Armed Forces Justice system falling apart

[AvionicToad]

With Sgt Danny Nightingale's support gaining signatures fast approx 90,000 signatures

Release an Unfairly Jailed War Hero | Campaigns by You (http://you.38degrees.org.uk/petitions/secure-the-release-of-an-unfairly-jailed-war-hero)

The Service Complaints Commisioners Report.
http://www.publications.parliament.uk/pa/cm201213/cmselect/cmdfence/writev/service/service.pdf

And Reports of Kangaroo courts:-
Army discipline often equivalent to 'kangaroo courts' - Channel 4 News (http://www.channel4.com/news/army-discipline-often-equivalent-to-kangaroo-courts)

I would imagine a complete overhaul of the Armed Forces Justice System is due, and examination of all criminal convictions fron summary hearings.

What a mess!

[VinRouge]

About time this was looked into. The charging system used in theatre on the lads is a disgrace.

[baffman]

Very interesting, Avionic Toad.

Do you think that the service justice and discipline systems are falling apart because they were always flawed, or is it (as at least one MP claimed in the Sgt Nightingale adjournment debate) because the system has been damaged by the dreaded ECHR?

[Courtney Mil]

Everything's been damaged by the dreaded ECHR. We can't even kick known terrorists out of the UK now. Clearly criminals' rights outweigh ours. It has probably never been a perfect system, but summary justice has often worked to everyone's benefit.

"Will you accept my award?" Yes, I'll take a fine and a week of restrictions instead of a formal punishment from a CM.

I can't beleive I'm sounding like I'm a supporter of the system. Maybe I think it could work if used properly and without prejudice.

Anyway, if Sgt N keeps his job, he'll have done well out of this, much better than a civil prosecution. I think.

[Two's in]

Thank goodness the average soldier isn't some testosterone laden adolescent, hell bent on a good night out with the assistance of many pints of beer, otherwise you might need a more robust system of discipline to keep them in check. Luckily the lads today finish needlework classes early to go and help old people cross the road (before getting an early night), they are the ones who need protecting from the injustices of brutish Army discipline. Thank God for the ECHR, hopefully they will also demand a complete ban on those nasty, shouty Sergeant-Major types as well.

[Chugalug2]

I cannot and do not comment on the case highlighted by the OP. What I do comment on though is the continual whittling away of the Powers of Subordinate Commanders, so that disciplinary matters that would have previously been handled swiftly and effectively at unit level betwixt alleged defaulter and officer i/c, personally known to each other, is now moved upwards to higher echelons and handled by apparatchiks who know no-one involved.
The Armed Forces are disciplined Services and can only function on a personal basis if we expect people to close with our enemies and defeat them in battle. Your "Boss" is not a "Boss" if he hasn't such powers over you to deal directly with you when you transgress. If he hasn't, he's simply another apparatchik in the CoC, and the Service is yet another bureaucracy. Is it?

[Rosevidney1]

Chugalug2 x2!

[baffman]

Thank goodness the average soldier isn't some testosterone laden adolescent, hell bent on a good night out with the assistance of many pints of beer, otherwise you might need a more robust system of discipline to keep them in check. Luckily the lads today finish needlework classes early to go and help old people cross the road (before getting an early night), they are the ones who need protecting from the injustices of brutish Army discipline. Thank God for the ECHR, hopefully they will also demand a complete ban on those nasty, shouty Sergeant-Major types as well. In what ways is the service justice system less robust since AFA 2006 than it was before?

Have some sentencing powers (and I don't mean fines) not been increased under AFA 2006/2011?

Are today's soldiers really more "hell bent on a good night with the assistance of many pints of beer" than their Cold War predecessors?

Which particular Article of the ECHR is against "nasty, shouty Sergeant-major types" or military discipline in general?

[adminblunty]

99,564 at 20:44!

[downsizer]

The charging system used in theatre on the lads is a disgrace.

Army or RAF lads? Not seen many RAF lads getting charged in theatre before....

[VinRouge]

Army.

What general guidelines are followed regarding the setting of the level of a financial charge for a minor administrative or discipline issue?

Or is it just up to the Old Man to decide the level of punishment?

[baffman]

Army.

What general guidelines are followed regarding the setting of the level of a financial charge for a minor administrative or discipline issue?

Or is it just up to the Old Man to decide the level of punishment? It's in the Manual of Service Law (which like the rest of the system is tri-service these days)

MSL Vol 1 S2 Chapter 14 - The summary hearing sentencing guide PDF [1.3 MB] (http://www.mod.uk/NR/rdonlyres/493F7176-9440-481B-9C17-E9F664C41553/0/Ch14.pdf)

[Jimlad1]

I would have considerably more sympathy for Sgt Nightingale were it not for the fact that a very large amount of ammunition, clearly acquired over a significant length of time, was also found in his property.

He has got off bloody lightly in my view, and if you look at ARRSE, the general opinion seems to be that he deserves to be in prison for carrying out several criminal acts. Anyone else would right now be serving a minimum five year sentence.

[VinRouge]

Baffman, very interesting, especially in light of Daems/Aems and assessment of errors or mistakes. It appears that certain "offences" which may have been unintended are punishable under the armed forces act 2006?

What redress would individuals have if the sums involved exceeded those set out in that document?

[baffman]

VinRouge, the service person can appeal to the Summary Appeal Court. There is also a review system, which covers various issues including the sentence being within the powers available, and its severity being commensurate with the offence proven. The Reviewing Officer can refer a case to the Summary Appeal Court irrespective of whether the service person has appealed.

[RumPunch]

I thought this is what Justice is about :ok:

http://sphotos-c.ak.fbcdn.net/hphotos-ak-ash3/c105.0.403.403/p403x403/59020_10151265778787630_368120300_n.jpg

[parabellum]

I would have considerably more sympathy for Sgt Nightingale were it not for
the fact that a very large amount of ammunition, clearly acquired over a
significant length of time, was also found in his property.


If you read any of the accepted books about the UK Special Forces you will know that they consume vasts amounts of ammunition in training, the lot under the bed could have accumulated in just a few days!

[coffindodger]

If he is realeased early he and every one else knows his days within the SAS are over, he will have to be RTU and back in the normal army life style.
He will also be a marked man for any and or all nutters to have a pop at him or his family.
Sad but true. !!

[A A Gruntpuddock]

The problem is that the politicians made unauthorised possession of guns & ammo an absolute offence - you commit it you get done, no excuses.

This has led to the jailing of people who found guns and handed them into the police and a widow who found her husband had hidden a handgun in the house. Since there is no allowance in the law ("without reasonable excuse" is usually written in) judges have no option but to find people guilty.

MPs are well aware of this but are too busy fiddling their expenses to do anything about it.

[BEagle]

It alleges that these "proceedings are 'kangaroo courts' - biased and partisan tribunals bounding inexorably towards predetermined conclusions".


= "March in the guilty b@stard and his lying friends!".......:(

[dervish]

"I have no live rounds or empty cases in my possession, Sir."


End of.


But I wonder what action would have been taken had he been the "Sir", especially a very senior one.

[gsa]

This has led to the jailing of people who found guns and handed them into the police and a widow who found her husband had hidden a handgun in the house. Since there is no allowance in the law ("without reasonable excuse" is usually written in) judges have no option but to find people guilty.Total Rubbish!!

My other half organises a burn run of one or two pickup loads of firearms and shotguns handed into her firearms department every quarter and most of them are found after deaths, in the 12 years she has worked there they have never charged anyone who has handed in found weapons. They have jailed plenty who have had weapons found during searches and tried to use an excuse.

It will only get to the CPS if there is something fishy.

[Courtney Mil]

Total Rubbish!!

Except, of course, for this one mentioned earlier:

A former soldier who handed a discarded shotgun in to police faces at least five years imprisonment for "doing his duty".

Paul Clarke, 27, was found guilty of possessing a firearm at Guildford Crown Court on Tuesday – after finding the gun and handing it personally to police officers on March 20 this year.

The jury took 20 minutes to make its conviction, and Mr Clarke now faces a minimum of five year's imprisonment for handing in the weapon.

In a statement read out in court, Mr Clarke said: "I didn't think for one moment I would be arrested.

"I thought it was my duty to hand it in and get it off the streets."

[Jimlad1]

OF course in that particular case, it wasnt reported that there had been a significant timelapse between his finding the gun and handing it in (IIRC it was the region of a week).

Had he gone straight to the station then he'd have been fine, but hanging on for a week is what did for him.

[AvionicToad]

I don't think many would argue that a CO summary hearing is essential for disciplining junior ranks who fall out of line. The system needs to be quick decisive and need not be completely fair. (It's about discipline after all.)

However since given the powers to undertake criminal proceedings that carry a recordable criminal conviction under AFA 2006, this in my belief needs to result in a fair trial. It's one thing finding someone guilty for being generally late, scruffy and ill-disciplined, however if a Commanding Officer is able to find an individual guilty of Assault and Battery (and in Bale Baleiwai's case nearly get him deported). It must be a fair trial, a conviction can have life changing implications outside HM Forces.

Most worrying is that Bale, at a recent trial de nova (trial granted in exceptional circumstances) was found not guilty by a judge. This calls into question why his Commanding Officer got it wrong in the first place!

Although out the RAF for 4 years now, I have been experiencing problems with a summary hearing conviction for a scuffed door (£40 stoppage of pay and criminal damage conviction I did not realise I had as it predates AFA2006). I believe my CO decided to deliberately criminalise rather than discipline me. Would the ability to deliver effective Air Power be severely hampered if instead of a £40 fine and a criminal record for a scuffed door, I had been given a weeks restriction of privileges?

In my experience I also believe my RAF police interview tapes have been edited, (unproved allegation at the moment but hopefully the truth will come out). If this is the case, we have a police force with no independent oversight, breaking the law unpunished. The whole system needs examining

[teeteringhead]

One wonders how many of the 100k-ish petition signers (or indeed posters here) have read the CM transcript rather than just the Daily Wail/Scum.

Transcript is in the public domain and may be seen here. (http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/nightingale-proceedings-0607112012.pdf)

If you read it, you may well think:

a. Danny N got a pretty good deal, particularly considering the ammunition bit (which no-one seems to mention much)

And

b. He certainly got a better deal than he would in a civvy court.

He was neither dismissed the Service nor reduced in rank - both very unusual.

[AvionicToad]

100,000 Signatures have still been signed none the less, and that indicates public support. Would he have the same support if not HM Forces? I doubt it, therefore it proves the public (or 100,000 of them at least) would support a Court Martial system that gives servicemen preferential treatment.

[Whenurhappy]

Avionic Toad.

I am sure that there are abberations in ther Service justice system, but before everyone jumps on the band-wagon about 'poor' Sgt Nightingale, I strongly suggest that they follow TTH's advice and read the trancript. I understand, by the wway, the JA was a Group captain before he retired from theService.

[teeteringhead]

I understand, by the way, the JA was a Group captain before he retired from theService. There was certainly a Gp Capt of the same (unusual) name in the Legal Branch a few years ago.

[fawkes]

There are three strands here: Oversight, justice and the court of public opinion.

On the day of the publication of the Leveson report the most important of them is "Oversight". Whilst the Service Justice system has been overhauled and CMs are now "fair" in accordance with ECHR rulings, they are conducted by properly trained and qualifieed individuals and subject to both scrutiny and appeal.

Lower level disciplinary hearings are conducted (and advised) by unqualified individuals and held in private/secret and include strange offences peculiar to the AF with no equivalent in the law as applied to civilians. (Sometimes for good reason: "sleeping on watch"; "negligence" etc. The real problem comes when an attempt is made to bring parity between what are essentially contractual breaches of an employent contract (if we had one) and criminal convictions. This is the bone of contention. The culture of the AF discourages answering back and an understanding of duties, rights and privileges. The army in particular has a population which has a disproportionatelty low educartional level for the amount of resposibility involved. This lower level of military justice is subject to (possibly unintentional) bullying and requires better oversight and supervision. It is not trusted.

"Justice" is served in different ways and every case is unique. Learned and independent judges (including now the Judge Advocate at CM) have to weigh an imperfect law (often hastily conceived by inexpert politicians without a view to the unintended consequences) against all the aggravating and mitigating factors. Often when verdicts appear incongruous, people have been prosecuted for the wrong thing (often for political reasons). The farmer (Martin) whose conviction for manslaughter was overturned having shot and killed an intruder would have not faced prosecution today for this action (but might have served just as long for illegal possession of firearms): the lesser offence was "lost" in an attempt to prosecute for the higher.

This is where the court of public opinion comes in. My exposure to the Special Needs community in Defence has suggested that they have the capacity to be both extremely professional and stunningly cavalier. We don't know all the facts in this case (and maybe we shouldn't) but if the Telegraph had said in its reporting "trophy pistol and hundreds of rounds of (assorted) ammunition" there might have been fewer signatures.

There is much criminal legislation in this country which is badly thought through from firearms to foxhunting to foreigners overstaying their welcome: if our legislators were brighter and more honest, perhaps this might not be the case.

[lj101]

Debated as below;


House of Commons Hansard Debates for 20 Nov 2012 (pt 0004) (http://www.publications.parliament.uk/pa/cm201213/cmhansrd/cm121120/debtext/121120-0004.htm#12112057000003)

20 Nov 2012 : Column 554

During the search, the police uncovered the weapon belonging to Danny Nightingale, which was still in its container in a cupboard and a quantity of ammunition under his bed. I understand that the unit held an immediate weapons amnesty and that an embarrassingly large number of weapons turned up in the skip that was conveniently provided overnight.

Most parts of the Army have been engaged in dangerous and often bloody operations. Where special forces are different from the rest of the Army is that they do not leave that regime on coming back to the UK. Typically, as was the case with Sergeant Nightingale, they remain on very short notice to move for long periods, which entails keeping live ammunition in their kit. They are, of course, subject to the same law and the same internal rules as other parts of the Army, but the pressure and temptation on tired, overstretched men to take weapons and kit containing live rounds back to their accommodation is of a different order of magnitude. It is clear from the article by Sergeant Nightingale’s gallant former commanding officer, Colonel Richard Williams MBE MC, that the amnesty revealed that a number of people in the regiment had got into bad habits under the extreme pressure of operational tours abroad and the high-readiness cycle at home.

[AvionicToad]

The fact that so many SAS guys handed in weapons in the amnesty highlights the problem. (I believe the flatmate of Sgt. Nightingale is still serving a sentence.) The regular usage of non standard weapons, the operational tempo and way of life of our special forces, I imagine would make the brining back of firearms more prevalent than in other units.

How many occupations external to our Armed forces would place an individual in a situation whereby if they bring their tools of the trade home it would count as breaking the law, and if caught would result in a mandatory custodial sentence? I firmly believe that our Armed Forces are in a unique position and that they should not be judged in the same light as civilians.

A common sense approach more geared to the needs and expectations to the service in my opinion would be far better. Something akin to the Court Martial system before the Armed Forces Act 2006 (before the ECoHR forced various changes) would be more beneficial.

On the flip side I firmly believe that there should be a clear distinction between discipline and criminal offences (perhaps things have changed since my conviction I knew nothing about), but the very fact in the Baleiwai case the Commanding Officer and accused did not know it would result in a criminal conviction is ridiculous.

I'd appreciate any thoughts or comments on summary hearings anyone may have.

[AvionicToad]

I would say the dreaded ECoHR is to blame. (That said the forces mentality of respecting and not challenging higher ranks can allow for out and out corruption in certain instances. In my experience this needs addressing)

[VinRouge]

Heard rumours of threats to remove the op bonus for lads in theatre for minor disciplinary matters (eg hair too long or not wearing the correct I.p.e.)

I also find the idea of significant charges for accidental n.d. On ranges or in training somewhat outdated, and more likely for individuals to hide accidents than report them.

[Pontius Navigator]

unit held an immediate weapons amnesty and that an embarrassingly large number of weapons turned up in the skip

In the absence of either an amnesty or a skip it was not unknown for troops to discard live ammunition in the drains. Skips were then provided.

This was only 2 years ago at a pre-Afg training not that far from me.

Nearer me was an RAuxAF Regt FS who accumulated 'spare' ammunition in a lockup on base as a convenience rather than account and hand in to the armoury.

[Rigga]

"How many occupations external to our Armed forces would place an individual in a situation whereby if they bring their tools of the trade home it would count as breaking the law, and if caught would result in a mandatory custodial sentence? I firmly believe that our Armed Forces are in a unique position and that they should not be judged in the same light as civilians"

Rubbish! There are many people, service and civilian, out there who handle weapons and explosives all the time who do not take their "tools" home with them. They all seem to understand the importance of leaving their work securely at work.

When offered the chance of a weapon amnesty even his fellow SAS gave up their illegally held weapons indicating their new-found awareness of wrong-doing. To me this appears to be a case of shoddy oversight by SAS seniority who, possibly doing the same thing, created a "Norm" of keeping a few "trophies" behind.

Anyway, the Public have voted him out now - so no more bush-tucker trials for a while.

[parabellum]

There are many people, service and civilian, out there who handle weapons and
explosives all the time who do not take their "tools" home with them.
They all seem to understand the importance of leaving their work securely at
work.

Quite possibly, but they are not on an instant call-out basis either.

[Rigga]

Wrong again!
Very many are..and more than SAS in number too. They many not travel quite so far as the SAS do. But they are on call.

[parabellum]

Well, don't be so mysterious Rigga, who are you talking about in such large numbers whose only difference to the SAS is that they 'might not travel so far'?

[Easy Street]

I suspect he is referring to CO19.

[Roadster280]

It's not just the "Justice" system that's fundamentally broken.

20-something members of HMF cause damage to their accommodation on a regular basis. As already identified, to some extent this goes with the territory. That, I understand.

However, if the transgressor is a Pte/SAC, he's probably going to jail. If he's a Fg Offr/Lt, he's probably looking at "non-judicial punishment". What's the difference in the crime? None. Whats the difference in the effect of a charge against the offender? Career over for the officer. This is based on the idea of an officer's integrity being unimpeachable. Clearly, in some cases, that is not the case. Riding a motorbike through the mess, torching objects various, sabotaging functions, these either are "character building" or are a discipline problem. Whether it was the block or the Mess should not be the deciding factor.

While for some, the issue of "RHIP" or "should have tried harder at school" is a convenient excuse; for certain others, the fact that they tried harder at school is exactly why they are NOT officers. Most of HMF's technical brains reside in the enlisted ranks rather than the commissioned ones, and the notion of "should have tried harder" is nonsensical.

I contend that there are more problems than simply the judicial system. In a world where it is commonplace for a junior officer to have less disposable income than a junior soldier/airman of equivalent experience/age, the idea of imposing "voluntary" fines on officers and making the OR tap the boards is both laughable and insulting.

Time for change.

[baffman]

Apologies, it was I who introduced the phrase "dreaded ECHR", but I can see that it has struck a chord.

Personally I don't buy it as a general explanation of what may have gone wrong.

Some of the critics of the ECHR's effect on the military justice system seem to be contradicting each other.

Has the ECHR's effect been to make the system insufficiently robust with offenders (as suggested in this thread), or has it made the system TOO robust with offenders, as claimed in the House of Commons debate about Sgt Nightingale?

[Pontius Navigator]

Whats the difference in the effect of a charge against the offender? Career over for the officer. This is based on the idea of an officer's integrity being unimpeachable.

Career over can also apply to certain airmen trades too. I once caught an RAF Policeman out in a lie. I passed the evidence to the duty RAFP SNCO. The following day OC Police asked if I wished the airman to be charged or allow a suitable in-house chastisement as a charge would lead to automatic expulsion from the RAFP.

[salad-dodger]

automatic expulsion from the RAFP
blimey, not much left for you in the RAF after being a plod, how much lower can you go?

S-D

[Roadster280]

True enough, PN. It's the same for RMP staff too. Although they can be charged (eg an ND), reduction to the ranks or a charge involving dishonesty is normally career terminating.

[Courtney Mil]

Riding a motorbike through the mess, torching objects various, sabotaging functions

Fortunately these abominable crimes resulted in career-enhancing weeks of orderly officer in my days as a Fg Off.

[Rigga]

Easy Street,
Thank you for your interjection, and I would include those who are not London-based too.

[muttywhitedog]

It's not just the "Justice" system that's fundamentally broken.

20-something members of HMF cause damage to their accommodation on a regular basis. As already identified, to some extent this goes with the territory. That, I understand.

However, if the transgressor is a Pte/SAC, he's probably going to jail. If he's a Fg Offr/Lt, he's probably looking at "non-judicial punishment". What's the difference in the crime? None. Whats the difference in the effect of a charge against the offender? Career over for the officer. This is based on the idea of an officer's integrity being unimpeachable. Clearly, in some cases, that is not the case. Riding a motorbike through the mess, torching objects various, sabotaging functions, these either are "character building" or are a discipline problem. Whether it was the block or the Mess should not be the deciding factor.

While for some, the issue of "RHIP" or "should have tried harder at school" is a convenient excuse; for certain others, the fact that they tried harder at school is exactly why they are NOT officers. Most of HMF's technical brains reside in the enlisted ranks rather than the commissioned ones, and the notion of "should have tried harder" is nonsensical.

I contend that there are more problems than simply the judicial system. In a world where it is commonplace for a junior officer to have less disposable income than a junior soldier/airman of equivalent experience/age, the idea of imposing "voluntary" fines on officers and making the OR tap the boards is both laughable and insulting.

Time for change.

Bang on. A Flt Lt failed her FT earlier this year at my unit. Strangely enough, the P1 paperwork never seemed to materialise, yet this same Flt Lt has issued several MAA & FW to SACs & Cpls for the same offence.

[parabellum]

I suspect he is referring to CO19.


Yes, I am aware of CO19 but as it is not a reasonable comparison I didn't think he would use that as an example. CO 19 being a specialist firearms unit with particular skills, the total of which form but one facet of the multi faceted SF.

[AvionicToad]

Baffman,

I can only speak from my experience, but I would say that the ECoHR in it's quest for a fair trial has changed the Court Martial system significantly. The armed forces are now subject to more scrutiny and governed by the same laws as the rest of the population. The lenient Court Martial's during the 70's and 80's during Operation Banner for murder and manslaughter, would simply not happen today. Welcoming back in to service of men convicted of manslaughter and murder - a Freedom of Information request to Ministry of Defence - WhatDoTheyKnow (http://www.whatdotheyknow.com/request/welcoming_back_in_to_service_of#incoming-316681) I cannot see the public finding that acceptable in this day and age.

I think Danny Nightingales Court Martial shows that some of the public would expect more lenient sentences for our armed forces because of the high esteem they are held in, and the high pressure and tempo of service life.

With regard to summary hearings Baffman, I know you have read The full report by Major McLeod entitled "Army abuses of power echoes of Deepcut." The recommendations of which can be found here.

http://www.publications.parliament.uk/pa/cm201213/cmselect/cmdfence/writev/service/service.pdf

He states summary hearings are not a fair trial, and Bale Baleiwai has set a prescient. He originally pled guilty, but at his recent trial de nova (trial granted in exceptional circumstances) he was found not guilty by a judge. This calls into question why the service got it wrong in the first place. I know that at least 1 Commanding Officer (now retired) has authorised the editing of police interview tapes, how many others are there?

What happens to the sailors, soldiers and airmen in the latest tranche of redundancies with summary hearing convictions? Most will not know they even have these convictions, and if they are unfortunate enough to choose a new career that need a clean CRB. They will be left stitched up by a flawed system, a MoD to stubborn to admit to making mistakes and a government that does not care about those who serve in our Armed Forces.

There are 3 million CRB checks carried out every year. I for one would not like to see a single summary hearing conviction recorded on any of them until the system is sorted out.

[downsizer]

blimey, not much left for you in the RAF after being a plod, how much lower can you go?


Mover....????? Lowest score in the AFCO.

[SOSL]

Used to be Clk (Typ).

I know; we had a Clk (Typ), attached to 2 Sqn RAF Regt, at RAFDet Salalah in 197x.

I gave him a manuscript which included the phrase "the landline network from the aerial farm".

It came back beautifully typed as "the lunchtime network from the animal farm".

Apologies for thread drift, flippancy and annoying ex-Clk (Typ)s.



Rgds SOS

P.S. He followed the rules and always wore puttees when typing.

[Easy Street]

parabellum,

I think it entirely reasonable to compare the weapon discipline expected of a high-readiness police firearms unit like CO19 with that of UKSF. The fact that UKSF have other facets besides weapons is irrelevant - are you suggesting that they should be held to lower standards of behaviour as a result? No one in the armed forces, not even UKSF or a fast jet pilot :-) is above the law.

[baffman]

I can only speak from my experience, but I would say that the ECoHR in it's quest for a fair trial has changed the Court Martial system significantly. The armed forces are now subject to more scrutiny and governed by the same laws as the rest of the population. The lenient Court Martial's during the 70's and 80's during Operation Banner for murder and manslaughter, would simply not happen today...Thanks AvionicToad. In your view, the ECHR has contributed directly to a situation in which armed forces personnel are now treated more harshly at Court Martial than they would have previously.

Another poster, admittedly posting from the U.S.A. but presumably ex-RAF, holds the completely opposite view that discipline under ECHR is insufficiently robust:

Thank goodness the average soldier isn't some testosterone laden adolescent, hell bent on a good night out with the assistance of many pints of beer, otherwise you might need a more robust system of discipline to keep them in check. Luckily the lads today finish needlework classes early to go and help old people cross the road (before getting an early night), they are the ones who need protecting from the injustices of brutish Army discipline. Thank God for the ECHR, hopefully they will also demand a complete ban on those nasty, shouty Sergeant-Major types as well. Incidentally, I don't know of any "Court Martial's during the 70's and 80's during Operation Banner for murder and manslaughter", lenient or otherwise. The Lee Clegg case was dealt with by the civil courts.

With regard to summary hearings Baffman, I know you have read The full report by Major McLeod entitled "Army abuses of power echoes of Deepcut." The recommendations of which can be found here.

http://www.publications.parliament.u...ce/service.pdf (http://www.publications.parliament.uk/pa/cm201213/cmselect/cmdfence/writev/service/service.pdf)

He states summary hearings are not a fair trial ...Agreed, Maj McLeod's recommendations deserve close attention and I would welcome a growing debate. Sadly the debate did not really exist at the time of parliamentary consideration of the Armed Forces Bills 2006 and 2011.

[parabellum]

I think it entirely reasonable to compare the weapon discipline expected of a
high-readiness police firearms unit like CO19 with that of UKSF. The fact that
UKSF have other facets besides weapons is irrelevant


That was not my point, pretty much all facets involve weapons, I think you will find, only one facet that I am aware of aligns with CO19.

are you suggesting that they should be held to lower standards of
behaviour as a result?

No, but the idea that one size fits all isn't, in my opinion, practical. It would not surprise me to learn that most, if not all, CO19 members were licensed firearms holders and able to keep some weapons in their home.

[AvionicToad]

With regard to Two’s in’s comments:-



Thank goodness the average soldier isn't some testosterone laden adolescent, hell bent on a good night out with the assistance of many pints of beer, otherwise you might need a more robust system of discipline to keep them in check. Luckily the lads today finish needlework classes early to go and help old people cross the road (before getting an early night), they are the ones who need protecting from the injustices of brutish Army discipline. Thank God for the ECHR, hopefully they will also demand a complete ban on those nasty, shouty Sergeant-Major types as well.

I would like to point out that the ECoHR and the right to a fair trial should not make the blindest bit of difference to discipline.

Discipline -the practice or methods of teaching and enforcing acceptable patterns of behaviour.

Crime -an action prohibited by law or a failure to act as required by law.

The Commanding Officer’s job is to ensure discipline, if there is no discipline there is just a disorganised rabble. Few would argue the CO’s discretion of how he chooses to discipline those he commands. However if the CO is to conduct criminal proceedings that are subject to the Rehabilitation of Offenders Act 1974 (With criminal records and consequences like Foreign and Commonwealth Soldiers threatened with deportation, and that follow an individual for the rest of their life) then there absolutely must be a fair trial. It is disproportional and discriminative to use the findings of a summary hearing which by its own definition deals with discipline. Summary hearings are not a fair and just process, they are designed for discipline and involve someone being reprimanded in an office, and the sailor, soldier or Airman taking it ‘on the chin’ and accepting the punishment.

The Summary hearing conviction rate is 90% (court martial is 50%). A CO is not a legally trained judge and there is irreconcilable conflict of interest. They are acting in the role of prosecutor, judge and disciplinarian. There are only two ways I can see forward. One is that every case brought up before a CO has to be a completely fair trial which is not conducive to good disincline. Therefore you have to remove the link between a criminal conviction and a service offence (much like before AFA 2006, and whatever indiscipline you may have been guilty of in the RAF will not follow you on your exit).

Returning to Danny Nightingale, he was subject in a court martial to an extremely inflexible law that no matter how mitigating the circumstances, carries a minimum sentence. Perhaps in the rush to align the Armed Forces justice system with the civilian justice system things have been overlooked.

Baffman, what a shame it was not discussed before the implementations of AFA 11. Unfortunately, the MoD are more intent on covering everything up than fixing the underlying issues, but it is such an important debate to have, which is why I am bringing it to PPRuNe

[baffman]

Related media coverage has been continuing, especially in The Times.

There is a parliamentary debate on the Service Justice System this Thursday (31 Jan) secured by Madeleine Moon MP and Duncan Hames MP.

[Pontius Navigator]

A CO is not a legally trained judge and there is irreconcilable conflict of interest. They are acting in the role of prosecutor, judge and disciplinarian. There are only two ways I can see forward. One is that every case brought up before a CO has to be a completely fair trial which is not conducive to good disincline

I was the prosecutor etc for one of the airwomen under my command. The charge was a man in her room. Her boyfriend was in Iraq. The man was a friend of her boyfriend. He lived off-base and he was drunk. She invited him to her room to make him a black coffee. The voyeurs in white hats saw them through the window. There was no impropriety but is was an open and shut case - ie contrary to SSOs.

I would have had words with her, which I did after I duly found her guilty and fined. Handbrake house allowed me no discretion, ie guilty as charged, and fined the cost of a B&B at a local hotel. Hypocritical?

That conviction will no doubt still be on file 20 years later.:\

[tucumseh]

As a civilian, may I ask a question?

At disciplinary hearings we (civilians) are (theoretically) permitted representation by Trades Union or simply a mate (similar to the McKenzie Friend concept). Are you given this right in the Services?

I ask because our MoD bosses have on numerous occasions ruled that this "right" does not exist if the hearing is presided over by a serving officer. Our Unions rolled over the first time this was raised at PUS level.

In general terms, the civilian world in MoD suffers the same problems discussed here. In our case, it is not just the "CO" who is allowed to be judge and jury, often in his own case. Until about 2003 it was everyone in your line management chain. However, the rule changed and your immediate line manager is (again, theoretically) no longer permitted to act in this way.

A minefield!

[CoffmanStarter]

This might be of interest ... on the back of "wishing" to improve the internal legal capability of the RAF, the service has been looking to recruit both Lawyers and Barristers ... as per the advert below.

http://i1004.photobucket.com/albums/af162/CoffmanStarter/image_zps533c0dc1.jpg

I have considerable experience dealing with the legal profession and I'm afraid you're not going to get the caliber of individual required at this kind of money ... even for someone newly qualified.

Coff.

[November4]

Armed Forces Justice system falling apart

Or perhaps not with 2 guilty verdicts

[500N]

It seems that way.

Will be interested to see what sentence he gets.

[BEagle]

After the verdict, Col Charles Barnett, from the Services Prosecuting Authority, said Nightingale's "fine record as a soldier" would be a matter considered when he is sentenced.

So now we have a Colonel making a public statement to the media, which might well influence the sentence. Why on earth would he make such a statement whilst the sentence is still sub judice? Quite astonishing - he should STFU at this stage.

Sgt Nightingale's legal team should rightfully demand that the verdict of this court now be quashed as a senior prosecutor has publicly displayed a less than impartial attitude which could be construed as an attempt to direct the sentencing decision - which would clearly be legally unsafe.

[November4]

My betting is that his sentence will be whatever period he has already served inside.

[SOSL]

Beags, old boy, it seems to me that Col Charles was simply stating the bleeding obvious.

Rgds SOS

[BEagle]

Nevertheless, in effect he has made an inappropriate speculative public statement concerning the sentencing policy....

Which makes this whole court martial process unsafe.

[WannabeCrewman]

I was the prosecutor etc for one of the airwomen under my command. The charge was a man in her room. Her boyfriend was in Iraq. The man was a friend of her boyfriend. He lived off-base and he was drunk. She invited him to her room to make him a black coffee. The voyeurs in white hats saw them through the window. There was no impropriety but is was an open and shut case - ie contrary to SSOs.

I would have had words with her, which I did after I duly found her guilty and fined. Handbrake house allowed me no discretion, ie guilty as charged, and fined the cost of a B&B at a local hotel. Hypocritical?

That conviction will no doubt still be on file 20 years later.http://images.ibsrv.net/ibsrv/res/src:www.pprune.org/get/images/smilies/wibble.gif

I distinctly recall seeing a Cpl threaten to charge a young AC who was helping a girl carry her (bloody heavy) bags to the door of the then womens barrack block - in broad daylight, with several other girls stood around the door helping her in as well. Didnt actually go in to the building or make motions to - took her bags to the door like a gent and dropped them off whilst she closed up her car.

Knew this chap personnally and he was a top guy. Hard working and always keen to learn. Wrong place, wrong time, wrong Cpl.

Same Cpl gave me a b*ll*cking infront of a shop full of people for wearing a black jacket he wasnt happy with. Nothing offensive, it just featured a small embroidered RAF roundel on one arm.

Cpl: "Whats f**king wrong with you? We're in public, we need to keep a low profile - Who the f**k briefed you about this trip?!"

WC: "You did Corporal"

Cpl: "....Put it away"

All this from a guy with a DPM daysack slung over his shoulder, stood next to another wearing a T-shirt of a topless Maxim girl.

Re: Sgt Nightingale: Yes, he did break the rules, he should have had a (small) slap on the wrist, but he wasnt the only one. Not saying that makes it okay. He seems like a highly professional chap who has had a bloody rough ride. He obviously is someone who takes a proactive approach to his profession- he's personally developed a dressing to deal with penetrating chest trauma. (https://www.prometheusmedical.co.uk/shop/PROMETHEUS/detail/nightingale-dressing/)

Certainly isn't the first time someone in UKSF has taken home ordinance from an exercise. (http://en.wikipedia.org/wiki/Ranulph_Fiennes#Officer) Difference is, this guy used his :ok:. He's now one of our more celebrated explorers.

I did find this line from the Crown rather amusing:

Sgt Nightingale had put the public at risk by having the lethal arsenal stored in an insecure house.

If you want to break in to a house occupied by 2 members of Herefords finest, you go right ahead...:rolleyes:

[The Old Fat One]

Beags,

What can and cannot be reported and spoken about before, during and after legal due process in the UK (civvy or military) is covered by a stringent set of laws. I'm pretty certain, said spokesperson would have been operating within these laws and guidelines - especially given the sensitive circumstances of this case.

JMO

[Al R]

I'm sure that whatever the punishment, this has legs.

Courts martial could be 'unfair', warns top military judge - Defence Management (http://www.defencemanagement.com/news_story.asp?id=23285)

[Mad_Mark]

Re: Sgt Nightingale: Yes, he did break the rules, he should have had a (small) slap on the wrist

So if it was a normal civilian who had an illegal weapon and nearly 340 live rounds (including 50 armour piercing rounds) at home then he should just "have had a (small) slap on the wrist"?

The law is simple and clear and comes with a MANDATORY 5 year prison sentence. Anything else will simply make a mockery of the judicial system, Military or Civil (although IMHO since the weapon and ammunition were found in a house in a civilian population, and not inside a military establishment, then it should have been handled in the civilian courts).

[WannabeCrewman]

Mad_Mark:

I've got no valid argument against that to be honest; as members of HM Armed Forces we are subject to military and civil law, and whilst I think any jury (and the general public) would be far happier with a UKSF operator possessing ammunition over some jacked up gun-nut, you are right. What he did is illegal.

I just cant help but think that he has been a bit of a scapegoat. The fact that they are apparently flying guys back from Herrick to testify against him suggests they are pretty keen to have this guy convicted.

[tucumseh]

Perhaps the most humbling experience in all my years was in 2003 while trialling the BOWMAN replacement in the Brecons with these guys. (Think about it, the replacement, months before the main contract was let).

A young chap is driven up and the CO invites me to accompany him out to the car park. The guy had almost lost his foot on a previous deployment and could barely walk. He had had his mate drive him hundreds of miles to beg to be allowed to go back on duty. They have a name for the physical test they have to pass, which escapes me. He'd have needed two rifles, one as a crutch. The CO was a kindly man, but the chap left almost in tears.

There are certain people in this world who deserve a little leeway.

[November4]

Certainly isn't the first time someone in UKSF has taken home ordinance from an exercise. Difference is, this guy used his . He's now one of our more celebrated explorers.

And the article you linked to says, he was charged and fined for the offence.

After a court case, Fiennes had to pay a hefty fine and he and his co-conspirator were discharged from the SAS. Fiennes was initially posted to another cavalry regiment but was then allowed to return to his regiment.

[Pontius Navigator]

taken home ordinance from an exercise

One imagines a small amount of personal ammunition, not 340 rounds, and this happens a lot. Rather than taking it home, and risk getting caught, it was common to slip the spares into the gullies on camp or in to the skip. Contractors continued to complain of live rounds turning up even AFTER amnesty bins were provided. It was often easier to discard the stuff illicitly probably as it was found some time after it should have been put in the amnesty bin.

Or the RAuxRegt FS that simply stored unused boxes in the unit lockup rather than dragging in the regular duty armourer and battling with the paperwork late on a Sunday night. It also meant their consumption was recorded as at the permitted rate and they would have spare ammunition for the future.

Squirrelling 340 rounds away smacks of convenience rather than need.

[Mad_Mark]

Squirrelling 340 rounds away smacks of convenience rather than need.
It doesn't matter what it 'smacks of', in the UK it is a very serious offence.

Whatever Sgt Nightingale did and for whatever reasons, maybe others will learn from this and not make the same 'mistakes' :=

MadMark!!! :mad:

[Canadian Break]

Gents, as I think I have said in a previous post. I have sympathy for Sgt Nightingale and I believe that the original CM recognised his circumstances and dealt with him as leniently as possible. Then, the journos get involved with their "Outrage" headlines and the clarion call is taken up by the great unwashed. I know the sort of hysteria that went on - a relative was a close neighbour of the Sgt and there were several heated conversations in our house when they came to stay. Fact is that it is an absolute offence - there is no defence, only mitigation. Outcome, a retrial in the full glare of publicity which leaves the CM absolutely no wriggle-room at all - and we end up where we are now. A salutory lesson to all concerned.

[SOSL]

The point I was getting at, in my short post, was that the British Justice system requires judges to consider the previous behaviour, e.g. record, of any defendant in deciding the sentence.

For instance, it is quite common to hear solicitors and barristers refer to their client's previous "good character" in their mitigation submissions.

The Col was simply referring to the existing sentencing policy. His comment couldn't influence the sentencing policy because it just described one aspect of the sentencing policy as it is.

Rgds SOS

[SOSL]

It's not any sort of offence unless it is proven it is an absolute offence - there is no defence, only mitigation.

It may be that Nightingale's confession and the gun and ammunition found in his possession by the authorities add up to "proof". So, from what we know it was proven.

Nonetheless he, just like all miscreants, deserves to have his previous record considered, in mitigation, when he is sentenced.

Rgds SOS

[Mad_Mark]

Nonetheless he, just like all miscreants, deserves to have his previous record considered, in mitigation, when he is sentenced.
How can he? The offence that he has been found guilty of holds a MANDATORY 5 year prison sentence :ugh:

MadMark!!! :mad:

[Pontius Navigator]

MM, I was not suggesting that squirrelling was acceptable but that it is a well know habit in the military. You grab what you can when it is available as you know full well that it will be in short supply, restricted etc next.

Not an excuse at all, simply a cultural thing. It is also a means of short cutting the admin red tape. That is why, in this case, he was found guilty as charged.

[Canadian Break]

SOSL, sorry to disagree old chap. You see, what I thought I said was that the offence of possessing etc is an absolute offence, there is no defence, only mitigation. Now, proving that the good Sgt had possession is up to the courts and, in this case, it seems to be that they have found, beyond reasonable doubt, that he was in possession in contravention of the 1968 Firearms Act (as far as the law requires). Ergo, I stand by my original statement.

[cuefaye]

The chap has been found guilty of the charges against him, and will be sentenced later: as is usual with many cases. Why all this angst?

[Trim Stab]

The point I was getting at, in my short post, was that the British Justice system requires judges to consider the previous behaviour, e.g. record, of any defendant in deciding the sentence.

For instance, it is quite common to hear solicitors and barristers refer to their client's previous "good character" in their mitigation submissions.

The Col was simply referring to the existing sentencing policy. His comment couldn't influence the sentencing policy because it just described one aspect of the sentencing policy as it is.

Rgds SOS

100% with SOSL here. The Col was only proffering justified mitigation to sentencing after the verdict, which is normal and acceptable.

Also 100% with Mad Mark - the convicted was foolish to imagine that the Regiment that he belonged to gave him some sort of exemption from the law, and the Regiment that he belonged to were 100% correct to throw the book at him for being so foolish.

I am 100% pleased to see him prosecuted, but 100% pleased to see that people who knew him stood by him.

I hope that he will now accept with dignity his punishment, that others in his Regiment and elsewhere will learn from his errors, and that society as a whole will gain. That is why he, you and we are British.

[Canadian Break]

Interesting that it was the prosecution talking about his previous character. Was this a pre-emptive olive branch in an attempt to shoe that the "system" has not simply closed ranks?

[parabellum]

The offence that he has been found guilty of holds a MANDATORY 5 year prison
sentence


That is the starting point but does it also allow for mitigating circumstances?

Looks as though it did the last time.

[SOSL]

CB - Referring to your #81 I don't disagree - about mitigation. I am just confused as to what the outcome of mitigation could be, in this case of an "absolute offence".

Turning to your #84 I know it seems a bit odd but, from what I recall of MAFL it was mandatory that the prosecution always had to put up a witness to the defendant's good character or, at least whatever they could find in favour of the defendant.

QFI - Your #82 It's not angst, it's interest and concern - it's why this forum was set up.

Rgds SOS

[Canadian Break]

Aggravating and Mitigating Factors

R v Avis [1998] 1 Cr.App.R. 420, CA.
The sentencing court should usually ask itself four questions:


What sort of weapon was involved? Genuine firearms were more dangerous than imitation firearms; loaded firearms were more dangerous than unloaded firearms. Unloaded firearms for which ammunition was available were more dangerous than firearms for which no ammunition was available. Possession of a firearm for which there was no lawful use (such as a sawn-off shotgun) would be viewed more seriously than possession of a firearm which was capable of lawful use.
What use had been made of the firearm? It was necessary for the court to take account of all the circumstances surrounding the use of the firearm: the more prolonged and premeditated and violent the use, the more serious the offence was likely to be.
With what intention (if any) did the defendant possess or use the firearm? The most serious offences under the Act required proof of a specific intent. The more serious the act intended, the more serious the offence.
What was the defendant's record? The seriousness of any firearms offence was inevitably increased if the offender had an established record of committing firearms offences or crimes of violence.

[baffman]

Nonetheless he, just like all miscreants, deserves to have his previous record considered, in mitigation, when he is sentenced.How can he? The offence that he has been found guilty of holds a MANDATORY 5 year prison sentence.However, a Court can impose a lesser sentence in such cases where it holds that exceptional circumstances apply.

The original CM did hold that a list of exceptional circumstances did apply, hence the reduction of sentence, although that is now water under the bridge.

[SOSL]

I have no idea why I'm writing this, except that, having been put out to grass, I have the time.

Let's, for a brief moment put aside the specifics of Sgt Nightingale's case and simply wish him and his family the best we can.

Most criminal offences in English law are only considered to be offences if you "meant to do it" (and you knew it was wrong and you wanted it to cause harm. etc etc).

I believe that an "absolute offence" as we have been discussing up and down this thread, is defined as one where you didn't have to mean to do it - you just did it.

So, contrary to the statements above that there is no defence - there is an obvious defence e.g. you didn't do it.

If it's found that you did do it, you can't say "well I didn't know it was wrong and I didn't mean to hurt anyone". You're "bang to rights".

On the other hand if it's found that you didn't do it your defence has been successful.

If you have been convicted, just like anyone else, you are entitled to tell the court about anything that might seem to reduce your culpability for the crime, given all the circumstances. I'm not sure but I think that might be grounds for a lesser sentence.

For instance I believe that the mandatory sentence for murder is life in prison, but it seems that many murderers are given a much lower "tariff" for how long they should stay in prison. I would think that the "tariff" probably depends on the strength of the mitigation.

Rgds SOS

[November4]

There is no defence to an absolute offence. You could show that the offence is not made out ie the item was not in your possession or you had no knowledge of it. A couple of examples where no was prosecuted or the offence was not made out I saw in a previous job

Bloke found with drugs in his coat pocket whilst wearing it - said he didn't know it was there as he had left his coat hung up in the cloakroom and someone must have put the drugs in the pocket. Unable to disprove that someone did put the drugs there and nothing to show he did know the drugs were there

A machette found in the boot of a car. Driver said that he not long ago bought the car and had not checked the boot so it must have been left there by the previous owner. Unable to disprove the story and nothing to show he did know the drugs were there

Wacky baccy cigarette found on the floor of a car with 4 occupants. All denied knowledge of it. Unable to show who was in possession of the cigarette so no prosecution

Man being chased by police throws a packet over a hedge. After being caught they go back and find the packet which contains drugs. Suspect denies all knowledge. No fingerprints fond on the packet so not prosecuted.
Unable to show that the packet was the one thrown by the suspect.

That job taught me one thing - deny everything and let the prosecution prove it. I saw many, many times the prosecution only went ahead due to the suspects admission.

[SOSL]

Hi, Nov4. You probably missed my point.

Again let me stress that I am not referring to Sgt Nightingale's case - just the criminal law as I believe it is enforced in England and, now I come to think of it, Wales (gydag ymddiheuriadau i fy mrodyr chwiorydd Cymraeg ans).

The defence against most criminal charges, is that you didn't do it or you didn't mean to do it. With an absolute offence I think that "didn't mean to do it isn't a defence but "didn't do it" is.

If there was no defence against an absolute charge we would be living in a NAZI-like or Stalinesque state.

Mitigation, on the other hand may modify the offenders treatment, for better or for worse.

Rgds SOS

[Canadian Break]

My understanding: one of the basic tenets of Ehglish Law is the principle of mens rea - i.e. guilty intent. So, in the case of an absolute offence the prosecution do not need to prove intent; in the case of Sgt Nightingale (sorry to return to him but it is apposite) the prosecution did not need to prove WHY he had the pistol, simply that he HAD the pistol. In the case of Theft, which is defined in the Theft Act of 1968 the prosection have to prove not only that the thieving git had the property belonging to another person but that he had the INTENT to permanently deprive the other person of their property. Interestingly, there a three statutory defences to this offence.

So, in the case of an absolute offence I'm afraid that perhaps we do live in a Nazi style state -Ignorantia non excusat - not knowing that you have comitted an offence is no defence!

Hope I have clearly expressed what I was trying to say! CB

[SOSL]

Thanks CB - if you read post #91 and #92 very carefully you will see that we are making exactly the same point. E.g. if he did it, he was guilty, even if he didn't mean to do it.

Rgds SOS

[Canadian Break]

SOSL

Put like that perhaps we should agree to agree!:D

[SOSL]

I agree to agree :ok:
Rgds SOS

[Canadian Break]

A true gent sir.

[Heathrow Harry]

my guess is that they'll give him 5 years but with a recommendation for a short time inside

the Daily Mail will run a campaign and Dave will let him out after a week

lets just hope he stays on the straight & narrow afterwards

edit - and the "Times" - he seems to have sold his story to them

[November4]

BBC reporting (http://www.bbc.co.uk/news/uk-england-23450909) that he has been sentence to 2 year sentence suspended for 12 months.

SAS sniper Danny Nightingale has been given a suspended sentence by a military court for illegal possession of a pistol and ammunition.

It is the second time the 38-year-old, from Crewe, Cheshire, has been sentenced after his original conviction was overturned on appeal.

He was given two years' detention suspended for 12 months at a court martial hearing in Bulford, Wiltshire.

Nightingale was convicted at his retrial earlier this month.

His original conviction for possessing the Glock 9mm pistol and 338 rounds of ammunition in his accommodation, near the SAS's Hereford headquarters, had been overturned on the basis he had been placed under "improper pressure" to plead guilty.

He was originally ordered to serve 18 months in military detention after pleading guilty in November 2012.

At his retrial Nightingale was sentenced to two years for possession of the pistol and nine months for possession of the ammunition - a total of two years to run concurrently.

He has been in the army for 18 years and is due to be medically discharged.