By Richard Norton-Taylor
Guardian – 21 November 2012
An SAS veteran of Iraq and Afghanistan will lodge an appeal on Wednesday against a decision to jail him for possessing a pistol and live ammunition at his home in Britain. Members of the special forces were angered when Sgt Danny Nightingale was jailed this month after pleading guilty to possessing a Glock 9mm pistol that he said was given to him after he left Iraq in 2007. Many rounds of live ammunition, including 50 armour piercing bullets, were also found at his home.
The father-of-two, who had been an SAS sniper, pleaded guilty on the understanding, his family and lawyers say, that he would get a lenient sentence, perhaps suspended. He was jailed for 18 months. Conservative MPs rallied behind the jailed SAS man on Tuesday evening after Dominic Grieve, the Attorney General, said it would be inappropriate for him to review the sentence handed down by the court martial. He raised the case in response to a request from Philip Hammond, the Defence Secretary, "to review whether the public interest test has been applied appropriately".
However, officials quickly made clear that neither the Defence Secretary nor the Attorney General could intervene in a case brought by the independent service prosecutor and decided by a court martial. A spokesperson for Grieve said it would be inappropriate for him to review "either the decision to prosecute or comment on the appropriateness of the sentence. That is a matter for the court martial appeal court, in due course".
Nightingale, 37, is being held at the military corrective training centre in Colchester, Essex. The Glock was a gift from Iraqi soldiers he had been training, the court martial was told. It had been packed up and returned to him by colleagues in Iraq, after he left the country in a hurry to help organise the funeral of two friends killed in action.
The court martial was told that Nightingale suffered a traumatic brain injury in 2009 which led to amnesia, and that he did not remember having the weapon. Nightingale's family said he was given a clear impression he would be given a long, perhaps five-year, jail sentence unless he pleaded guilty. If he did so, he would probably not get a custodial sentence. Defence officials stress that live ammunition as well as a pistol was found in the service accommodation where he lived with another soldier.
Simon McKay, Nightingale's solicitor, said:
"The Attorney General has supervisory responsibilities for the service prosecuting authority that brought the case, and in theory the Attorney General could direct that the appeal is unopposed and/or whether there ought to be a retrial if the convictions are quashed."
McKay said he was working with William Clegg QC, "one of the most experienced criminal silks in the country" and there was "a strong degree of confidence". McKay said he would be lodging an appeal against the detention on the grounds his client only pleaded guilty after being told he might otherwise be jailed for five years. He will also apply on Wednesday for bail for Nightingale.
Lt Col Richard Williams, Nightingale's commanding officer in Iraq, said concerns about an injustice appeared to be being taken seriously by the government. The Prime Minister's official spokesman said:
"The PM agrees that the Defence Secretary was right to pursue every avenue and make sure that the correct processes had been followed. The Attorney General has given his response."
During a debate on the case in the House of Commons, MPs demanded that ministers intervene and prevent military prosecutors from opposing Nightingale's appeal. Julian Lewis, the Tory MP for New Forest East, said the case highlighted the "iniquitous" problem of plea-bargaining, in reference to claims that Nightingale had been told he could face a five year jail term unless he pleaded guilty:
"It is common sense that we are looking for from our frontbench tonight, not boneheaded rigidity that can give not only military justice but civil justice an irreparably bad reputation in this country ... The appeal when it comes should not be opposed and this man should be allowed to resume his career and his life with the honour he so richly deserves."
Julian Brazier, Tory MP for Canterbury and a former member of the territorial SAS, said Nightingale had "risked his life for his country again and again". Turning to the Solicitor General, Oliver Heald, he said:
"I urge you to review the service interest test in this case and allow the planned appeal to go through unopposed."
Patrick Mercer, another Tory MP and a former soldier who had sat on court martial panels, said he respected the military justice system but claimed that the treatment of Nightingale had not been in the army's interests and could affect morale in the armed forces. He said:
"I would suggest that this 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 their country owes them a debt of honour."