Follow David on Twitter.
It's no secret that I'm not a fan of Britain's gun laws, which are among the toughest anywhere in the world, so tough even that our Olympic and Paralympic teams are forced to train in that well- known wild west destination of Switzerland – where 17% of adults are gun owners, and crime rates are low – which makes me a somewhat biased observer of the Danny Nightingale case that has angered the nation during this past few weeks
My attitude to gun control, which I touched on when writing about household defence, is best described as American, or more accurately Texan. So the imprisonment of an Englishman – let alone a special forces war hero, and leaving aside the mitigating circumstances – for the simple possession of a firearm, in his own home, and without criminal intent, leads me to a great sadness.
There was a time – when our nation was home to men such as Lords Acton, Macaulay and others – that the liberties of England, and the trust bestowed on the populace compared to the oppressive continent, was a source of pride and identity. "There is a perpetual interference with personal liberty over there that would not be tolerated in England for a week," Margot Asquith wrote, referring to America – a statement that you could not make today, when our country considers press regulation and price controls, prosecutes people for speech crimes, and has the most stringent gun controls in the western world. How things have changed.
Yet setting to one side my thoughts on gun control, the case of Sgt Nightingale raises serious questions that need answering. Now in no way of course am I suggesting that members of the military are above the law – such an idea is preposterous – but, as has been made clear in the Commons and in the press, the way in which this case has been dealt with leaves much to be desired.
The events in question, as far as we know – and as far as we can presume – "come about primarily by way of…inaction," as the Judge Advocate stated, and though military officials claim there is more to the case than this, such allegations are denied by Sgt Nightingale's lawyers and are absent from court transcripts. As I am not one for the presumption of guilt merely by the assertion that there is more to a case than meets the eye – if there is more, then why wasn't it cited in court? – it therefore seems to me, and the numerous MPs hugely angered by the case, that there is nothing more to it than the accidental possession of a banned handgun by perhaps one of the best qualified individuals we could trust to own such an item.
Of course there are those that feel that "the rules are the rules", that "the law is the law", and thereby feel that justice was served – intent or otherwise. However, this belief stands hostile to all common sense and reason. It also stands contrary to the traditions of English jurisprudence, in which we have public interest tests – and in this case a service interest test also – and it is here that a severe failing seems to have arisen.
Discovered first by the police, the civilian authorities – applying the public interest test – decided not to prosecute, perhaps recalling Orwell's words that "People sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf", yet for some inexplicable reason the military authorities took an alternate stance. Now it may be that the service interest test takes a more draconian and zero tolerance stance. However, that seems unlikely, since court martial guidelines require that operational effectiveness be taken into account and a near identical case in 2008 was dismissed.
It therefore stands to reason either that the public interest test was right and the service interest test wrong, or that the public interest test was wrong and the services test correct; I of course feel that the former is the case – that the service test was incorrectly handled – but, either way, an investigation should be called to ascertain why such a discrepancy occurred. It seems easy to assume that they cannot both have been handled correctly given their contradictory outcomes.
Likewise the public, and security-minded MPs, are within their right to demand answers to the other questions the case raises. Little attention has been given to the military authorities that handled the package, but since the gun was not packed by Sgt Nightingale, but was transported separately by the military, some culpability – though not criminal – surely stands with them, and some investigation to ensure that other banned materiel does not find its way into the country for more nefarious reasons must be conducted.
Similarly, the handling of the case, though subject to an appeal, should be questioned. Parliament is our sovereign body, and though we do not wish to see ministerial meddling in legal cases the independence of the courts operates in a framework crafted by the legislature. Parliament is within its rights to question whether it was right to abandon the old military justice system, whereby the jury reflected the background of the defendant, and whether public or service interest tests need reframing.
Parliament would also be correct in questioning whether adequate medical understanding was taken into account. In the court transcript, it is accepted by the judge advocate that Sgt Nightingale suffered a severe illness that damaged his memory. Yet the severity of it – reportedly a fever of 111F; a human rarely survives over 108F (hence the dramatics of the Elvis Presley lyric: "I feel my temperature rising…must be one hundred and nine") – does not seem to have had much weight in either the service interest test or the initial trial.
An effect of the illness, "confabulation", makes the victim suggestible and easily convinced of false events being true, and it is questionable whether any defendant with such a condition should be handled the same as others. Threatened by the Judge Advocate that he'd face a five-year sentence if he didn't plead guilty, it was – as Julian Brazier noted – "as though he seriously believed that this case did not involve exceptional circumstances". It seems that Blackstone's old formula that it's "better that ten guilty persons escape than that one innocent suffer" has been replaced by a desire to incarcerate by threat. But should people with confabulation or any other mental health issue causing such suggestibility be treat this way?
Such an investigation would be wider than that requested by the Defence Secretary and dismissed by the Attorney General as "inappropriate" – but it is of course within the latter's powers ,and could run alongside any concurrent legal case, particularly now that the High Court has reduced Sgt Nightingale's sentence to a suspended one ahead of a further appeal.
After the stress and suffering caused by this case – and reportedly over £100,000 in legal fees plus unknown costs to the taxpayer – the need to ensure that such a scenario does not repeat itself should be given thought in terms of clarifying the public and service interest tests, examining the handling of individuals with memory suggestibility of any kind, and the screening of belongings shipped by servicemen.
Indeed, to be inactive and leave matters with mere assertions of judicial independence, as well as being a great injustice to a man who has risked his life for our security over nearly two decades, seems to echo Dickens' Bleak House: "The one great principle of the English law is to make business for itself". After this shameful and sad saga, the least we should do is try to ensure that it's never repeated.