Danny Nightingale’s solicitor on Dominic Grieve

by Carl Gardner on November 20, 2012

Since my last post on Danny Nightingale I’ve been in touch with his solicitor, Simon McKay. I asked him what he thought about the Attorney’s response to Philip Hammond, and he replied:

My view is that the AG has the ability to review the case at any stage since he has supervisory jurisdiction over the SPA [the Service Prosecution Authority].

I see no real distinction in principle to the approach the DPP to the Ratcliffe on Soar case after the activities of Mark Kennedy became known; Keir Starmer reviewed the case and “invited” those convicted to appeal. That was not only innovative but reflected the burden of office an independent prosecutor carries.

This is an interesting point – he’s referring to this case, non-disclosure of material relating to the activities of an undercover police officer, Mark Kennedy, in which the DPP did indeed invite the defence to appeal.

I put it to Simon that the Attorney, who superintends prosecuting authorities, isn’t in an analogous position to the DPP. Simon accepted that but added:

he still retains supervisory jurisdiction and is entitled to review.

I don’t agree. As I wrote in my earlier post, the Attorney only intervenes in an individual criminal prosecution (excluding those for which his prior consent is needed by law) on grounds of national security. The DPP’s equivalent in this case is not the Attorney, but the Director of the Service Prosecution Authority, Bruce Houlder QC.

An appeal to the Court Martial Appeal Court is being lodged tomorrow along with an application for bail, Simon told me. The appeal against conviction will be based on Danny Nightingale’s plea not being a true indication of guilt; the appeal against sentence is based on it being manifestly excessive because it failed to have sufficient regard to the exceptional circumstances of the case. Simon’s instructed William Clegg QC to represent Danny Nightingale.

{ 2 comments… read them below or add one }

1 David S November 21, 2012 at 13:48

Hmmm. Appealing against conviction when you pleaded guilty? Smacks of desperation, i.e. that they don’t think they will be able to reduce the sentence if the conviction stands.

Odd that the media coverage has not focused on the fact that Parliament has decreed that the offence of which he was convicted has a 5 year minimum term save in exceptional circumstances. Although exceptional circumstances were found in this case, due to this legislation the 5 years nevertheless formed the starting point of the sentencing calculations. Without the legislation, he would probably have got a lesser sentence.

2 Carl Gardner November 23, 2012 at 18:28

Yes. This is a good example of politicians choosing to constrain judges by legislation – then being exasperated when the judges follow the rules they’ve laid down.

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