The news that Sergeant Danny Nightingale has received a 12 month suspended sentence for illegal possession of a firearm and ammunition will be greeted with some mixed feelings in the army.
Since 5 May 1980 when B Squadron of 22 SAS Regiment stormed the Iranian Embassy in Prince’s Gate, London, the Special Air Service Regiment has entered popular culture as an awe-inspiring and almost mystical force: part James Bond, part Terminator, all British. The success of books by former SAS soldiers like ‘Andy McNab’ has, if anything, served to increase this mystique.
Counterbalancing the exciting tales of derring-do is the secrecy of the SAS. The government rarely, if ever, releases any information about the activities of its Special Forces and as a result, much of what does get into the public eye is based on rumour and speculation.
So it wasn’t entirely surprising when the conviction of Sergeant Danny Nightingale, an experienced SAS NCO, for the illegal possession of a Glock 9mm pistol – and his sentencing to 18-months military detention – provoked a furore in the media. At its most basic level, this was simply a story about the SAS which could be reported, featuring an SAS soldier who actually could be identified (and who had a feisty and attractive wife) and which shed a little bit of light on what is normally a very closed world: no wonder it was splashed all over the British press.
To many outside the military, it seemed ludicrous that an SAS soldier should be jailed for being in possession of a pistol: don’t they always carry guns, surely that’s their job? More realistically, although Nightingale had pleaded guilty at his original court martial, four distinguished former SAS members – Lt Col Richard Williams, Col Tim Collins, ‘Andy McNab’ and ‘Chris Ryan’ – wrote to the Prime Minister suggesting that the length of the sentence given to such an exemplary soldier, who had served in the Army for 17 years, 11 of which were in the SAS, represented a ‘shameful betrayal’.
There was also the question of a brain injury that Nightingale had suffered whilst competing in a jungle marathon in Brazil. A medical expert testified in mitigation that Nightingale had problems with his memory and didn’t really remember how he had come by the pistol (the question of the 338 rounds of ammunition were effectively put to one side during the course of the first court martial), and may not even have known that he had it.
Response to the media coverage of Nightingale’s case was rapid. Defence Secretary Philip Hammond asked the Attorney General to intervene – he was unable to – but the outcry did lead the Court of Appeal to expedite Nightingale’s appeal against sentence and within a fortnight of his court martial, his sentence was reduced to 12 months suspended detention and he was freed pending an appeal against conviction.
Sergeant Nightingale’s conviction was subsequently quashed because it emerged that he had effectively been offered an illegal plea bargain. The standard ‘tariff’ for the illegal possession of a firearm is five years imprisonment and it seems that Nightingale had been told that he might well receive this sentence if he pleaded ‘not guilty’. This was all well and good, Nightingale was already a free man but there was a sting in the tail: the court ordered a retrial.
If retrials were decided on the basis of public, press and political support, Nightingale’s would have been a formality but there were dissenters, and, perhaps surprisingly, many of them were in the military.
What has exercised much soldierly wrath is the idea that being a member of the Special Air Service Regiment should have entitled Sergeant Nightingale to special treatment by the law. The question is whether a sergeant in, say, the Royal Logistic Corps would have been able to mobilise the same level of support in parliament, public and press in similar circumstances? The answer is almost certainly not.
The reality is that the SAS is to all legal intents and purposes the same as any other regiment or corps in the army; and its officers and soldiers – as carefully selected and highly trained as they are – are the same as any other soldiers. Nightingale’s supporters seemed to argue that he should be treated differently simply because he was in the SAS, as if this conveyed a special status. It doesn’t and shouldn’t.
There was a period in the late 1970s and on through the 1980s when there was a strong feeling within the army that serving in the Special Forces was the only way that the ordinary soldier might ever get to experience combat. Most thought the Falklands War of 1982 had been an aberration and many of us who were students at Sandhurst over the next few years felt that the British Army was unlikely to do anything similar again. It was during this period that service in the SAS came to be seen by many within the army as the apotheosis of soldiering.
But this has changed. Whilst commentators expected a ‘peace dividend’ at the end of the Cold War, and the politicians gleefully cashed it in, the reality has been increased instability and more military intervention. In 1990, the only British soldiers likely to have taken part in a firefight will have been veterans of the Falklands War, a small handful of veterans of Northern Ireland and members of the SAS; in 2010, any infantryman who had served in Iraq or Afghanistan would most likely have experienced any number of ‘contacts’ at a higher intensity than at any time since the Korean War. ‘Andy McNab’, the highly decorated SAS NCO turned writer is, in terms of combat experience, a rookie in comparison to many junior NCOs in line infantry regiments. The net result is that whilst the SAS are still much admired, they don’t have quite the same warrior ‘aura’ they once possessed. They do a difficult and highly skilled job, but it isn’t necessarily any more dangerous than what much of the rest of the army does; they get paid a significant amount more money to do it; and, by and large, soldiers from other parts of the army think that is special treatment enough. Members of the SAS should not be able to behave badly and get away with it.
Soldiers like guns. In fact they really like them. For many, it is one of the key reasons they first thought of joining the army. But as they go through training and on into normal service, the huge majority learn to treat guns – and other weapons – with maturity and respect. The little boy in most soldiers might like the idea of having an unaccountable weapon tucked away somewhere ‘just in case’ but the sensible adult usually trumps this. I know from my own experience that there were large numbers of dodgy weapons floating around in Iraq – I personally acquired four Kalashnikovs, four 9mm pistols and several thousand rounds of appropriate ammunition for my team in order to increase our limited firepower – but I, and the rest of my team, resisted the temptation to bring any of these back. Putting aside the question of criminality, every soldier I have spoken with about the Nightingale case thinks he displayed an astonishing level of immaturity in bringing an illegal weapon back to the UK.
Then there is the question of the ammunition. Every time an officer or soldier from the SAS or any other part of the army leaves any military range where live ammunition has been used they are briefed to the effect that it is a ‘military and civilian offence to be in possession of live rounds or empty [spent] cases’. They are required to check their clothing and equipment for any unused ammunition and to give the following declaration to the range conducting officer: ‘I have no live rounds or empty cases in my possession’. They are then told that if they do subsequently find any ammunition ‘it should be handed in to a responsible officer or NCO’. Many units, including 22 SAS, also maintain ‘amnesty boxes’ for this purpose.
Despite this, Sergeant Nightingale managed to accumulate more than 300 live rounds, as well as a smoke grenade, at his accommodation. Apart from being – in a sense – the equivalent of stealing stationery from work this was also a bit weird. Much of what Sergeant Nightingale had taken home with him could not be used in any context other than his day job as a soldier in the SAS: the rifle ammunition couldn’t be fired from the Glock he was hiding. This again was an offence that an ‘ordinary’ soldier would have received a hefty punishment for, as Sergeant Nightingale knew, having previously been fined £1000 when serving with the Queen’s Lancashire Regiment for illegally possessing ammunition.
At the second court martial Sergeant Nightingale entered a ‘not guilty’ plea and focused his defence on the memory issues caused by his brain injury. His lawyers argued that he he had no real memory of how he had come into possession of the pistol and ammunition if, indeed, he ever had. Sergeant Nightingale’s defence suggested that his housemate, another SAS NCO who was serving a sentence of military detention for similar offences, might also have been responsible for the weapon and ammunition in Sergeant Nightingale’s room. In the end, the court martial decided that there was sufficient evidence that Sergeant Nightingale had been aware of the pistol and ammunition to convict him.
With the imposition of a 12 month suspended sentence one must hope that the saga has now come to an end, at least for Sergeant Nightingale and his family. Even so, it does raise some important points which are worthy of further discussion.
The first of these is the question of ministerial (and indeed Prime Ministerial) influence on the military justice system. During the course of the second court martial, the Army Rumour Service website (http://www.arrse.co.uk) was contacted by the Director of Service Prosecutions with a warning that the discussion taking place about the Nightingale case might amount to a contempt of court. Yet where does that leave the Defence Secretary and other ministers and MPs who had very publicly indicated their disagreement with the sentence of the first court martial? It would not be hard to argue that the Secretary of State had indirectly put the court martial under intense pressure to either acquit or award a lenient sentence on conviction.
The second is the supposedly ‘special’ status of the SAS. It is easy to understand why the press and public might assume that members of the SAS should be treated differently to other soldiers, but less easy to see why ministers might think they should be. It is hard to imagine the Secretary of State intervening in a similar case involving a soldier in the Dental Corps or the Royal Artillery.
Thirdly, and most importantly, is the question of Britain’s gun laws. The minimum sentencing guidelines for illegal possession of firearms were brought in to deter criminals from acquiring and using firearms for the commission of crime. Even his harshest critics have not accused Sergeant Nightingale, or his former housemate, of intending to use their illegal guns to stick up Sub-Post Offices yet courts are obliged to treat them as if they were. This is ludicrous. Sergeant Nightingale and his colleague made gross errors of judgement which deserved condign punishment but that punishment needs to be kept in the context of how and why they acquired the weapons and ammunition and what they intended to do with them: these were not ‘gangstas’ intent on crimes of violence.
A 12 month suspended sentence strikes me as lenient but I certainly don’t begrudge it. I do hope this will be seen as a precedent for all soldiers convicted in similar circumstances, not just members of the SAS, and I’d suggest that now might be the time for the Ministry of Justice to revisit the minimum sentence guidelines for illegal firearms possession in order to give judges far more latitude to take circumstances into account when sentencing.
Finally, many soldiers I’ve spoken with have have criticised Mrs Nightingale for her vocal campaign on her husband’s behalf, suggesting that she has somehow exacerbated the situation. I don’t see this at all and I hope that if I was in the same boat, my wife would windmill in in the same manner. She’s done her best to keep her husband out of jail, succeeded and good luck to her!
This post was written before the Judge Advocate’s somewhat scathing remarks were made public (see here: http://www.bbc.co.uk/news/uk-england-23450909). I agree with much of his criticism of the campaign on Sergeant Nightingale’s behalf and it seems to me that there’s an implicit criticism of the Court of Appeal there as well, which is unusual for a lower court.