Neutral Citation Number: [2013] EWCA Crim 405
Case No. 2012/06575/D5  
IN THE COURT MARTIAL APPEAL COURT

Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Wednesday 13 March 2013

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)

MR  JUSTICE  MACKAY

and

MR  JUSTICE  SWEENEY
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R E G I N A

- v -

DANNY  HAROLD  NIGHTINGALE
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Mr William Clegg QC appeared on behalf of the Appellant

Mr David Parry QC and Colonel Charles Barnett
appeared on behalf of the Crown
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Judgment

THE LORD CHIEF JUSTICE:  
1.	On 6 November 2012 at a Court-Martial held at Bulford before Judge McGrigor (Assistant Judge Advocate General) the appellant pleaded guilty on re-arraignment to possession of a prohibited firearm and possession of ammunition, contrary to section 5(1)(aba) and section 5(1)(c) respectively of the Firearms Act 1968.  On 7 November 2012 he was sentenced to 18 months' detention on the first charge and six months' detention on the second, the sentences to run concurrently.  He immediately appealed against both conviction and sentence.  In this court he was given leave to appeal against conviction and his sentence was reduced to twelve months' detention and suspended for twelve months.  

2.	The unusual feature of the appeal against conviction is that the appellant was convicted on the basis of his own guilty pleas to both counts.  The facts underlying the conviction are fully set out in the judgment of the count, neutral citation [2012] EWCA Crim 2734.  We shall not repeat them.  In view of the conclusion which we have reached we shall briefly summarise the basic facts relied on by the Crown, without reference to any further evidence or indeed any of the documents received from the defence about the nature of the defence that would be advanced to the charge.

3.  On 16 September 2011, as a result of information received by the civilian police about Sergeant X (as he has been known throughout these proceedings), the rented accommodation shared by the appellant and Sergeant X was searched.  It appeared that the appellant, who was not present at the time, was in possession of a Glock automatic pistol and ammunition.  The firearm was designed to discharge 9mm bulleted cartridges loaded from a magazine.  It was in working order, found in a hard plastic case along with three magazines suitable for use with that weapon.  The case containing the firearm and magazines was found in a wardrobe in his accommodation.  The ammunition consisted of 122 x 9mm live rounds, 40 x 7.62mm live rounds, 50 x 9mm frangible rounds, 50 x 338 armour piercing live rounds, 2 x .308 live rounds and 74 x 5.56mm live rounds.  The ammunition was found in a plastic box underneath the appellant's bed.  There was no evidence to suggest that the firearms were ever used or ever intended to be used for any criminal purpose.  At the date of the search both the appellant and Sergeant X were abroad.  When the returned from operations the matter was further investigated.

4.  On the morning of 6 November 2012 Mr Ian Winter QC had a long consultation with the appellant.  At the end of the consultation it became apparent to him that he needed more time to discuss the issues.  Accordingly, he made an application to the Judge Advocate General.  It would have been readily appreciated by a professional judge that the issue which Mr Winter required further time to consider with the appellant would be likely to be the issue of his plea, particularly when it was clear, and had been clear for some time, that the essential facts on which the prosecution was based were not in dispute.  What was in issue was the possible defence to the facts.  At no time did Mr Winter seek any indication relevant to sentence from the Judge Advocate General.  He simply sought further time.  Nevertheless, Mr William Clegg QC, on behalf of the appellant, submits that such an indication was given by the Judge Advocate General.

5.  We agree with Mr David Perry QC that no criticism can be made of a judge seeking to make clear to himself, or seeking to clarify for his own purposes, the appropriate legal sentencing framework and to seek the assistance of one or both sides for such a purpose.  If all that had happened was no more than an enquiry to discover the relevant sentencing parameters, there would be no ground for criticism.  

6.  However, in our judgment, from a reading of the relevant passage of the transcript it seems abundantly clear that the Judge Advocate gave an uninvited sentence indication.  He had dealt with the case of Sergeant X, which involved alleged criminality on a slightly (not significantly) higher scale than that alleged against the appellant. Out of the blue the Judge Advocate said:

		"Can you just for my assistance confirm which of these [charges] engages, if not both of them, engages section 51A in the Firearms Act with a mandatory custodial term?"

The mandatory custodial term is five years' imprisonment.  Colonel Barnett, who appeared for the Service Prosecution Authority, told the Judge Advocate that the relevant mandatory term related to the first charge, but he went on:

		".... subject, of course as you will be well aware, you will recollect [a reference to the case of Sergeant X] that in exceptional circumstances, which I think we would have little difficulty in concluding will apply, the authorities provide that it does not have to be applied in these situations."

It is clear from that observation that the prosecution took the view that, notwithstanding the statutory minimum mandatory sentence, there were circumstances in the appellant's case which would in due course be highlighted which would enable the Court Martial, if so advised, to impose a sentence that was somewhat lower than the minimum mandatory term.  The Judge Advocate immediately referred to "the previous matter".  He then sought to draw what we regard as an important distinction.  He said:

		".... that of course was a guilty plea and I see this at the moment it is a not guilty plea to both charges."

The Colonel, sensibly and carefully, said:

		".... the simple answer, your Honour, is that it is the first charge only."

That response should have closed down any further discussion.  However, the Judge Advocate continued:

		".... I see, and just to make sure that I have got it right, is that should this matter be found .... a guilty finding be found, then in relation to it, if exceptional circumstances do not apply then there is no reduction for a guilty plea on  --

		COLONEL BARNETT:  That is correct, your Honour."

There is something of a problem about precisely what the Judge Advocate said.  It may be that the transcript is defective, because there is a moment where he may not have been heard and there are legal complications about a guilty plea counting on its own as an exceptional circumstances for the purposes of reducing a sentence below the statutory minimum.  But the Judge Advocate was there highlighting some of the problems that would arise for the defendant (as he then was) if there was a finding of guilt: ".... if exceptional circumstances do not apply [that is five years' imprisonment], then there is no reduction for a guilty plea", and the interruption occurred.  The Judge Advocate continued:

		"And it is a significant period of imprisonment."

(That may or may not have been a reference to the minimum mandatory term or to a term of imprisonment after making allowance for exceptional circumstances.)

		"All right, well it seems to me that it is very sensible that both counsel continue to look at this with, hopefully, achieving a way ahead."

"Achieving a way ahead", in our judgment, implies that the Judge Advocate was referring to proceeding without a trial.  Mr Winter applied for more time.  The Judge Advocate acceded to his application and said that "things should have become clear to both counsel".  Mr Winter said "They certainly will have crystallized", and the Judge Advocate ended the discussion:

		"Mr Winter, you are aware that I dealt with the previous matter, I am sure, of this nature."

That was a clear reference to the sentence of two years' detention that had been imposed on Sergeant X.  That is of particular significance because if, as seems to have been accepted on all sides the appellant's position was less culpable than that of Sergeant X, on the basis, following a guilty plea and exceptional circumstances, all of which applied in the case of Sergeant X, the sentence on the appellant would reasonably be expected to be lower than two years.  There is a further consideration: the significance of a sentence of two years or less is that it would be served in military detention, not in a civilian prison.  Indeed, that might also have the consequence that, notwithstanding the conviction, the appellant might be able to continue with his military career.

7.  We have gone through the transcript, but let us now strip out any obfuscation (or, as Mr Winter was to describe it to the appellant, "legal speak").  As we see it, what was being conveyed was that the defendant would be looking at a sentence of, or close to, the minimum statutory term if the case was fought, and certainly no longer than two years (and probably shorter) if he pleaded guilty; and that if he pleaded guilty he would have the advantages of serving his sentence in military detention rather than a civilian prison and with the possibility (no more) that his military career could continue.

8.  After the defendant had pleaded guilty, the Judge Advocate referred to a sentence of three and a half years as appropriate without the guilty plea, and that that sentence would not be the minimum term.  But that is all after the event.  What matters is the impact of the discussion to which we have referred in some detail.  We know how Mr Winter (a distinguished Queen's Counsel) understood it.  We know that from his statement, which is not in dispute, in which he said:

		".... I understood the observation [about Sergeant X] to be a reference to the fact that the Judge Advocate that the appellant's sentence should not be any longer than that imposed on Sergeant [X] no doubt in the light of the delay in the entry of any guilty plea.

		It was accordingly my duty to advise the appellant as to my understanding of what had transpired in court.  I did so.  What was very different following those remarks was that the court had made it plain that if the appellant fought the trial and lost he would lose the exceptional circumstances required to avoid a minimum five year sentence of imprisonment.  The stakes were thus clarified."

Mr Winter said that he then saw the appellant.  We have a contemporaneous note, which is accepted to be accurate, of part of what Mr Winter advised the appellant and some of the responses:

		"Clearest indication to me that if you go to trial and Judge finds you guilty, you will get five years in a civilian prison."

		"V rare that a judge does this/says this, but it was a very clear indication.  You will not understand it.  Judge used legal speak and not layman's terms.  In legal speak Judge saying you get five years if guilty."
		"DN [the appellant] understand what Judge was saying. 'If I fight this he will give me five years'."

		"IW [Mr Winter]: 'Did you hear judge say he was judge last time -- that was a direct wink to me -- obvious.'  IW suggesting judge wants case over with and a guilty plea not -- v strong possibility DN will not be given custody."

(There is a dispute about whether or not those words were used, but they do not matter for our purposes because there was then a discussion about Mr Winter's understanding of the Judge Advocate's comments.)

		"SM [the solicitor] -- ultimately DN's choice -- we will fight on .... DN's choice."  

The appellant's wife and father were present at the conference.  They both suggested that the appellant could not risk five years in a civilian prison.  His father said that he felt he had no choice, he must plead.  Mr Winter said that, in his opinion, the judge made a very clear indication.  He felt that the appellant's chances of success were now 10% if he went to trial  By contrast:

		"likely the judge will be lenient if plead now. SM -- DN's choice and family should discuss privately."

Following the discussion between the appellant and his family, the note continues:

		"DN will plead -- can't risk five years."

9.  An application was then made to the court for the indictment to be put again and the appellant pleaded to the charges.

10.  Against those facts we must consider the relevant principles of law.  It is axiomatic in our criminal justice system that a defendant charged with an offence is personally responsible for entering his plea, and that in exercising his personal responsibility he must be free to choose whether to plead guilty or not guilty.  Ample authority, from R v Turner [1970] 2 QB 321 to R v Goodyear [2005] 1 WLR 2532, which amends and brings Turner up to date, underlines this immutable principle.  The principle applies whether or not the court or counsel on either side think that the case against the defendant is a weak one or even if it is apparently unanswerable.  In view of the conclusion that we have reached, we shall express no opinion whatever of our view of the strength of the case against the appellant.

11.  What the principle does not mean and cannot mean is that the defendant making his decision must be free from the pressure of the circumstances in which he is forced to make his choice.  He has, after all, been charged with a criminal offence.  There will be evidence to support the contention that he is guilty.  If he is convicted, whether he has pleaded guilty or found guilty at the conclusion of a trial in which he has denied his guilt, he will face the consequences.  The very fact of his conviction may have significant impact on his life and indeed for the lives of members of his family.  He will be sentenced -- often to a term of imprisonment.  Those are all circumstances which always apply for every defendant facing a criminal charge.

12.  In addition to the inevitable pressure created by considerations like these, the defendant will also be advised by his lawyers about his prospects of successfully contesting the charge and the implications for the sentencing decision if the contest is unsuccessful.  It is the duty of the advocate at the Crown Court or the Magistrates' Court to point out to the defendant the possible advantages in sentencing terms of tendering a guilty plea to the charge.  So even if the defendant has indicated or instructed his lawyers that he intends to plead not guilty, in his own interests he is entitled to be given, and should receive, realistic, forthright advice on these and similar questions.  These necessary forensic pressures add to the pressures which arise from the circumstances in which the defendant inevitably finds himself.  Such forensic pressures and clear and unequivocal advice from his lawyers do not deprive the defendant of his freedom to choose whether to plead guilty or not guilty; rather, the provision of realistic advice about his prospects helps to inform his choice.

13.  In marked distinction, unlike the defendant's lawyers who are obliged to offer dispassionate, even if unwelcome, advice, the judge, subject only to express exceptions, must maintain his distance from and remain outside this confidential process.  The decided cases, Turner and Goodyear, identify specific exceptions to this rule.  They include the discretion in the judge, if invited to do so, to provide the defendant with a "Goodyear indication".  It is worth underlining that one of the reasons for the amendment of the Turner principle in Goodyear was based, at least in part, on the additional impact provided when an indication is given by the judge, rather than leaving the defendant to the advice of counsel.  As Goodyear explains, this "substitutes the defendant's legitimate reliance on counsel's assessment of the likely sentence with the more accurate indication provided by the judge himself".   Thus we must never minimise the effect of any observation about these issues when it is made by the judge.  If the judge chooses to respond to such a request, that would not constitute inappropriate judicial pressure just because the judge agrees to respond to a request by or on behalf of the defendant.  It is also open, and perhaps as far as the judge can ever go, to remind the defence advocate that he is entitled, if the defendant wishes, to seek a Goodyear indication.  But if he chooses not to do so, it remains wholly inappropriate for the judge to give, or to insist on giving, any indication of sentence.  Goodyear underlines that "the judge should not give an advance indication of sentence unless one has been sought by the defendant".

14.  There is one further exception to the general principle which we must mention.  There is one situation in which the judge is entitled to use his own initiative to give an indication of sentence.  It is where he decides to let the defendant know that the sentence or type of sentence will be the same whether the case proceeds as a guilty plea or, following a trial, results in a conviction.  The principle adopted in Goodyear derives from the final observations in Turner that "it should be permissible for a judge to say, if it be the case, that, whatever happens, whether the accused pleads guilty or not guilty, the sentence will or will not take a particular form, eg a probation order or a fine or a custodial sentence".  The basis upon which that principle is enunciated is that if the sentence is to be the same whether the defendant pleads guilty or not guilty, there is no extraneous additional pressure upon him.  He can make his mind up free of any worry about the level of sentence being affected by his plea.  The observation in Turner was made in the context of a judge who indicated that the question whether the sentence would be custodial or non-custodial would depend on whether the defendant pleaded guilty.

15.  The observations do not, however, mean that in a case where imprisonment is inevitable it is permissible for the judge on his own initiative, uninvited, to give an indication to the defendant that a very long sentence of imprisonment will be the consequence of conviction by the jury or by the Court Martial, and a relatively short one will follow if the defendant decides to plead guilty.

16.  In the final analysis, the question is not whether the Judge Advocate here contravened the principles which govern the giving of sentence indications.  Of itself that would not be decisive.  The question is whether the uninvited indication given by the judge, and its consequent impact on the defendant after considering the advice given to him by his legal advisers on the basis of their professional understanding of the effect of what the judge has said, had created inappropriate additional pressures on the defendant and narrowed the proper ambit of his freedom of choice.  

17.  Having reflected on the facts in this case, we conclude that the appellant's freedom of choice was indeed improperly narrowed.  Accordingly, the plea of guilty is in effect a nullity.  It will be set aside.  The conviction based on the plea will be quashed.

18.  There is sufficient material here to require the issue to be considered fully.  Accordingly, we shall order a trial to take place before a Court Martial on the basis of the present indictment, which may or may not be subject to amendment in due course when the Court Martial is convened.  

MR CLEGG:  My Lord, I have an application for costs from central funds.

	(The court conferred)

THE LORD CHIEF JUSTICE:  We agree with your application, but before you welcome it, there is a proviso.  We think that this should be on a Legal Services Commission basis with leading counsel only.  Is there any further submission you want to make?

MR CLEGG:  My Lord, that is not the rule that has applied to such applications historically.  The law has, of course, recently changed and were he to be charged subsequent to the change in the law, he would not be able to make any application at all.  But if the principle is accepted that costs do go with the event, then in my respectful submission they should be taxed in the ordinary way and the taxing master or officer will allow what is considered by him to be reasonable costs.  If the order is to be taxed, it follows that the taxation will only allow that which is reasonable, and therefore we would submit that that ought to be the rubric by which the order for costs is judged, and not any artificially imposed statutory figure that may well not be reasonable.

THE LORD CHIEF JUSTICE:  We will come back to that, Mr Clegg, thank you.  So far the only order we have made is that your client is entitled to his costs of the appeal.  We will discuss the issue of taxation and let you know.  Mr Perry?

MR PERRY:  My Lord, your Lordships have been kind enough to indicate that the direction is that the defendant be charges of which he was convicted.  My Lord, may I also seek a direction that he surrender to custody at the Court Martial on a date and time to be notified?  It is simply to ensure that there is an obligation to ensure his attendance.  My Lord, the power of this court to do that is derived from section --

THE LORD CHIEF JUSTICE:  Mr Perry, he is not to be detained in custody, is he?

MR PERRY:  No, my Lord, no.  It is simply --

THE LORD CHIEF JUSTICE:  It is administrative?

MR PERRY:  My Lord, it is simply administrative to make sure that there is a legal obligation to attend, so that there can be no misunderstanding when the Court Martial convenes.

THE LORD CHIEF JUSTICE:  Yes.

MR PERRY:  My Lord, there are two other matters, if I may.  In answer to my Lord, Mr Justice Mackay's question this morning, it appears by combination of the Court Martial Appeal Act and the Armed Forces Act, there is a power to amend the charges.  Without turning it up, just so that everyone is aware, it is a combination of section 19(3) of the Court Martial Appeal Act and section 126 of the Armed Forces Act.  Effectively, the power of the Director of Service Prosecutions is brought back into the appeal process.

My Lord, the final point is, of course your Lordships know that this matter has attracted a good deal of publicity.  The Contempt of Court Act 1981 applies.  It is not necessary for the court to make any order at all, but, my Lord, I simply mention that point because the proceedings, of course, are active as there is a retrial that has to take place.  My Lord, that is just by way of observation.

THE LORD CHIEF JUSTICE:  Thank you, Mr Perry.

	(The court conferred)

THE LORD CHIEF JUSTICE:  Well, Mr Clegg you are always persuasive.  Mr Clegg, we are told that section 31 of the Court Martial Appeals Act says: "Costs of successful appeal.  Where an appeal court allow an appeal, other than an appeal against sentence, they may, if they think fit, direct the payment by the Secretary of State for the costs to the appellant .... such sums as appear reasonably sufficient to compensate the appellant for any expenses properly incurred ...." and so on.

We will not specify from whom you may seek your costs.  There is obviously a target.  You have persuaded us that we should simply say: to be taxed in the appropriate way.  

We shall order that the defendant surrender to the Court Martial at a date and time to be notified.  As I made clear to Mr Perry, we do not think that that means that he should be remanded in custody, unless some new event crops up, which I am sure it will not.

MR CLEGG:  My Lord, I am grateful.  I noticed a degree of anxiety in the benches to the left of me and at the front at the mention of the Contempt of Court Act.  This is not, of course, going to be a jury trial, and it would seem to me that nothing has been said in this court today that could not be reported if they were so minded to do so.

THE LORD CHIEF JUSTICE:  I cannot think that anything that has been said by you or Mr Perry, or even by me, could constitute a contempt of court.  One can bear in mind that this will be a military court  -- a Court Martial Court with a judge presiding.  I do not think the press will be too inhibited, Mr Clegg.  Everything you say will be encaptured for future generations.

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