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Cabinet row over imprisoned SAS soldier

20 November 2012

A lunchtime spat has broken out over Sergeant Danny Nightingale, the SAS serviceman who was sentenced to 18 months in prison by a court martial after pleading guilty to possession of a prohibited firearm (a 9mm Glock pistol) and ammunition.

Sgt Nightingale’s case has attracted wide public support. His friends and family said that the pistol, which was a ‘war gift’ from Iraqi soldiers he mentored in 2007, had not been packed by him, and added that a brain injury had made him forget that it was among his possessions. Supporters say that, owing to these facts, the sentence is unduly harsh.

The government’s hand has been forced. The Defence Secretary, Philip Hammond, wrote to the Attorney General, Dominic Grieve, asking for a review of the case. Minutes later, Grieve’s office replied, saying, with its standard tone of arch superiority, that:

‘It would be inappropriate for the Attorney General 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.’

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The pomposity of that statement has set plenty of tongues wagging in Westminster and elsewhere: Louise Mensch has described it as ‘inappropriate’ and ‘abominable’. Yet, technically, under the 2006 Armed Forces Act, Grieve is right to defer to the Court Martial Appeal Court because it exercises jurisdiction here.

The Act also stipulates how courts martial must impose mandatory custodial sentences on illegal firearm possession in line with the 1968 Firearms Act. (The CPS’ sentence guidelines, complete with aggravating and mitigating factors, are laid out here.) However, subsection 2 of section 227 of the 2006 Act also gives the courts martial a degree of discretion when applying sentences in ‘exceptional circumstances’.

The scope of the 2006 Act, and the processes it has introduced in courts martial, are now subject to a parliamentary debate, led by Julian Brazier, the Conservative MP and a former SAS reservist. The pressure over this affair appears to be on the military.

Update: Carl Gardner makes the invaluable point that it would have been wholly wrong for the Attorney General to interfere in prosecutions because of political and media pressure, and adds that the Ministry of Defence should not have published Philip Hammond’s letter to Grieve’s office.

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Show comments
  • Kenneth White

    It is sad to see the soldiers killed in combat being brought home and equally sad and shocking of this treatment of one that managed to survive. Release him immediately for the sake of his family and the rest of the county that is disgusted with his imprisonment.

  • Yirkiddin

    Sgt Nightingale’s punishment is excessive beyond belief . To treat a man who is dedicated to laying his life on the line foron a daily basis is ridiculous .Yes he has broke a rule therefore he should be punished but not ridiculed and ruined . Another example of how we treat our war heros . Or is there more to this they would rather not speak about ?

  • Lofty

    Maybe the powers that be should empty all the officers messes (that are left) of war trophies, such as the pisspot of Bonaparte and of course those Russian cannons. Keep going sgt

  • Rahul Kamath

    Apropo David S’s helpful post, I think the soldier in question was v badly advised to plead guilty here. Against a mandatory 5 yr sentence, a mitigated 18 months for a guilty pleas sounds reasonable.

    Also disappointing that a cabinet spat on a matter so trivial is all over the papers. Shame on Hammond.

    • Fergus Pickering

      I don’t think the matter is trivial to the soldier though it may be to you.

      • Rahul Kamath

        My point, poorly expressed, is that it should be trivial to the ministers in question. It would definitely not be trivial to the badly advised soldier who looks like becoming th next Gary McKinnon.

  • David S

    A full transcript of hte proceedings is available here:

    Reading this does put things in context a lot more. In particular

    – he pleaded guilty

    – all of the mitigation arguments were properly put the Court

    – the statutory background is a mandatory 5 year sentence for this offence, save in exceptional circumstances

    – exceptional circumstances were found to be present, hence the sentence of less than 5 years

    – another soldier had recently got 2 years for a very similar offience.

    The idea that it’s for politicians to interfere in ongoing criminal proceedings is bizarre. The AG’s response was obviously correct. It’s farily incredible, and completely iinmproper, that Hammond should have asked him to intervene. Presumably politicial posturing, as he would have known the AG could only decline.

  • D B

    Good for Sir Dominic.

  • Noa

    The grossest of public injustices has occured when decent honourable men like Sgt Nightingale are imprisoned when their actual enemies are freed to walk the streets of the country they wish to destroy and paid millions in compensation.
    The cowardly buck passing must stop.

    If Hammond, Grieves or the rest of the pygmies haven’t got the guts and vision to free him the Queen should be petitioned by the public to exercise the Royal Prerogative, and pardon and reinstate him immediately.

    • John Guest

      Hear Hear – well said.

  • JoeyJoJo

    Could anyone who is angry with the AG explain what they expected him to do? Charge down to the court martial and beat the judge until he reduced the sentence? Personally break Nightingale out of prison?

    The AG has absolutely no more power to ‘intervene’ in this case than any other politician. He cannot reverse the conviction (which was a guilty plea, by the way) or change the sentence.

    • Curnonsky

      Nonsense – a word in the ear, as has happened so many times before to protect the reputations of the great and good, and this would all be over in a flash.

  • Baron

    What nobody seems to be questioning is the law that imprisons a man for merely possessing a gun (up to 5 years max). What harm has this man done to anyone? We have gangsters actually killing with a gun getting similar sentences. Madness.

    • Jimbo

      It isn’t “up to 5 years max”, it’s an automatic, mandatory sentence of 5 years, save in exceptional circumstancees. That’s the law as passed by Parliament.

      Exceptional circumstances were found here, hence the sentence of “only” 18 months. But the 5 year mandatory term still set the starting-point of the sentencing calculation.

  • Colonel Mustard

    “Carl Gardner makes the invaluable point that it would have been wholly wrong for the Attorney General to interfere in prosecutions because of political and media pressure”

    Good job Lord Nelson was not like Grieve. We might be stuck with even more of the Napoleonic code than we are now.

  • Gaby Charing

    We aren’t being told the basis upon which he was sentenced. The case being made for him by his family was, presumably, put to the court martial. Did the court accept it? Did it accept he didn’t know about the gun? Did it accept he had brain damage? We don’t know, so how can any of us possibly say whether the sentence was excessive? If it was, then the appeal court has the power to reduce it. The appeal should run its course. Hammond is grandstanding, and Grieve is right to rebuke him.

    • Dimoto

      It was (yet another) “crackdown” because far too many ex-military fire-arms have been appearing in the possession of crims. A classic case of “making an example” with a really poor “example” .

  • Hexhamgeezer

    No political influence in criminal matters?

    Then why is Tommy Robinson in jail then?

  • Airey Belvoir

    iraq/Afghan veterans, post-traumatic stress and illicit weapons have proved to be a lethal combination in the past, which is probably why the military have come down so hard on Sgt Nightingale. That said, he seems to have been badly let down by his legal advisers in terms of his plea.

    • Gail Hunka

      yes this is a situation were the soldier, who has given up part of his life and knowingly would give his life for this country , where has the respect for these men gone ! Stand by the people that serve this country out of love and respect for England , the state in which they come home from such a bad war is over-looked by the government, its time they recognized what our soldiers go through instead of giving all the foreigners that come to live here priority to every thing this is ENGLAND look after your own first especially the soldiers who keep us safe, he was badly let down by the legal system !

  • Fred

    So Philip Hammond supports part of the Army but not the other. He is just playing to the Telegraph, more grubby politics.

  • Heartless etc.,


    We will know that sense has broken out again when Abu whatsisname and all the other trouble makers are thrown out of UK, together with the trappings of the Vichy State and all who serve it.

    Meanwhile, make what you can of your voyage aboard the Ship of Fools.

  • Chris lancashire

    I don’t find Grieve’s statement “pompous” – it’s a statement of fact. And La Mensch’s opinion is worth ignoring. What a stupid, pointless piece.

  • Swiss Bob

    Ah happy days when one could shout at the RUC telling them to eff orf (not me by the way) and run around with a 9mm, round chambered with only the safety to guard against losing your unmentionables.

    True story, had to go to court for a driving offence, ended up in the dock with my weapon in the above mentioned state.

    Must be a record :-)

    The police are arses, that is the opinion of the army, and they don’t like us because generally they can’t touch us!

  • Kevin

    It is not clear why it would be “inappropriate” to review the decision to prosecute, which is presumably what Hammond was requesting.

    Surely that is a matter for the AG and not for the appeal court?

    • JoeyJoJo

      The AG doesn’t superintend the Service Prosecuting Authority, so no, it isn’t.

  • TomTom

    Since the firearm was boxed it should simply have been handed over to the Regimental Museum as Sgt Nightingale intended. After all the house was only searched because his roommate was accused by his estranged wife of beating her, yet it was Sgt Nightgale’s posssessions that were searched. Having just watched Skyfall with weapons galore in London and Scotland it seems farcical that a SOLDIER who had a boxed weapon should be in prison when the plods could easily have decided it was decorative and passed it over to “The Hereford Regiment” but no doubt police and soldiers do not quite have a love-in

  • Sweetpea

    Perhaps Michael Gove could ensure that the importance of separation of powers, including the independence of the judiciary, is added to the national curriculum; and then maybe he could ensure all the kneejerk reactionaries are forced back to school so that they understand these concepts before venting their spleens here?

  • eeore

    Isn’t the fly in the ointment the ammunition?

    • TomTom

      Hell an SAS man called home quickly has 9mm ammo in his pocket – big deal – at least it wasn’t 50-calibre…….he was after all a sniper !

      • eeore

        Clearly his defence counsel considered such a line of argument unlikely to succeed. Hence the guilty plea.

  • anyfool

    Could this be a direct result of officers in the army trying to be seen as politiucally correct and therefore promulgating their promotion prospects with the politiscised promotions board, as the politicians push the army to a position almost akin to social work why would the officers not try to reflect that.

    • TomTom

      Maybe but they use Barristers in these matters as they are now in line with civilian procedure

  • Kingbingo

    The SAS should all resign and join Al-Qaida, they will have Dominic
    Grieve and the ECHR fighting for them instead then.

  • Colonel Mustard

    Why are the people who draft these statements so stupid and lacking in discretion? As if the government needs more bad press. “Difficult” might have been used instead of “inappropriate” with a caveat of “However” preceding a generous hearted offer, given the extraordinary circumstances, to initiate a dialogue about the case, or the law or anything really and referring to the parliamentary debate. I’ve never had much time for Grieve. He reminds me of Chamberlain but without the old world courtesy.

    If judgement in law cannot rest on specific circumstances and contain a discretionary element then it really is an ass.

    • TomTom

      The Government is full of twerps who happily prosecute soldiers for spilling tea on Afghan or Iraqi terrorists but refuse to find the killers of six Recaps in Iraq or the lovely Afghans killing the British soldiers who canniot fire back unless they survive the first shot

    • HooksLaw

      There is an appeal. Is it the job of ministers to interfere in the workings of the law? If this is a court martial, where there is in fact no jury, then i wonder why any of this is Grieve’s business.
      The prisoner is a soldier the court was a military one and all of a sudden the fault lies with a civil authority.
      The matter is an army one and if for some reason an injustice has been done its the military at fault.

      • Colonel Mustard

        Wind your neck in.

        • jemspilsbury

          And get your f—-ing heels together.!


      Talking of discretion, why was this case ever brought? Sgt. Nightingale has a brain injury and that alone should have nipped this case in the bud.

      Or perhaps his defence team should simply have said that the Sgt. was suffering from depression so bad that he was too unfit to face trial – it works for MPs.

  • Vulture

    Grieve is a legalistic little sheep who has no place in a Tory Government. He should be parachuted into Afghanistan armed only with a water pistol.
    Hope he resigns when Parliament again bans votes for prisoners this week and goes and joins his mates on the ECHR. I’m sure they’ll find a place for him. It’s where he belongs.

    • telemachus

      You decry the ECHR but remember it keeps many an East European regime from torturing the voters

      • Daveyyy12

        That is for the east European voters.
        Here we have people who detest us, hate us, despise us think we are sub-human yet the ECHR goes out of its way to protect them. Looks like the ECHR thinks English people do not need protection/

        • telemachus

          Point is we cannot advocate if we flout

    • lbeagle

      Can’t stand the blighter – but it is quite good having someone who is legalistic as A-G. Better than Grayling as Lord Chancellor…………

  • Coffeehousewall

    Why are you posting the opinions of Louise Mensch? In what way is anything she thinks or does of any interest to anyone? Do you want me to get the views of my postman and send them in? They are more relevant.

    • don logan

      You’re dead right Maidstone.

    • telemachus

      Louise Mensch was a good girl

      (indeed the right drooled over her until she proved her worth)

      She resigned

      The resignation led to a famous victory on a day that the voters showed Cameron yet another stupidity of his police policies


      He takes thousands of police off the streets to allow the louts to maraud and molest. Then he says he will let local folk say what they want

      What they want is police on the beat

      OK so where is the money for these new gauleiters to spend?

      • Harold Angryperson

        Trolling again…

    • HooksLaw

      Nor do I detect any ‘arch superiority’ in a formal response. what we have is Mr Blackburn influencing ‘perception’ again.

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