Sergeant Nightingale

Oliver Heald Excerpts

Tuesday 20th November 2012 Commons Chamber

[The Solicitor-General (Oliver Heald)]

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.

[Mr Brazier]

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.

[The Solicitor-General]

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 www.judiciary.gov.uk. 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.

[Dr Julian Lewis]

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?

[The Solicitor-General]

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.

[Simon Reevell]

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.

[The Solicitor-General]

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.

[Mr Brazier]

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?

[The Solicitor-General]

There is a whole range of circumstances in which cases can appear, but—

[Mr Brazier]

There is a service interest.

[The Solicitor-General]

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.