dapaterson said:
I'm not conversant with British practice; was there an agreement between the prosecution and defence on sentencing that the judge chose to ignore? Or was there no such agreement, merely an informal "Plead guilty and we'll go easy?"
There is little detail on the actual circumstances.
The clearest statement is this quote from the BBC: "The soldier's lawyer Simon McKay said Sgt Nightingale, from Crewe, had pleaded guilty to the charge of possessing the gun because the judge in the case had implied he would face a five-year detention if found guilty."
And this from the Guardian: "Last Tuesday, Nightingale appeared before Judge Advocate Alistair McGrigor for a court martial. Such courts usually follow civilian sentencing guidelines, so the defendant was warned that if he pleaded not guilty he risked a five-year sentence. After a family consultation outside the courtroom Nightingale and his legal team took the judge's promise of leniency at face value and reluctantly pleaded guilty."
I have no info on any joint submission in this case.
In a Canadian Court Martial the law is as follows: "The courts of appeal across Canada, including the Court Martial Appeal Court in the case of Private Chadwick Taylor, 2008 CMAC 1, have held that the joint submission of counsel as to sentence should be accepted by the court unless the recommended sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest."
I have not been able to find case law re UK CM standards. The civilian Crown Prosecution Services have published guidelines for their prosecutors which include the following statements re plea bargaining: "The submission must not set out a proposal for a specific sentence. The submission on sentence is limited to setting out the applicable sentencing range and starting point in accordance with any relevant sentencing guidelines or authorities Sentencing Guidelines Council and Court of Appeal (Criminal Division) guidelines. Nevertheless, the ability to discuss and agree appropriate charges and an agreed factual basis for them provides a significant opportunity for the defendant to influence both sentencing range and starting point.
The submissions will be not dissimilar to a Plea and Sentence document. The prosecutor must ensure that the submissions are realistic. (Guidelines D9-D10)
They should:
list the aggravating and mitigating features arising from the agreed facts
set out any personal mitigation available to the defendant
refer to any relevant sentencing guidelines or authorities
make submissions as to the applicable sentencing range in the relevant guideline; and
include relevant ancillary orders such as compensation, directors’ disqualification orders, Serious Crime Prevention Orders and Financial Reporting Orders.
In the course of the plea discussions the prosecutor must make it clear to the defence that the joint submission as to sentence (including confiscation) is not binding on the court. (Guidelines D12)"
It looks like our prosecutors have more scope to zero in on a specif joint sentence than the Brits, and that our judges, while not without discretion, are more limited in rejecting such joint submissions.
Hope that helps a bit.
