Make an example of Danny Nightingale? They chose the wrong guy

The father of the convicted SAS man says any civilian court would have acquitted him. Military courts must be made more transparent

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The Independent Online

Being his dad, I suppose you would expect me to think the conviction of Danny Nightingale is wrong, and I do. My son was found guilty last week by a military court of illegally possessing a pistol and ammunition. "Quite right, too," you might say. The gun was found at his home. Further, Danny changed his account, from saying how and where he got the gun to denying knowledge of it. On the face of it, it doesn't look good.

But I, and now many expert witnesses, are convinced that a major injustice has been done. A man whose proudest moment was the day he joined the SAS and who served loyally, dutifully and entirely as required by his commanders, is threatened with prison, when what he really needs is a level of care the Army seems incapable of providing.

Further, to my mind, somebody has been trying to make an example of Danny. If so, they have gone for the wrong guy. He will fight his conviction and, if justice has anything to do with it, he will emerge vindicated.

In September 2011, acting on a tip, police raided the house where Danny was nominally sharing with a colleague, "Soldier N". The colleague went to prison, accepting responsibility for the military hardware found at the house, except for the pistol and ammunition in the back bedroom, where Danny slept when he wasn't at home with his family. When interviewed, Danny said he had been given the pistol in 2007 by Iraqis he had helped to train. He apologised profusely, saying "I haven't got any excuse" about the 300 rounds of ammunition also found.

That would have been that, except that Danny is suffering from severe brain damage, the extent of which is still not understood fully. In 2009, he fell into a coma while taking part in a fundraising endurance run in the Amazon. He has at last been diagnosed as having a "confabulation" problem. This is when someone unwittingly "fills in" gaps in their memory with imagined material. Dr Susan Young, of the Institute of Psychiatry at King's College London, says it is common among people with traumatic brain injury. "Some people confabulate 'floridly', ie, very obviously, so that elaborate claims are made that are clearly untrue, even though the person believes them sincerely. It was documented in the medical records, soon after his coma, that Danny did indeed confabulate, and this was noted without formal testing so it must have been very obvious at the time. He has made a remarkable recovery, given that he had a temperature of 111.2F, but there are still some memory problems in certain areas, including a tendency to produce subtle confabulations that are not bizarre. Without formal testing using validated tests, this makes them difficult to detect unless you know that his account is inaccurate as what he says is plausible."

After a series of neuropsychological tests, Dr Young satisfied herself that Danny was being entirely candid, to the extent that he was able. Importantly, he passed a well-recognised test of "memory malingering". At that time Danny appears to have had little insight into the extent of his tendency to confabulate. Things began to fall into place when his wife, Sally, later pointed out to him that his memory of one trip to Iraq had never taken place. Other parts of what he "remembers" are similarly open to doubt. In a curious way, the more questionable his evidence, the more it helps his case legally.

Professor Gisli Gudjonsson, a pioneer in the study of those who confess to crimes they have not committed, agrees. He points out that in interviews with both police and Army, Danny said things which were not only untrue but also served no advantage, suggesting it originated from a genuine memory problem. "Both his statements, tellingly, lacked quality of detail and contained subtle inconsistencies over time," says Professor Gudjonsson. "I have serious concerns about his current mental functioning and there are significant residual problems that are relevant when you evaluate his performance in the two police interviews."

There are further reasons why there is much more than "reasonable doubt" about Danny's guilt. Soldier N also had a Glock 9mm pistol, identical, bar the serial number, to the one under Danny's bed, also made in Austria in 2003. The prosecution agreed that both were acquired by coalition forces in Iraq in 2003, when Soldier N was serving there. Danny didn't go to Iraq until 2007, long after Operation Plunder, which tightened up on soldiers bringing guns back. So how on earth did they end up in the same house? Danny said in his interview that he had stripped down and reassembled the gun. Yet there were none of his fingerprints or DNA on it when the police swooped. And what is the motive of Soldier N for giving evidence against Danny? That, too, begs a great many questions. Danny, now forbidden from speaking publicly, is not prone to biliousness. He would only have said that he is "disappointed".

To my mind, Danny is a scapegoat. Anyone in the SAS will tell you there are too many unlicensed weapons sloshing about. They had an amnesty at the base and filled a skip with "souvenirs". And the military, acting on a tip-off about Danny's former friend, didn't want to miss an open goal. Danny did not endear himself to the authorities by going public about the accusation against him. Now, it seems to me, he's paying for it. But they've gone for the wrong guy.

Danny is typical, though, in that he loved and believed in his work so much that he would make out nothing was wrong. The world's most celebrated regiment doesn't do whingeing. You just get on with it. But nobody seems to be looking at the emotional cost. He is paying for a lax system that got out of hand. And the military system of justice must be more accountable and transparent. Surely no civilian court could have reached the same conclusion?

We are not fighting this just for Danny, but for everyone in the armed forces.