Pressure on the Army to drop the case against SAS Sergeant Danny Nightingale for illegal possession of a weapon is likely to grow, as it has emerged that the Ministry of Defence knew he was suffering from brain damage when the Army pressed for a retrial.
Army lawyers argued that Sgt Nightingale was fit to face a retrial despite Ministry of Defence officials being informed he was unfit for duty with brain damage, which could explain why he forgot to deal with a trophy weapon.
A military medical report in February recommended Sgt Nightingale be discharged from the Army on medical grounds, yet in March lawyers arguing for a retrial claimed he had been fit for duty for years, The Independent on Sunday understands.
The revelation could see the Service Prosecution Authority (SPA) finally drop the case against Sgt Nightingale, 38, who was sentenced to 18 months at a court martial last November for illegal possession of a handgun and ammunition.
The soldier, who suffered brain damage and memory loss after collapsing during an endurance run in the Amazon jungle in 2009, insisted he had forgotten he had the gun – a gift from Iraqi troops he had trained. His conviction sparked an outcry by SAS veterans and MPs, and Sgt Nightingale successfully appealed.
Yet the SPA was later granted permission for a second court martial, planned for July. The day after it was confirmed that the second case would go ahead, the Army's medical board decided Sgt Nightingale was no longer fit to serve as a result of brain damage.
MPs last night claimed the revelations called into question the integrity of decisions made at the MoD, in regard to a case that has raised deep concerns over support offered to service personnel.
The Conservative MP Patrick Mercer, a former Army officer, said: "If it turns out that Sgt Nightingale was deemed to be medically unfit to stand trial, there will need to be some very serious questions about the decision-making at the MoD, and the support he received from his superiors."
One source close to the case, who would not be named, said: "The SPA is desperately trying to regain some credibility in the wake of what has become a fiasco, but in the process they have lost judgement and are seeking a conviction at any cost."
The soldier has had "numerous" medical reports by military doctors that have "identified symptoms and problems", according to documents seen by The IoS.
Health concerns resulted in him being referred to a military psychiatrist last December. "Closer scrutiny" by military doctors found him suffering "persisting cognitive impairment and emotional problems". The expert's report concluded that "he is not fit for duty" and it was recommended on 8 February that he be considered for medical discharge.
Another medical report sent to SPA prosecutors in February, based on assessments of six experts and Sgt Nightingale's medical records, cited evidence of "continued cognitive difficulties" and admitted it was "feasible" that these "may have impacted on his ability to decommission the reportedly gifted pistol and ammunition". At the High Court in March at which the go-ahead was given for a retrial, lawyers acting for the MoD are understood to have argued that he had been deemed fit to serve since 2010.
Amid mounting evidence of the extent of Sgt Nightingale's health problems, the SPA is reviewing the "public interest" in pursuing the case and is gathering additional evidence on Sgt Nightingale's "medical status". Defence lawyers have asked Professor Gisli Gudjonsson, at the Institute of Psychiatry, to produce a new medical report. It is understood this will be used in an attempt this week to persuade the SPA to drop the case. The SPA has copies of most of Sgt Nightingale's medical records, but awaits "full information relating to his medical discharge", an SPA spokesman said.