Nightingale, R. v

Section 51 A of the Firearms Act 1968 requires a minimum five-year sentence for an adult convicted of possessing a prohibited firearm, unless exceptional circumstances relating to the offence or offender justify a lower sentence. Exceptional circumstances may arise from the combination of lawful initial possession, an absence of criminal purpose, significant cognitive impairment contributing to the continued possession, and otherwise exemplary service.

A sentencing court must give effect to the statutory minimum regime, while retaining sufficient judgment in an exceptional case to impose a just and merciful lower sentence.

Sergeant Nightingale pleaded guilty at a Court-Martial to possessing a prohibited firearm and ammunition, contrary to section 5(1)(aba) and section 5(1)(c) of the Firearms Act 1968. He received concurrent terms of 18 months’ and six months’ detention.

He applied for leave to appeal against conviction and sentence. The Court granted leave on the conviction application but deferred its determination because the available material was insufficient. It determined the sentence appeal, concerning whether the Court-Martial had made sufficient allowance for exceptional circumstances under section 51 A of the Act.

1. The appeal against sentence was allowed. The court reduced the 18-month term to 12 months’ detention and suspended that sentence for 12 months. It directed Sergeant Nightingale’s immediate release.
2. The court recognised that a Court-Martial is a specialist court and that military discipline is important. Nevertheless, section 51 A of the Firearms Act 1968, as amended by section 287 of the Criminal Justice Act 2003, imposed the applicable minimum-sentence framework. An adult convicted of the relevant firearm offence must receive five years’ imprisonment unless exceptional circumstances relating to the offence or offender justify a lower term.
3. The Court-Martial had correctly found exceptional circumstances. The appellate court agreed. The pistol and ammunition had initially come into the applicant’s possession lawfully. His continued possession was a serious breach of military security requirements, but it was not motivated by profit, criminal use, or an intention to transfer the items to others.
4. The court gave substantial weight to the applicant’s exemplary military service and to the significant brain injury he suffered. The injury caused cognitive and emotional impairment which materially contributed to his failure to deactivate the pistol and return the weapons and ammunition. Those circumstances, considered cumulatively, justified a sentence far below the statutory minimum.
5. Leave to appeal against conviction was granted, but that appeal was not determined and was left to take its appropriate course following advice.

• Court Martial Appeal Court: In [2012] EWCA Crim 2734, the court allowed the appeal against sentence, substituted 12 months’ detention suspended for 12 months, and ordered the applicant’s immediate release. It granted leave to appeal against conviction but deferred that appeal.
• Court-Martial at Bulford: On 6 November 2012, following guilty pleas, it imposed 18 months’ detention for possession of a prohibited firearm and six months’ detention for possession of ammunition, concurrently.