered before a decision was taken to mount the prosecution. If the Attorney-General takes the view that that is not so, all matters raised in the debate are for the court martial appeal court, but if his view is that the service interest test was not met, he would doubtless ensure that a view is taken by the prosecution not to oppose the conviction appeal in respect of the Glock pistol. The ammunition is perhaps a different matter, but the sentencing powers for that are different.

There are wider concerns. There is suspicion among many that there has been a miscarriage of justice, but there is a wider undermining of the military justice system when there is public outrage, and when the public question whether an individual should ever have been prosecuted in the first place. The Attorney-General is entitled to deal with that as soon as he chooses.

The Attorney-General is unable to be in the House this evening owing to a long-standing prior speaking engagement elsewhere in the country. I congratulate my hon. Friend the Member for Canterbury (Mr Brazier) on securing the debate. He has a great interest in defence matters and is respected in the House—he serves with great distinction on the Select Committee on Defence. I thank him for his work. He spent a number of years serving in the Territorial Army, and I am happy to reply to the debate.

In the light of public comments, it is understandable that colleagues are concerned. It is important that hon. Members know the facts. Sergeant Nightingale was charged with two offences: possession of a prohibited firearm, which is a serious offence, and possessing ammunition. At the hearing, he pleaded guilty to both offences. He was represented by a solicitor with considerable experience in this specialised field, and by an eminent Queen’s counsel.

As has been said, in 2011 a search was conducted of a house rented by the military where Sergeant Nightingale was living. This was an ordinary house in an ordinary road. It followed an allegation made against another resident. During that search 336 rounds of live ammunition were found in a box under Sergeant Nightingale’s bed. In the wardrobe was a Glock self-loading pistol—a prohibited weapon—which is designed to discharge 9 mm bulleted cartridges from a spring-operated box-type magazine. There were three empty magazines. The gun, and the ammunition for it, made a serious, dangerous and fully functional weapon. He was away from the house on operations and the weapon was not secure.

Sergeant Nightingale was interviewed by the police and explained that he had brought the pistol back on conclusion of operations in Iraq in 2007. He said that he had taken it from secured premises at his base to his home in January 2011. He accepted that he had obtained the ammunition in the course of his duties as a training officer and that he had not got around to handing it in, describing his administration and working practices as poor. It is right that he explained that the Glock came as a present from local nationals, that it was his intention to have it deactivated and mounted, and that he had not intended to keep the item in its present form.

My hon. Friend said that Sergeant Nightingale brought the pistol back from Iraq. He came back without his equipment, escorting the bodies of two comrades with his commanding officer, Colonel Richard Williams. His equipment came back separately—others packed it, under the supervision of the military police.

I was describing what he said in an interview. Of course, it is true—he made this clear and it was not disputed, as far as I am aware—that the property was moved from secure military circumstances to his home and that he was aware of that.

On Sergeant Nightingale’s state of health, it is right that in October 2009 he was running a jungle marathon and suffered a brain injury. That was serious and it is good that he was able to make a recovery and was declared fit for duty. The court martial set out the key facts, which it took into account in sentencing. That is a public document and is on the judiciary website I suggest that people read the whole of the court’s judgment. The judge advocate took into account the

“very great service over the years”,

and accepted a lot of what was said about the weapon and ammunition being kept in the mess and then moved to the home in January 2011, the point that my hon. Friend just made.

The reasons for sentence refer to the potential for very great harm when military weapons, especially combined with suitable ammunition, are kept in insecure accommodation. The court considered that he

“knew full well…that such items were never to be held insecurely at your home”.

The reasons for sentence are set out. It is important to bear in mind that with a prohibited firearm, which this was, Parliament has said that there is a minimum term of five years’ imprisonment unless there are “exceptional circumstances”. The court found that there were exceptional circumstances and imposed the lesser sentence.

We have an independent system of prosecution and trial, both for civilians and for members of the armed forces. The decision to prosecute was taken by the Service Prosecuting Authority. In deciding whether to prosecute, the SPA considers first whether there is a realistic prospect of conviction—clearly there was in this case, because there were full admissions and a plea of guilty followed—and secondly whether it is in the public interest and the service interest for that to happen.

Parliament has decided that this offence is so serious that a minimum term of five years must be imposed, except in exceptional circumstances. The more serious the offence, the more likely it is that the public interest will favour a prosecution. That is what the code for prosecutors states. It is difficult to see how the prosecutor could ignore this strong message, sent by Parliament, underlining the seriousness of the offence.

Did the police not decide that they did not wish to see a prosecution because no criminal intent was involved? Why should the military authorities take a different view?

There is a protocol that decides where these cases are tried. The advantage from the serviceman’s point of view of being dealt with by court martial is that it often does not result in loss of rank or dismissal. In this case, the court martial said it hoped it would be possible, first, for the sergeant to keep his rank, and, secondly, that he would not be dismissed from the service. Had it wished, it could have recommended the loss of rank and service, but it did not. That was the decision.

My hon. Friend the Member for Dewsbury (Simon Reevell) made a point about the role of the Attorney-General. In the case he referred to, it is true that the court said that if a judge was unhappy with a prosecution and felt it was not necessarily in the public interest, the judge could refer it and say, “Look, you should discuss this with the Attorney-General.” But that is at the beginning of the case, before a conviction. In a case such as this, where there has been a conviction and the court has moved to sentence, the only way of challenging the decision is for the person concerned to appeal. Under this system, the sentence in the court martial is made not just by the judge advocate but by the five serving officers on the board. They all have an equal vote. It is worth making the point that there was Army representation and that two of the five were warrant officers.

I have the advantage of having been in the court at the time. On the court martial appeal, the court said, “The Attorney-General has a supervisory role, an example of which would be”—and it then gave that example. It was not a restrictive role in the way that might have been suggested.

I have three minutes left, and superintendence is a complicated issue. There is statutory superintendence for the Serious Fraud Office and the Crown Prosecution Service, and there is a common law form of superintendence that applies to all prosecutions, but the Attorney-General cannot just say, “I’m stopping this prosecution.” The House would not want a situation where politicians can stop proceedings and where we move away from an independent prosecution service and an independent court system.

Like my hon. Friend the Member for Canterbury, I hold our armed forces in extremely high regard. They regularly put their lives at risk for our country, and we only recently remembered their sacrifice. Sergeant Nightingale has given great service over the years to the Army and the country, but the case was dealt with in accordance with the procedures and laws that Parliament has passed regarding the seriousness of weapons.

I am sure that my hon. Friend, in view of his own military service—this will apply to other hon. Friends here today—will understand instinctively the need to maintain the security of weapons and ammunition. In this case, possession of the weapon was prohibited by law because of the very nature of the weapon. It was being held insecurely, together with a large quantity of live ammunition, in an ordinary house, on an ordinary road. The way to challenge the conviction or sentence is to follow the correct procedure, which is to appeal.

May I suggest that my hon. Friend focuses on the Llewellyn case in Cardiff court, from as recently as 2008, where the Crown Prosecution Service, with none of the same mitigating circumstances, decided not to pursue the individual concerned for the two firearms found in the house?

But the first point I would make is that this is a particular offence—that of possessing a prohibited weapon, which we have said as a Parliament is an extremely serious matter. There were exceptional circumstances in this case; this is an exceptional man. However, if we want to challenge the decision of a court once it has been made—not at the beginning, when deciding whether to prosecute, but when the court has found the man guilty and sentenced him to a period of detention in a military facility—then I am afraid that has to be an appeal. That is our process; that is what we do in this country. We do not have politicians telling the independent judiciary—or, indeed, the independent prosecuting authorities—what to do. Much as I have a great deal of sympathy and understand the situation with this officer, I personally do not think that we can go around breaking important rules of that sort in this country.

Question put and agreed to.

House adjourned.