There is another sentencing point. Before the original sentencing, it was argued that his sentence ought not to include dismissal because he could usefully soldier on and the court accepted that. Since he is now due to be discharged anyway that argument does not hold water, so if he is convicted he might therefore be dismissed in addition to the sentence of detention (which, since it would be over 12 months, would have to be served not suspended). And he would also be left with the enormous bill of costs, as previously discussed. Presumably Sgt Nightingale's legal advisers would have warned him about all these risks before he decided upon the course of action he has followed.
But if he is now being discharged on medical grounds?( not sure) would that not mean that at sentencing, of found guilty, it could be argued that he is not medically fit to carry out a custodial sentence?
People are only let off serving their custodial sentences if they are dying, and sometimes not even then. A large proportion of those in prison and detention have medical conditions of one kind or another. So no, not really. But as you say, "it could be argued..."
What enthusiasm would that be? I am neutral; I am disinterested in the outcome, and have no view personally whether it ought to be an acquittal or a conviction, nor what the sentence (if any) ought to be. Those are matters for the judge and the board. What I am interested in is the process, the procedure, the evidence, the unfolding events, the highly unusual way the case has developed, the political aspects, and the possible implications for future cases. I am however keen to see the Court Martial working well, if possible.
The trial is nearing its end. The defence evidence is finished, and both prosecution and defence counsel made their closing speeches on Monday 8 July. On Wednesday the judge is due to sum up, then the jury (Board) will retire to consider the verdict. They can take as long as they need, but it is a reasonable guess the result will be known by Wednesday afternoon. If it is an acquittal on all charges, that will be the end of the matter. If there are convictions on one or more charges, sentencing will be on 26 July which allows enough time for a probation officer to prepare a Pre-Sentencing Report (a PSR is a legal requirement), and for there to be further legal argument - see my posts #340 and #343 - and mitigation points. As I understand it (without having heard all the evidence or argument), Sgt Nightingale's defence was to say that the weaponry was not his, and that he didn't know how it came to be in his flat. Faced with the statements he made to the police after arrest confirming in detail that the weaponry was his, his defence was confabulation. This means that the effects of the brain damage he suffered caused him not merely memory loss but a tendency to make things up (confabulate), so that his police statements should be discounted for that reason; there was psychiatric evidence to that effect. A further line of defence was the implication that this weaponry belonged to his flatmate, Soldier N, in addition to the other stash of weapons for which Soldier N pleaded guilty, has served his sentence of detention, and recently been released. It remains to be seen what the jury will make of these points.
Based upon Pete's summary, I know what I make of the defence 'argument'........... "Is this your gun?" "Might be; might not be.................Can't remember, I've been hit on the head" "You remember being hit on the head?" "Um........................."
Pete, if the defence is based upon confabulation, something that is entirely possible, is it the prosecutions responsibility to counter that with evidence to the contrary or merely to make their own case as convincing as possible. Clearly the Board will weigh the evidence from both sides but if the case for the prosecution is backed by firm evidence and the case for the defence (confabulation) is backed by firm evidence / testimony where does that leave the burden of proof ? Does the defence of confabulation have to fail before the prosecution can make it's case ?
In a criminal prosecution, the burden of proof always lies upon the prosecution; the prosecution must prove beyond reasonable doubt that the offence(s) was committed, and connect it with the defendant. D does not actually have to prove anything, but if the prosecution case is convincing and D fails to disprove it, the jury may convict. D might need to provide some alternative explanation for the facts which he cannot plausibly deny, i.e. alternative to his guilt. D routinely tries to throw sand in the eyes and put up a smokescreen, but where D has already admitted the offence on the record his options are limited. Was his confession fabricated? Coerced? Inadmissible? Mistaken? If none of these, confabulation is pretty much the last resort. The trouble is, if on his own admission things D says may be false, what weight will the jury give his evidence denying guilt now?
convenient outcome that would be...can see crims up and down the land banging each other on the head, fessing to loads of crimes then CONFABULATING and convicing some 'specialst' that it was the injury that made them lie...
The verdict was guilty, it turns out. Apparently the issue of whether the new sentence must be limited by the previous, quashed sentence is so contentious that it is being referred to the Court Martial Appeal Court for a ruling. It is not clear whether that CMAC ruling could be obtained in time for the convict to be sentenced on 26 July as planned. If not, there might be a delay until September because various participants will be away, I understand.
Just heard this on radio. How long did the guy already in chokey who lived with him get for simialr possesion?
The verdict didn't surprise me.......... .........apart from a bit of 'Careful what you wish for', I guess he can now blame his judgement was marred by his brain injury in deciding to re-pursue the case............ ..........in my opinion if you are up against the evidence in the first instance and get away with a light sentence, then 'kin accept it; don't push it, because it will nearly always go wrong.
