The Marine A judgment – a handy 10-point guide

 1. So, what’s this “Marine A” malarkey all about then?

Marine A, or Sgt Alexander Blackman, today succeeded in his appeal against his conviction for murdering a wounded Taliban insurgent whilst on a tour of Afghanistan in 2011. The Court Martial Appeal Court (CMAC) quashed his conviction for murder and substituted a conviction for manslaughter on the grounds of diminished responsibility.

2. This sounds familiar. Hasn’t he already appealed?

He has indeed. Following his conviction for murder before a Court Martial on 8 November 2013, when he was sentenced to life imprisonment with a minimum term of 10 years, he appealed against his conviction and sentence to the CMAC in 2014. On 10 April 2014, the CMAC refused his appeal against conviction, but reduced the minimum term (the minimum period before a life prisoner is eligible for release) from 10 to 8 years.

3. If his appeal against conviction has already been refused, how come he gets another?

Following the refusal of his appeal, Blackman applied to the Criminal Cases Review Commission, the independent statutory body set up in 1995 to investigate potential miscarriages of justice, following a series of notorious errors including the  Birmingham Six, Guildford Four and others. If the Criminal Cases Review Commission considers that new  evidence or a new legal argument has emerged, which leads them to conclude that there is a “real possibility” that the Court of Appeal (or CMAC) will quash a conviction, they can refer the case back to the Court of Appeal/CMAC. This only happens in a fraction of applications to the CCRC. On 15 December 2016, Blackman became one of the fortunate ones.

4. What was the “new evidence or argument”?

At his first appeal, it was unsuccessfully argued that the Court Martial system – a peculiar, sui generis legal tribunal not entirely misrepresented by the depiction of the trial of Blackadder for the slaughter of Speckled Jim the pigeon –  was not compatible with the European Convention on Human Rights. Subsequently, psychiatric evidence has emerged which it is said would, had it been available at trial, have afforded him a partial defence to murder.

 

5. A defence! So he didn’t do it – is that what the Court said?

It depends what you mean by “it”. If you mean murder, then that is correct. The CMAC concluded that, for the reasons below, the conviction for murder was unsafe. However, it was confirmed by the Court – and agreed by Blackman – that he had deliberately shot and killed a wounded, defenceless Afghan insurgent at point blank range. The details of the killing, which were captured on video and later emerged to form the primary evidence against him, are set out in paras 17 to 22 of the judgment and are worth reading in full. They are not pleasant. In summary, on 15 September 2011, Blackman was leading a foot patrol of around eight marines in Helmand Province. After an Apache helicopter opened fire on two armed Taliban insurgents, Blackman was ordered to undertake a battle damage assessment. His patrol found one of the insurgents badly injured in the middle of the field. The marines took away his weapons and moved him to a position where he was out of sight of the operational headquarters. The video then records a discussion between the marines as they contemplated whether to patch the insurgent’s wounds or to kill him. The appellant checked that the helicopter had moved out of sight, and then drew his pistol. He fired a shot into the insurgent’s chest, watched his body writhe back and forth for 15 seconds and said, “There you are, shuffle off this mortal coil, you cunt.” As the insurgent died, Blackman continued: “It’s nothing you wouldn’t do to us. Obviously this doesn’t go anywhere, fellas. I’ve just broken the Geneva Convention.” None of those facts are disputed. The partial defence that the Court found was established, “diminished responsibility”, has the effect of reducing what would otherwise be murder – unlawfully killing someone with intent to kill or cause really serious harm – to manslaughter.

6. He shot a man in cold blood – how is that not murder?

The defence of diminished responsibility is set out in section 2 of the Homicide Act 1957. It applies only to murder, and provides, in short, that a person who would otherwise be guilty of murder should not be convicted of murder if they were suffering “from an abnormality of mental functioning which (a) arose from a recognised medical condition, (b) substantially impaired [the defendant’s] ability to do one or more of the things mentioned in subsection 1A; and (c) provides an explanation for the defendant’s acts in doing or being party to the killing.” The relevant “abilities”, one of which has to be substantially impaired, are set out in ss1A as the ability (a) to understand the nature of the defendant’s conduct; (b) to form a rational judgment; or (c) to exercise self control. In short, the defence is designed to ensure that a defendant whose culpability is reduced because of substantial impairment caused by an “abnormality of mental functioning” is not punished as severely as a defendant who commits murder knowing and understanding exactly what they are doing. The law does not completely exculpate them – a conviction for manslaughter and a hefty sentence follows, but the consequences are not as serious as a conviction for murder, with the mandatory life sentence that attaches.

7. So how was diminished responsibility argued in this case?

After his conviction but before his sentence, a psychiatric report was obtained, which opined that Blackman might be suffering from an undetected combat stress disorder. This was new – there had been no suggestion at the original trial that Blackman was mentally unwell; his (rather implausible) defence had been that he thought the insurgent was dead when he shot him. However the psychiatric report set bells ringing, and a number of further reports were obtained in the course of the CCRC investigation. Three psychiatrists all agreed that at the time of the killing, Blackman was suffering from adjustment disorder, a recognised medical condition with symptoms that include depressed mood, anxiety, inability to cope with a situation and a degree of disability in performance of daily routine. Out of the 20 to 25% of all soldiers who suffer mental health problems, the most common diagnosis is adjustment disorder. The symptoms are often masked and not apparent, either to the person suffering or to onlookers. A sufferer might appear to others to plan and act with apparent rationality. In Blackman’s case, each expert, who had carefully examined him, agreed that this abnormality of mental functioning substantially impaired his ability to form a rational judgment and exercise self-control. In other words, that the defence of diminished responsibility was made out.

8. What did the prosecution say about this?

The prosecution did not dispute the content of the psychiatric evidence, nor did they object to it being adduced at the appeal (there is a high bar for “fresh evidence” being admitted by the Court on an appeal). The prosecution accepted that the appellant suffered from adjustment disorder; however, they said that it did not have the claimed bearing on his actions. It was clear from the video that he knew what he was doing and intended to do it. It could not be proved that the adjustment disorder was operative at the time of the killing, and in any event Blackman’s judgment was not substantially impaired. The conviction for murder, they said, should stand.

9. And the Court agreed with the appellant?

It did indeed. It held that had the psychiatric evidence been before the Court Martial in 2013, the Board would have had to consider the issue of diminished responsibility, and that this could have affected their decision to convict of murder. The verdict was therefore unsafe. In arriving at this conclusion, the Court looked at the evidence of Blackman’s condition prior to his deployment to Afghanistan – how he was an exemplary, mild-tempered soldier up until the death of his father, and became “a husk of his former self” – and the conditions in which he was operating. He had insufficient training in Trauma Risk Management, lost the support of close mentors who were killed in action, and was working in a particularly dangerous, isolated environment. There were numerous stressors, the Court found, including very recent attempts on Blackman’s life, one of which was a grenade attack a month before the killing in which he escaped with his life by a whisker. The Court accepted that Blackman perceived a lack of support from his commanding officers, and that his cognitive function at the time of the killing would have been affected by radio chatter suggesting that another attack was imminent. Taken together, these amounted to “exceptional circumstances” the combination of which, applied to his adjustment disorder, substantially impaired his ability to form a rational judgment and his ability to exercise self-control. His actions, terrible as they were, had to be put in the overarching context of his disorder.

The Court then had to decide whether to remit the case for a retrial for murder, where a Court Martial could consider the evidence and the defence of diminished responsibility afresh, or to substitute a conviction for manslaughter today and be done with it. Given the Court’s findings above, they exercised their power under s.14 of the Court Martial Appeals Act 1968 to substitute a conviction for an alternative offence.

10. So what happens next?

He will be sentenced for manslaughter on a date to be fixed. There are no Sentencing Guidelines for manslaughter, but given the evident sympathy of the Court exhibited in the judgment, it would not be a surprise if they passed a sentence which resulted in Blackman being “time served” and immediately released. At the very least, it will be significantly below the 16-year equivalent sentence passed for murder (to arrive at the “minimum term” for murder, you take the appropriate determinate sentence that would be passed and chop it in half, to reflect the fact that automatic release applies to determinate sentences at the halfway stage).

Meanwhile, we can look forward to lots of angry people getting angrier and angrier, without bothering to read the judgment or acquaint themselves with the facts. For some, Blackman is a national hero who should never have been prosecuted at all for dispatching a murderous terrorist in the fog of war. For others, the prosecution of our own who, in their own, boastful admissions, breach international law and kill harmless, injured enemy combatants, is a mark of civility that stands us apart from the enemy.

For my part, I would urge everyone, whether of either view or none, to read the judgment in full. There is plenty to be learned, whether it’s a grim parable of the casual barbarity into which good people can descend, or an invaluable insight into battlefield conditions that most of us are fortunate enough never to have to endure.

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FOOTNOTE: The barometer of good judgment otherwise known as Matthew Scott (@barristerblog) makes a vital point buried in the judgment. Neither the result nor the judgment in any way amount to a criticism of Blackman’s original legal representatives at trial, nor the original Court Martial. His condition was invisible and he refused to allow his team to pursue a psychiatric defence out of fear of stigma. Those on social media attacking Blackman’s legal team do so from a position of guaranteed ignorance.