Sunday, 30 June 2013

Sgt. Danny Nightingale ~ Military justice under the microscope (1)

Duke of Lancaster's Regiment
Update 1st July - Court Martial to start hearing evidence


Sergeant Danny Nightingale will be on trial - for the second time - at the Court Martial sitting at Bulford Military Court Centre, 1st July 2013 at 10:00 am, before HHJ Blackett, Judge Advocate General - for the background to this case see Law and Lawyers 21st November 2012

In November 2012, the Court Martial Appeal Court altered Sgt. Nightingale's sentence to 12 months detention to be suspended for 12 months - judgment of the Court Martial Appeals Court - Lord Judge CJ; Fulford and Bean JJ - 29th November 2012.   Sgt Nightingale was told he would be freed immediately and was also granted leave to appeal against his conviction on the grounds that his guilty plea had been made on the basis of unsound advice. 

In March 2013, Sgt. Nightingale's sentence was quashed - (judgment - Lord Judge CJ; MacKay and Sweeney JJ)- and a retrial ordered.  The
conviction was quashed because of an unsolicited sentence indication by the trial judge - Judge McGrigor (Assistant Judge Advocate General) - which placed undue pressure on the defendant to plead guilty.  The Lord Chief Justice (Lord Judge) 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.'

 On 1st May, The Guardian reported that the retrial is set for July and that, at a preliminary hearing relating to the retrial, it had been ruled that there was no abuse of process in emails allegedly showing that prosecutors acted improperly.

For more on the Court Martial system see Ministry of Justice.  The Court Martial system was reformed by the Armed Forces Act 2006 Part 7 - (Explanatory Notes).    The main purpose of the Act was to replace the three separate systems of service law with a single, harmonised system governing all members of the armed forces.

It has been reported that Sergeant Nightingale is to be discharged from the Army on medical grounds and yet this retrial is set to continue despite the Army authorities being urged to discontinue the prosecution.  A further report was that Sgt. Nightingale might have to sell his home to pay for the costs of the retrial.   ITV has a collection of media articles relating to the case and to Sgt. Nightingale.

In a number of cases before the European Court of Human Rights, the court-martial system has been challenged on the basis of Article 6 (Fair trial) of the European Convention on Human Rights.  These cases resulted in Parliament making important changes to the system.  Links to the cases appear below.

Interestingly, it is HHJ Blackett who is to try Sgt. Nightingale.  Judge Blackett recently commented about certain aspects of the court martial process - BBC Radio 4 Law in Action.  Judge Blackett - who is the Judge Advocate General - told the BBC that the rules for military courts looked unfair and could be challenged in future cases.  Judge Blackett has written extensively on the court martial system - see Rant on The Court Martial and Service Law  and here.  

The title 'Judge Advocate General' is, in itself, of interest.  The post is a judicial one and is certainly not an advocate.  Some of the history is here.    

An interesting look at the Court Martial following the Armed Forces Act 2006 is available at KCH Garden Square.

Selected Cases that have Considered the Service Justice System:

Findlay v United Kingdom (1997) 24 EHRR 221

R v Boyd, Hastie and Spear, Saunby and Others [2002] UKHL 31and see the item at 1 Crown Office Row for comment about this case when it was in the Court of Appeal.

Cooper v UK (2004) 39 EHRR 8

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