Armed Forces Justice system falling apart
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Cart before the Horse
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.
Last edited by Canadian Break; 11th Jul 2013 at 19:34.
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
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
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.
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Character reference
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?
Nemo Me Impune Lacessit
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The offence that he has been found guilty of holds a MANDATORY 5 year prison
sentence
sentence
Looks as though it did the last time.
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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
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
Last edited by SOSL; 14th Jul 2013 at 21:02.
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Mitigation
Aggravating and Mitigating Factors
R v Avis [1998] 1 Cr.App.R. 420, CA.
The sentencing court should usually ask itself four questions:
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.
Nonetheless he, just like all miscreants, deserves to have his previous record considered, in mitigation, when he is sentenced.
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.
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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
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
Last edited by SOSL; 8th Aug 2013 at 10:25.
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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.
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.
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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
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
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Absolute Offence
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
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
Last edited by Canadian Break; 14th Jul 2013 at 19:12.
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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
Rgds SOS
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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
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
Last edited by Heathrow Harry; 15th Jul 2013 at 10:23.
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BBC reporting 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.
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.
