There is a risk, I am acutely aware, of this blog appearing to transmogrify into The Secret Judicial Cheerleader. Which it is not. By way of pre-emptive self-defence, I should point out that much of my professional life is spent politely pointing out to judges why, in my respectful submission, the course they are thinking of taking, which just happens to be adverse to my client, is wrong.

And sometimes, I dare say I’m even right about that. Because judges are fallible. From magistrates – especially magistrates – through to Supreme Court Justices, errors in reasoning and application of the law occur. And people far brighter than me forge glittering careers appearing in the higher courts, and publishing brain-stretchingly clever academic criticism, telling judges just how wrong their brethren – or they – are.

But what those types of argument have in common is that those making the case against judicial decisions do so in full possession of the relevant facts and law. Which is a precursor, you might think, to entering any debate, whether in court, print media or online. Know what you’re talking about. If you’re not sure why something happened, pause and find out, before leaping to the settled conclusion that, because that something instinctively offends you, it must be wrong. Or unjustifiable. Or evidence of systemic corruption. Or proof of some other cosy conspiracy theory.

It’s rather sad that I feel I have to open with such obvious points, but increasingly it becomes clear that they escape many who wish to inflict their opinions on their large, and often inexplicable, followings.

And so to Marine A, or Sgt Alexander Blackman. I touched on his case a few days ago, when his application for bail pending his appeal against his conviction for murder was adjourned. Yesterday the Court Martial Appeal Court (CMAC) heard the bail application, and refused it. The appeal will be expedited and listed as soon as possible next year, but the appellant will not be coming home for Christmas.


On cue, a band of merry speaking heads sprang up, Whack-A-Mole style, to denounce this decision. That so many did without being in court and before the Court published its judgment perhaps tells you something about the factual soundness of their premise. A choice few include:

So what happened? As a brief recap of the case, Sgt Blackman was convicted of murder in 2013 by a Court Martial, having shot an Afghan detainee at point blank range in 2011 while on tour in Afghanistan.  The case pricked emotions all round. For many, this was an act of cold-blooded murder which degrades the reputation of our military and endangers fellow servicemen, and Blackman was rightly prosecuted and convicted. For others, this was a mistake by a respected hero risking his life for our safety, and the morality and legality of such things done in the fog of war cannot be second-guessed by civilian commentators or media.

The details of the appeal are subject to reporting restrictions, but what we know is that the Criminal Cases Review Commisison has presented fresh psychiatric evidence which it is said relates to the appellant’s state of mind at the time of the shooting, and which renders the conviction for murder unsafe. It will be submitted that the correct verdict should have been manslaughter, on the grounds of diminished responsibility. There are also further grounds relating to, amongst others, alleged incompetence of the trial representatives. (The full issues for appeal, some referred by the CCRC, some raised for the first time by the appellant, are listed at para 9 of the judgment.)

Yesterday was the first effective hearing at the CMAC. Bail was sought and refused. Why? Was it, as Bannatyne says, because judges are incompetent? Was it because they are, in the poetic words of Jon Gaunt, “fucked up”? (A side note on Mr Gaunt – he is the radio presenter who, after being sacked by Talksport for calling a guest a “Nazi”, took his case against Ofcom as far as the High Court, where it was held that “the offensive and abusive nature of the broadcast was gratuitous, having no factual content or justification”. Which will no doubt be his epitaph.) Was Blackman failed by judges maliciously applying lesser standards to a war hero than they would a migrant rapist, out of loathing for their country?

Actually, the reasons are set out in the judgment, which, if one takes the time to read it, makes for a far less scandalous tale. As para 18 patiently explains, bail pending appeal is rarely granted. This accords with most practitioners’ experience of appellate proceedings. Bail will only be granted in “exceptional” circumstances. Before conviction, there is in most cases a presumption in favour of bail, and the court will need to be satisfied that there are substantial grounds for withholding bail (e.g. the defendant is a flight risk, or there is a risk of further offending). But where someone is convicted and is seeking to appeal, entirely different considerations apply. Exceptional circumstances must be made out in order for bail to be granted. What amounts to “exceptional”? The test is set out in case law. Normally, “exceptional” requires that the merits of the appeal are overwhelming, or that the appellant will have served his sentence by the time of the appeal, rendering it practically nugatory.

Here, neither of those was satisfied. The Crown, although neutral on the issue of bail, do not accept the premise of the appeal. They do not agree that the new psychiatric evidence establishes a potential defence of diminished responsibility, and will argue that the conviction for murder is safe (para 13). With this in mind, and the Court having seen the fresh evidence, it considered that the case cannot be seen as “overwhelming”. (And anyone who feels able to positively  disagree with this assessment without seeing the evidence is frankly beyond reason.)

Turning to the second limb, even if a conviction for manslaughter were successfully substituted for murder, it does not follow that by the time of the appeal, he will have served all of his sentence. Exceptional circumstances, the Court held, are not made out on the test that the Court has to apply. The test is not, as some would wish, whether one has sympathy with Sgt Blackman, or whether the judges know the true meaning of Christmas. It’s the same test that is applied to all murder convicts. Reaching for the trite point, if you were the family of the deceased, you would want the Court to follow the law when entertaining a bail application from your beloved’s killer, rather than to base their decision on the whims of the public mood. This is the rule of law, folks. It’s there to protect us all.

The timing of the appeal is also important. In recognition of the urgency of the appeal, the Court has agreed to sever the various issues raised in the grounds of appeal and to expedite the seemingly most pressing – that of the psychiatric evidence. The appeal on this ground is likely to be heard at the end of January 2017 or start of February. To those abusing the judges for their lack of compassion, for the Court of Appeal to list a substantive murder appeal hearing involving fresh psychiatric evidence within a month of the CCRC reference being received, is rare. This case, whether rightly or wrongly, is getting afforded attention and speed of treatment that many equally, if not more, meritorious appellants can only dream of.

Again, I’ll close with repetition: this is not, as some like to suggest, blanket support of the decisions that judges take. It’s not even saying that this particular decision is unimpeachable. It’s certainly not saying that people shouldn’t feel strongly about cases like this. But there’s a difference between criticism factually-grounded and forcefully expressed, and ignorant, gratuitous abuse such as that spat out by Bannatyne and his ilk.

The reactions of these louts should be contrasted with the quiet dignity of Sgt Blackman’s wife, who said:


Which perhaps, at this stage, is all that properly can be said.

thesecretbarrister Bad Law, Judiciary, Lawsplaining, Politics, Sentencing , , , ,

15 Replies

  1. As a member of the metropolitan ignoramus who, earlier this year, happily stumbled upon your blog like a p*ss head upon a kebab shop – I find your thoughts amusing, informative & a great simple(ish) guide to legal muggle’s like myself who have no idea in the slightest what goes on in the legal world, and has even got me interested in Law to the point I have downloaded a few ebooks that I’ll never read but has made me feel ‘intellectual’.

    Anyway Mr SB.

    People always have & always will on the whole be irrational, illogical base creatures consumed by personal & cognitive biases. I myself, even after reading your above post was battling with a ‘backfire effect’ taking place in my cranium due to my personal bias of having served in an infantry regiment creating a default position of ‘yeah, well those judges (I presume) haven’t been in battle so do not understand the pressures a frontline soldiers has to contend with’.

    I feel your plea to people for fact finding etc. before opening their trap, especially to those with an audience will not touch those outside of your profession or those who at least have a basic understanding of legal proceedings. I base this also on the empirically observed evidence gathered from reading your futile efforts in the ancient and historical art of twitter debate tennis/word tear up with those not so legally enlightened as your good self.

  2. So useful to have some sensible commentary on this. What you say is correct of course but a lot of people appear to have lost touch with reality since the referendum.

  3. The reactions of these louts should be contrasted with the quiet dignity of Sgt Blackman’s wife, who said:

    Very well said Secret barrister !

  4. It is good to hear this case discussed in a factual way. I can no longer comment on this case, due to the hail of abuse I received online for my giving my opinion.

  5. Yes, judges ARE infallible… I was at a Trial where the court did not provide the correct hearing loop and the judge refused to adjourn when I told him that as someone who is severely hard of hearing, I felt unable to enter into proceedings… He forced me to continue, saying that he would ask everyone to speak up…which of course they didn’t… he wouldn’t even let me sit closer to counsel.
    I was appearing in person with nobody to tell me what was happening when counsel and the judge were mumbling legal jargon. Halfway through the trial I panicked when I couldn’t grasp the cross examination questioning and I decided to withdraw, leaving me with £30k of legal costs! That judge even allowed a 100% uplift when there had been no documents in place to prove the other side had a CFA.
    I was stitched up like a kipper and am still fighting to get the Charging Order removed from my property.
    Justice? Only if you can afford representation.

  6. Sometimes I think it should be illegal to report on ongoing cases via Twitter. Little good comes of it.

    Actually, sometimes I wish we could just ban Twitter outright, for causing far more harm than good, but that’s my authoritarian instincts getting out of control again…

  7. Do barristers ever defend clients who they know are guilty? There can be a lot of money in it. Sgt Blackman did not murder that poor Taliban guy. He was killed in a war situation. Kill or be killed.

  8. Good account. NB Jon Gaunt’s case failed also in the Court of Appeal and was recently declared manifestly ill-founded by he European Court of Human Rights.

  9. Military Court Marshall finds him guilty …….. so why are the Civilian judges even involved……it was a military Trial not a civil one ….Please advise.

  10. I’m a very pro services member of the public, I was sickened by Al’s imprisonment and furious when he was locked up, having read your explanation, it has gone some way to lessen my anger at the judge involved, a fair explanation of the facts surrounding Al’s incarceration, nonetheless enfuriating, but at least now I have a better understanding of what’s happening……….thank you

  11. “I go to these lengths to pick up on these tiny points, because each time an idiot with an audience or their paymasters tell 2 million people that our judges are corrupt, or are wankers, or don’t care about decent normal folk, or are enemies of the people, this all bit by bit chips away at public faith in the rule of law”. Members of your profession voted Phil Shiner of PIL “Lawyer of theYear” or some such and you talk about these commentators chipping away at the rule of law from your lofty tower of infallibility! Meanwhile, soldiers who have been investigated 2, 3 and even 4 times are being subjected to the spectre (or reality) of trial by IRA sympathisers and IHAT continues, yet you belittle them when they complain about the way they are being treated in the only way they can. (I will exclude the multi-million follower virtue (vice?) signallers from this). Of course, you cannot restrain from expressing your contempt for that horrible rag the Daily Mail which brought to light the dealings of Shiner and his ilk and also was responsible for the upcoming retrial of Marine A. I think you are underestimating the feelings of the humble Tommy. What happens in the height of battle is easy to criticise from a padded bench but less so when your lifeis on the line.

  12. Alas, how much easier it is to react off the cuff, than to investigate facts and inform oneself before commenting.

  13. You write as if the prosecuting legal community doesn’t “base their decision on the whims of the public mood. ” Where have you been these last few years ?

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