Danny Nightingale: the Attorney’s right, Hammond was wrong

by Carl Gardner on November 20, 2012

The Attorney General Dominic Grieve has been criticised for refusing to intervene in the case of Danny Nightingale, a soldier who pleaded guilty at a Court Martial recently to illegal possession of a gun and ammunition. Apparently Danny Nightingale’s solicitor intends to appeal, presumably against the sentence of 18 months detention. Grieve refused to intervene following a written request to do so from the Secretary of State for Defence, Philip Hammond.

A spokesperson for the Attorney said:

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.

The criticism of Grieve’s decision has been, from some quarters, quite severe. The Daily Mail’s deputy political editor Tim Shipman, for instance, tweeted:

and there was this, from former MP Louise Mensch:

On ConservativeHome, some commenters have asked for Grieve’s resignation.

But this is indeed a matter for the appeal court. Grieve is quite right to refuse to intervene in a criminal prosecution because of political pressure.

Only a few years ago, many people were more than ready to criticise the “role” of the Attorney General. Quite a few people held the view that Lord Goldsmith had wrongly intervened in the “cash for honours” affair and that he was wrong to stop the prosecution of BAe Systems – a decision he didn’t actually take.

I didn’t go along with those criticisms at the time. But the general trend of opinion was that the Attorney was insufficiently independent of other ministers, and that his “role” should be reformed. In public consultation in 2007, according to Baroness Scotland,

Concern, in varying degrees, was expressed about the Attorney General’s role in individual criminal cases. Suggestions included clarifying the Attorney’s function of superintending the prosecuting authorities to provide expressly that it does not include any power of direction in individual cases.

Part of the then government’s response, after Baroness Scotland took over the Attorney’s job, was to make such a clarification. A protocol was signed between her and the prosecuting authorities the Attorney superintends: the Crown Prosecution Service, the Serious Fraud Office and the Revenue & Customs Prosecution Office.

At this point, someone might object to the fact that the military prosecutors aren’t party to this protocol. Fair enough, as a pedantic point. But that’s because the Attorney does not superintend the Service Prosecution Authority in the way he superintends the CPS or SFO – the SPA is not, unlike them, a “Law Officers’ Department”. He only has an arguably more distant, general oversight role in relation to the military prosecutor.

The protocol says (paragraph 4.3) that, apart from those cases where his consent to prosecution is required by law – not something that applies in this case

decisions to prosecute or not to prosecute are taken entirely by the prosecutors. The Attorney General will not seek to give a direction in an individual case save very exceptionally where necessary to safeguard national security

The principle is quite clear, then. In order to maintain prosecutorial independence, and the independence of the Attorney that was so devoutly wished by many commentators a few years ago, the Attorney does not intervene in individual cases on grounds other than national security. The principle so clearly applicable in civilian prosecutions cannot just be ignored in Courts Martial.

In any event, it would be quite wrong for the Attorney to decide to intervene in any criminal case because of pressure from any politician – and especially a member of the government. That would be exactly the sort of suspicion that made people concerned about the “role” of the Attorney a few years back. So Dominic Grieve was absolutely right to respond to the Secretary of State in the way he did – and criticism of him is wrong-headed.

What was wrong – and difficult to understand – is that the Ministry of Defence decided to publicise its Secretary of State’s letter to a minister asking him to do something that was clearly inappropriate. What was Hammond thinking? This incident reminds me of the 2006 case of Craig Sweeney (see para. 45 of this report), in which the then Home Secretary John Reid publicly asked the Attorney to intervene in sentencing; the Attorney’s spokesman quite rightly responded:

the Attorney will make a decision … purely on the merits of the case and not in response to political or public pressure.

Perhaps the civil service has abandoned the tiresome caution that the Prime Minister, going by his speech yesterday, is fed up of. Perhaps Philip Hammond decided to cut through all the awful risk-aversion. In any case, he has brought ill-informed criticism on the head of a ministerial colleague by his thoughtlessly publicised letter, instead of just getting MoD civil servants to talk first to their counterparts at the Attorney’s Office. They could have explained politely why the Attorney should not intervene.

I don’t think this silly, chaotic and entirely avoidable government spat should lead to any resignation. But if all proportion’s lost and there is one, it should be Hammond’s.

{ 7 comments… read them below or add one }

1 Trevor Grant November 20, 2012 at 18:35

The Attorney General has taken the correct action. Firearm offences must be taken seriously and dealt with accordingly. You cannot change the law because somebody is normally a ‘good bloke’, this is taken into account when sentencing.
The Minister has taken the wrong action completely. Like most politicians he wants to take , what most people would think is, the popular option.
Politicians, by their nature, are horse traders. They are willing to give and take to get the best deal. They also bring their emotions and prejudices to the table. These are attributes which are not best suited to a balanced decision.
I remember when Michael Howard was Home Secretary. I think that most people in the dock would prefer an experienced Judge to decide their sentence, rather than leave it to a politician who is thinking of how it looks to the electorate.

2 It doesn't add up... November 20, 2012 at 19:45

See Subsection (2) here:

http://www.legislation.gov.uk/ukpga/2006/52/section/227

Grieve need only have pointed out that it is a matter for the Court Martial Appeal to consider whether “it is of the opinion [of the court] that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so”.

No need to lean. No need to try to circumvent the law. Just a need to point out what the law actually says.

3 Tim November 22, 2012 at 16:13

Daily Mail “journalists” really are a total waste of DNA. They are a menace to democracy, common sense, decency, honesty and all things good.

4 Nigelpwsmith November 23, 2012 at 16:42

I’m afraid that all of you are applying the law blindly without considering what this decision has done to National Security – where it happens to be the duty of the Attorney General to intervene.

Whether a prosecution is warranted in the Service Interest, let alone the Public Interest is entirely due to the context. In this case, the prosecution should not have proceeded. A similar case in Cardiff in 2008 (Llewellyn – quoted by Julian Brazier MP in the House of Commons) with none of the mitigating facts was not prosecuted. The West Mercia Police were not willing to prosecute Sgt Danny Nightingale because they considered there was absolutely no criminal intent.

The pistol was packed into Sgt Nightingale’s kit by his colleagues in Iraq, after he had to return to the UK with his CO and the bodies of 2 dead SAS comrades. Sgt Nightingale did not bring the pistol into the country and for 2 years it was in a secure location at the SAS HQ Hereford.

Sgt Nightingale was forced to move the equipment to his accommodation as he was on 30 minutes readiness to action. It should have been removed by the SAS Quartermaster before it was sent to his home. Sgt Nightingale was a training officer and had a quantity of ammunition as he was on the ranges virtually every day. Due to an injury he suffered running a marathon for Help For Heroes, Sgt Nightingale suffered memory lapses and forgot to hand the pistol in for decommissioning as well as the spare ammo. He was on active duty in Afghanistan when the pistol was found.

Philip Hammond has been under intense pressure from all levels of the military to intervene because the unfair conviction of Sgt Nightingale has caused deep resentment in all branches of the armed forces and with veterans too.

It is deeply ironic that at the time the nation was remembering the sacrifice that the military make to protect our freedoms and our laws, that Sgt Nightingale was threatened with 5 years in prison and told that if he pleaded guilty he would be treated leniently (which he & others thought would mean some administrative punishment) only to be sentenced to a severe and full 18 months in a military corrective centre.

Sergeant Nightingale was let down by the military justice system, but the injury extends to all members of the armed services who now feel threatened by an unfair and prejudicial application of the law. Philip Hammond made the enquiry with the Attorney General to prevent irreplaceable members of the armed forces resigning for the civilian sector as this article by Chris Ryan (ex-SAS) points out http://www.thesun.co.uk/sol/homepage/news/campaigns/our_boys/4660081/SOS-at-the-SAS-as-morale-crushed-by-jailing-of-hero-Danny-Nightingale.html

Not only that, but he was not asking Dominic Grieve to do something which was not within his powers. Whilst the prosecuting officers are independent of the AG, they have to apply the Public Interest test and in this instance they did not do so correctly or consistently with previous prosecutions. There is something serious wrong when the Police say that there was no criminal intent and they would not prosecute, but the prosecution service goes ahead anyway and against the Service & Public Interest.

It is correct that the appeal has to be handled by the Courts Martial Appeal Service and an appeal has been made. It is within the Attorney General’s remit though, to suggest that the Crown would not oppose any appeal against the sentence and to allow it to be overturned, so that Sgt Nightingale can return to active duty.

There is no doubt that lax practices within the armed services led to this mistake. After the pistol was discovered, the SAS held a weapon and ammunition amnesty. They placed a skip in the HQ for the troopers to dispose of any illegally held weapons and were astonished at the number of firearms that turned up. From now on, if SAS troopers have to hold firearms outside the bases, they will be properly secured, locked away and the people concerned will be licensed to hold them.

It is obvious to all that the chief reason why the prosecution service acted so harshly in the case of Sgt Nightingale is due to the Home Office stating that they were going to clamp down hard, on firearms imported illegally from war zones and used in criminal activity. Unfortunately, it appears that someone in the Military Justice system decided to use Sgt Nightingale as a high profile example to deter any others from importing trophies. Whilst it may have this effect, it has seriously weakened the morale of the very people who protect our National Security.

So it was quite rightly in the interests of National Security for Philip Hammond to ask Dominic Grieve to intervene and find out why this prosecution went ahead in the first place, to prevent more damage to National Security and to ensure that Sgt Nightingale is released after the appeal is unopposed.

As the four celebrated members of the SAS stated in their letter to David Cameron, this prosecution should never have been made. The matter should have been dealt with, within the Regiment and the security of weapons tightened within the Armed Forces generally.

Now that Sgt Nightingale’s identity is known, it will be very difficult for him to return to full active service. This man is a hero, the first-aid dressing he invented is saving lives and yet he asked no praise or reward for devising it. Sgt Nightingale should be allowed to return to his family and to his duties at the earliest possible moment.

In the meanwhile, the Ministry of Justice and the Attorney General needs to ensure that the independent prosecutors are doing their job correctly by applying the Service and Public Interest tests to these cases and not prosecuting if the Police do not want to proceed, of if there are mitigating facts which suggest that there was no criminal intent.

5 Ray Hodson November 23, 2012 at 17:17

If, as previously stated the Attorney General is correct not to intervene in what is clearly a miscarage of justice, what is the point of his job?

6 Carl Gardner November 23, 2012 at 18:38

Nigel,

When you write

the Ministry of Justice and the Attorney General needs to ensure that the independent prosecutors are doing their job correctly

I wonder who you think prosecutors are supposed to be independent of.

It’s true that the Attorney’s duty is to “superintend” public prosecutors. He does indeed make sure they’re doing their job properly generally. Intervening in a specific case is another thing entirely. Most people are opposed on principle to the idea that a minister should personally control prosecution decisions, which was why a previous Attorney signed the protocol I referred to in my post. It makes clear the very limited circumstances in which the Attorney will give directions to a prosecutor.

I’m afraid however you try to dress it up, this is not a case in which national security is at risk.

The criticisms you make are perfectly legitimate criticisms of the Service Prosecution Authority. The Attorney, though, can’t properly be criticised over this case.

7 Carl Gardner November 23, 2012 at 18:42

Ray,

He’s the government’s main legal adviser, he superintends prosecutors, by law his consent is required before some cases can be prosecuted, he has powers to refer questions of criminal law and sentencing to the Court of Appeal, and he has special public interest roles in charity and family law.

What he doesn’t do is make prosecution decisions, or intervene in individual criminal cases except on national security grounds, in accordance with the protocol Baroness Scotland agreed with the CPS and others.

If Philip Hammond doesn’t like the Attorney’s powers, he should talk to David Cameron and try to get them changed. I don’t remember, when Baroness Scotland was under pressure a few years ago to clarify the limits of her role, that either Hammond or Cameron objected.

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