R v Alexander Wayne Blackman
| Jurisdiction | England & Wales |
| Judge | Hallett LJ VP,Lord Thomas CJ,The Lord Chief Justice of England and Wales,Openshaw,Mr Justice Openshaw,Mr Justice Sween AW,Sweeney JJ,Sir Brian Leveson P |
| Judgment Date | 15 March 2017 |
| Neutral Citation | [2017] EWCA Crim 190 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 2016/05551/B1 & 2016/05552/B1,Nos 2016/05551/B1 and 2016/05552/B1 |
| Date | 15 March 2017 |
[2017] EWCA Crim 190
IN THE COURT MARTIAL APPEAL COURT
ON A REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSION
ON APPEAL FROM A COURT MARTIAL AT BULFORD
(THE JUDGE ADVOCATE GENERAL)
Royal Courts of Justice
Strand, London, WC2A 2LL
The Lord Chief Justice of England and Wales
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
Mr Justice Openshaw
Mr Justice Sween AW
Case No: 2016/05551/B1 & 2016/05552/B1
Jonathan Goldberg QC, J Israel and S Kong for the Appellant
Richard Whittam QC and Katherine Hardcastle for the Respondent
Hearing date: 7–8 February 2017
Approved Judgment
The Court:
Background
On 15 September 2011 a badly wounded insurgent was killed in Helmand Province, Afghanistan, by the appellant, Alexander Blackman, then an Acting Colour Sergeant in the Royal Marines. He was in command of a multiple (or group) of the Royal Marines serving as part of the British Armed Forces stationed at Command Post (CP) Omar.
In September 2012, unofficial video footage taken by one of the multiple was found during the course of the investigation of an unrelated matter. That led to the recovery of a total of six clips which set out in clear detail what had happened to the insurgent. Thereafter a decision was made to charge the appellant and other members of his multiple with murder; his defence was that the insurgent was already dead when he shot him. Although the civilian courts had jurisdiction in respect of a murder alleged to have been committed by a British citizen overseas, a decision was made that instead of being arraigned before the ordinary courts of justice, he should be tried by a court martial.
The trial before the court martial commenced on 23 October 2013 before the president, a lieutenant colonel in the Royal Marines, the Judge Advocate General (as the judge advocate) and six other members comprising two other marine officers, three Royal Naval officers and a Royal Naval warrant officer. On 8 November 2013 the court martial found the appellant guilty of murder but acquitted the two other marines against whom proceedings had been pressed to trial. No psychiatric report had been obtained before the trial and no psychiatric evidence was called at the trial.
For the purposes of sentence, the defence obtained a psychiatric report from Dr Orr who examined the appellant for 2 hours on 22 November 2013. In his report dated 27 November 2013, Dr Orr concluded that the appellant may have been suffering from a combat stress disorder which had gone undetected; Dr Orr made clear that combat stress was no defence to criminal misconduct, but could be considered as an extenuating factor in relation to punishment. The appellant was subsequently sentenced to life imprisonment with a minimum term of 10 years, less time on remand.
An appeal against conviction was made to this court in 2014 on the grounds then advanced which related to the status of the court martial system and the compatibility of its procedures with the European Convention on Human Rights. The court dismissed the appeal against conviction. It allowed the appeal against sentence, substantially influenced by the psychiatric evidence of Dr Orr. Having regard to all the circumstances, including the effect upon him of the nature of the conflict in Afghanistan, the nature of the command he exercised and the extreme nature of the stress, the minimum term was reduced to one of eight years: R v Blackman [2015] 1 WLR 1900, [2014] EWCA Crim 1029.
Subsequently the Criminal Cases Review Commission (CCRC) was asked to consider, on the basis of voluminous further information (including a Ministry of Defence report known as the Telemeter Report), a reference of the conviction and sentence to this court. On 6 December 2016 the Criminal Cases Review Commission issued a press release announcing that the Commission would refer the case to this court; on 15 December 2016 the Commission sent its report to this court.
There were three grounds for the reference on conviction:
(i) Further psychiatric evidence obtained since the court martial showed that both at the time of the killing and at the time of the court martial, the appellant was suffering from an adjustment disorder, a recognised medical condition. On that basis, there was available to the appellant the partial defence of diminished responsibility so that his conviction for murder should be quashed and either a conviction for manslaughter by reason of diminished responsibility should be substituted or a retrial ordered.
(ii) The Judge Advocate General had failed to leave the verdict of unlawful act manslaughter for consideration by the Board.
(iii) Possible incompetence by the former defence team (in particular in relation to its failure properly to investigate the appellant's mental health and so discover the potential partial defence).
The appellant sought to add further grounds on which the CCRC had declined to make a reference:
(i) The partial defence of loss of control.
(ii) What was said to be improper cross-examination of the appellant by the then leading counsel for the prosecution which should have been stopped.
(iii) Fresh evidence of a pathologist in relation to the deceased insurgent's apparent condition when he was shot.
At two hearings on 16 and 21 December 2016 for directions and to hear an application for bail, the court decided to order expedition and to hear first the ground of the reference and the appeal relating to diminished responsibility, allowing the appellant, if he was unsuccessful on that ground, to pursue the other grounds which would take much longer to prepare for the appeal. It did so on the following basis made expressly clear by the conclusion of the hearings in December 2016:
(i) The prosecution did not contest the psychiatric evidence relied on by the CCRC and the appellant, all of which was to the effect that the appellant was suffering at the material times from an adjustment disorder. The prosecution made clear it did not intend to call any psychiatric evidence. It also accepted that the psychiatric evidence was admissible under the provision in the Courts Martial Appeal Act 1968 equivalent to s.23 of the more familiar Criminal Appeal Act 1968 (as amended), even though no such evidence had been considered during the trial prior to the verdict. The issue for the court would be whether the mental disorder might have or had substantially impaired the responsibility of the appellant.
(ii) The court should consider whether on all the evidence relating to diminished responsibility the verdict was unsafe. If it concluded that the verdict was unsafe, a retrial could be ordered.
(iii) As an alternative to ordering a retrial, if the court concluded on the evidence that the killing was the result of substantial impairment by reason of an abnormality of mental functioning, it would be invited to consider substitution of a verdict of manslaughter by diminished responsibility on the basis that the appellant accepted he intended to kill or cause serious bodily harm to the insurgent. Such a basis was a prerequisite to the substitution of such a verdict, as diminished responsibility only arises if an intention to kill or cause really serious bodily injury is found.
The hearing of the appeal was fixed for February 2017 on the basis set out. As leading counsel originally instructed on behalf of the prosecution at the court martial and on the appeal was unavailable, new leading counsel was instructed. Because of a perceived lack of clarity in the appellant's pre-hearing submission on the issues set out in paragraphs 9 9(ii) and 9(iii), the issue was raised at the commencement of the hearing of the appeal. Having had the advantage of legal advice, express confirmation was given by the appellant that, if the court was satisfied that the partial defence of diminished responsibility was established, it could (and should) proceed to substitute a verdict to that effect, recognising that to do so could only be on the basis that the appellant intended to kill the insurgent: the other grounds of appeal (both referred and which the appellant had sought to add) would be abandoned. The prosecution, by leading counsel, agreed with that course. Having considered all the material, we consider that to have been an entirely realistic and sensible course to adopt.
The principal evidence at the hearing of the appeal comprised the video clips of the killing mostly recovered from the camera of the marine who took them, the evidence before the court martial, the psychiatric evidence and fresh evidence relating to the conditions under which the appellant served and the appellant's service and medical history.
The evidence in relation to the killing of the insurgent
(a) The deployment of the appellant and the command structure
In September 2011, the appellant was 37 years old having been a regular soldier for over 13 years, ultimately serving with J Company, which was one of three rifle companies in 42 Commando Group of the Royal Marines. He had served in Iraq in 2003 and again in 2004 and 2006.
He was deployed to Afghanistan in 2007 for 6 months. In March 2011, he was deployed a second time as part of what was known as Operation Herrick 14 where he served (save for a break in the UK between 15 and 31 July) until 12 October 2011.
The main British base was at Camp Bastion, near the provincial capital of Helmand Province, Lashkar Gah. 42 Commando Group was responsible for an Area of Operations known as 'Nadi Ali North'; it was located at Forward Operating Base Shazad, in South-West Helmand Province; it was under the operational command of Lt Col Murchison from April to October. 45 Commando Group was responsible for the area of operations known...
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