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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Nightingale, R. v  EWCA Crim 405 (13 March 2013)
Cite as:  EWCA Crim 405
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B e f o r e :
MR JUSTICE MACKAY
MR JUSTICE SWEENEY
|R E G I N A|
|- v -|
|DANNY HAROLD NIGHTINGALE|
Wordwave International Ltd (a Merrill Communications Company)
165 Fleet Street, London EC4
Telephone No: 020 7404 1400; Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
Mr David Parry QC and Colonel Charles Barnett
appeared on behalf of the Crown
Crown Copyright ©
THE LORD CHIEF JUSTICE:
"Can you just for my assistance confirm which of these [charges] engages, if not both of them, engages section 51A in the Firearms Act with a mandatory custodial term?"
The mandatory custodial term is five years' imprisonment. Colonel Barnett, who appeared for the Service Prosecution Authority, told the Judge Advocate that the relevant mandatory term related to the first charge, but he went on:
".... subject, of course as you will be well aware, you will recollect [a reference to the case of Sergeant X] that in exceptional circumstances, which I think we would have little difficulty in concluding will apply, the authorities provide that it does not have to be applied in these situations."
It is clear from that observation that the prosecution took the view that, notwithstanding the statutory minimum mandatory sentence, there were circumstances in the appellant's case which would in due course be highlighted which would enable the Court Martial, if so advised, to impose a sentence that was somewhat lower than the minimum mandatory term. The Judge Advocate immediately referred to "the previous matter". He then sought to draw what we regard as an important distinction. He said:
".... that of course was a guilty plea and I see this at the moment it is a not guilty plea to both charges."
The Colonel, sensibly and carefully, said:
".... the simple answer, your Honour, is that it is the first charge only."
That response should have closed down any further discussion. However, the Judge Advocate continued:
".... I see, and just to make sure that I have got it right, is that should this matter be found .... a guilty finding be found, then in relation to it, if exceptional circumstances do not apply then there is no reduction for a guilty plea on --
COLONEL BARNETT: That is correct, your Honour."
There is something of a problem about precisely what the Judge Advocate said. It may be that the transcript is defective, because there is a moment where he may not have been heard and there are legal complications about a guilty plea counting on its own as an exceptional circumstances for the purposes of reducing a sentence below the statutory minimum. But the Judge Advocate was there highlighting some of the problems that would arise for the defendant (as he then was) if there was a finding of guilt: ".... if exceptional circumstances do not apply [that is five years' imprisonment], then there is no reduction for a guilty plea", and the interruption occurred. The Judge Advocate continued:
"And it is a significant period of imprisonment."
(That may or may not have been a reference to the minimum mandatory term or to a term of imprisonment after making allowance for exceptional circumstances.)
"All right, well it seems to me that it is very sensible that both counsel continue to look at this with, hopefully, achieving a way ahead."
"Achieving a way ahead", in our judgment, implies that the Judge Advocate was referring to proceeding without a trial. Mr Winter applied for more time. The Judge Advocate acceded to his application and said that "things should have become clear to both counsel". Mr Winter said "They certainly will have crystallized", and the Judge Advocate ended the discussion:
"Mr Winter, you are aware that I dealt with the previous matter, I am sure, of this nature."
That was a clear reference to the sentence of two years' detention that had been imposed on Sergeant X. That is of particular significance because if, as seems to have been accepted on all sides the appellant's position was less culpable than that of Sergeant X, on the basis, following a guilty plea and exceptional circumstances, all of which applied in the case of Sergeant X, the sentence on the appellant would reasonably be expected to be lower than two years. There is a further consideration: the significance of a sentence of two years or less is that it would be served in military detention, not in a civilian prison. Indeed, that might also have the consequence that, notwithstanding the conviction, the appellant might be able to continue with his military career.
".... I understood the observation [about Sergeant X] to be a reference to the fact that the Judge Advocate that the appellant's sentence should not be any longer than that imposed on Sergeant [X] no doubt in the light of the delay in the entry of any guilty plea.
It was accordingly my duty to advise the appellant as to my understanding of what had transpired in court. I did so. What was very different following those remarks was that the court had made it plain that if the appellant fought the trial and lost he would lose the exceptional circumstances required to avoid a minimum five year sentence of imprisonment. The stakes were thus clarified."
Mr Winter said that he then saw the appellant. We have a contemporaneous note, which is accepted to be accurate, of part of what Mr Winter advised the appellant and some of the responses:
"Clearest indication to me that if you go to trial and Judge finds you guilty, you will get five years in a civilian prison."
"V rare that a judge does this/says this, but it was a very clear indication. You will not understand it. Judge used legal speak and not layman's terms. In legal speak Judge saying you get five years if guilty."
"DN [the appellant] understand what Judge was saying. 'If I fight this he will give me five years'."
"IW [Mr Winter]: 'Did you hear judge say he was judge last time -- that was a direct wink to me -- obvious.' IW suggesting judge wants case over with and a guilty plea not -- v strong possibility DN will not be given custody."
(There is a dispute about whether or not those words were used, but they do not matter for our purposes because there was then a discussion about Mr Winter's understanding of the Judge Advocate's comments.)
"SM [the solicitor] -- ultimately DN's choice -- we will fight on .... DN's choice."
The appellant's wife and father were present at the conference. They both suggested that the appellant could not risk five years in a civilian prison. His father said that he felt he had no choice, he must plead. Mr Winter said that, in his opinion, the judge made a very clear indication. He felt that the appellant's chances of success were now 10% if he went to trial By contrast:
"likely the judge will be lenient if plead now. SM -- DN's choice and family should discuss privately."
Following the discussion between the appellant and his family, the note continues:
"DN will plead -- can't risk five years."
MR CLEGG: My Lord, I have an application for costs from central funds.
(The court conferred)
THE LORD CHIEF JUSTICE: We agree with your application, but before you welcome it, there is a proviso. We think that this should be on a Legal Services Commission basis with leading counsel only. Is there any further submission you want to make?
MR CLEGG: My Lord, that is not the rule that has applied to such applications historically. The law has, of course, recently changed and were he to be charged subsequent to the change in the law, he would not be able to make any application at all. But if the principle is accepted that costs do go with the event, then in my respectful submission they should be taxed in the ordinary way and the taxing master or officer will allow what is considered by him to be reasonable costs. If the order is to be taxed, it follows that the taxation will only allow that which is reasonable, and therefore we would submit that that ought to be the rubric by which the order for costs is judged, and not any artificially imposed statutory figure that may well not be reasonable.
THE LORD CHIEF JUSTICE: We will come back to that, Mr Clegg, thank you. So far the only order we have made is that your client is entitled to his costs of the appeal. We will discuss the issue of taxation and let you know. Mr Perry?
MR PERRY: My Lord, your Lordships have been kind enough to indicate that the direction is that the defendant be charges of which he was convicted. My Lord, may I also seek a direction that he surrender to custody at the Court Martial on a date and time to be notified? It is simply to ensure that there is an obligation to ensure his attendance. My Lord, the power of this court to do that is derived from section --
THE LORD CHIEF JUSTICE: Mr Perry, he is not to be detained in custody, is he?
MR PERRY: No, my Lord, no. It is simply --
THE LORD CHIEF JUSTICE: It is administrative?
MR PERRY: My Lord, it is simply administrative to make sure that there is a legal obligation to attend, so that there can be no misunderstanding when the Court Martial convenes.
THE LORD CHIEF JUSTICE: Yes.
MR PERRY: My Lord, there are two other matters, if I may. In answer to my Lord, Mr Justice Mackay's question this morning, it appears by combination of the Court Martial Appeal Act and the Armed Forces Act, there is a power to amend the charges. Without turning it up, just so that everyone is aware, it is a combination of section 19(3) of the Court Martial Appeal Act and section 126 of the Armed Forces Act. Effectively, the power of the Director of Service Prosecutions is brought back into the appeal process.
My Lord, the final point is, of course your Lordships know that this matter has attracted a good deal of publicity. The Contempt of Court Act 1981 applies. It is not necessary for the court to make any order at all, but, my Lord, I simply mention that point because the proceedings, of course, are active as there is a retrial that has to take place. My Lord, that is just by way of observation.
THE LORD CHIEF JUSTICE: Thank you, Mr Perry.
(The court conferred)
THE LORD CHIEF JUSTICE: Well, Mr Clegg you are always persuasive. Mr Clegg, we are told that section 31 of the Court Martial Appeals Act says: "Costs of successful appeal. Where an appeal court allow an appeal, other than an appeal against sentence, they may, if they think fit, direct the payment by the Secretary of State for the costs to the appellant .... such sums as appear reasonably sufficient to compensate the appellant for any expenses properly incurred ...." and so on.
We will not specify from whom you may seek your costs. There is obviously a target. You have persuaded us that we should simply say: to be taxed in the appropriate way.
We shall order that the defendant surrender to the Court Martial at a date and time to be notified. As I made clear to Mr Perry, we do not think that that means that he should be remanded in custody, unless some new event crops up, which I am sure it will not.
MR CLEGG: My Lord, I am grateful. I noticed a degree of anxiety in the benches to the left of me and at the front at the mention of the Contempt of Court Act. This is not, of course, going to be a jury trial, and it would seem to me that nothing has been said in this court today that could not be reported if they were so minded to do so.
THE LORD CHIEF JUSTICE: I cannot think that anything that has been said by you or Mr Perry, or even by me, could constitute a contempt of court. One can bear in mind that this will be a military court -- a Court Martial Court with a judge presiding. I do not think the press will be too inhibited, Mr Clegg. Everything you say will be encaptured for future generations.