R v Marine AMarine A v Judge Advocate General
| Jurisdiction | England & Wales |
| Judge | The Lord Chief Justice of England and Wales,Mr Justice Tugendhat,Mr Justice Holroyde |
| Judgment Date | 17 December 2013 |
| Neutral Citation | [2013] EWCA Crim 2367 |
| Docket Number | Case Nos: 2013/05804/C5, 2013/05827/C5, 2013/05803/C5, 2013/05763/C5, 2013/05777/C5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 17 December 2013 |
[2013] EWCA Crim 2367
IN THE COURT MARTIAL APPEAL COURT
ON APPEAL FROM A COURT MARTIAL
IN THE DIVISIONAL COURT OF THE QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Lord Chief Justice of England and Wales
Mr Justice Tugendhat
and
Mr Justice Holroyde
Case Nos: 2013/05804/C5, 2013/05827/C5, 2013/05803/C5, 2013/05763/C5, 2013/05777/C5
and
David Perry QC and Katherine Hardcastle for the Service Prosecution Authority
Hugh Tomlinson QC and Peter Glenser, instructed by Coomber Rich Solicitors, for Marines A and B
Hugh Tomlinson QC and Marcus Tregilgas-Davey, instructed by Richard Griffiths & Co, for Marine C
Andrew Langdon QC and Piers Norsworthy for Marine D
Robert Smith QC and Richard WrightQC for Marine E
Clare Kissin for Guardian News and Media Ltd, News Group Newspapers Ltd, British Sky Broadcasting, Independent Print Ltd and Associated Newspapers Ltd
Oliver Glasgow for The Ministry of Defence
Hearing date: 28 November 2013
THIS SINGLE JUDGMENT CONTAINS IN PART A THE REASONS FOR THE DECISION OF THE COURT MARTIAL APPEAL COURT AND IN PART B THE REASONS FOR THE DECISION OF THE DIVISIONAL COURT.
PART A: THE REASONS FOR THE DECISION OF THE COURT MARTIAL APPEAL COURT
On 5 December 2013, we handed down the decision of the Court Martial Appeal Court. These are the reasons for that decision to which we have all contributed.
I. THE PROCEEDINGS AT THE COURT MARTIAL AND THE ORDERS MADE BY THE JUDGE ADVOCATE GENERAL
(a) Factual background
On 15 September 2011, a patrol of the Royal Marines serving as part of the British Armed Forces in Helmand Province, Afghanistan was conducting operations to secure an area from which insurgents were firing. In the course of the operation an Apache helicopter was called in and fired at one of the insurgents who was in an open field. He was severely wounded. The patrol was sent to examine what had happened in the area targeted by the Apache helicopter. They found him with severe wounds armed with a high explosive grenade and an AK47. He was no threat to anyone. The Afghan was then shot by one of the Marines and died.
A video recording was taken by one of the Marines with a camera attached to his helmet; it recorded the events with a sound track including the injured Afghan insurgent being dragged across a field and the shooting of the Afghan by one of the Marines who discharged his pistol at close range into the Afghan's chest. When the video was discovered and an investigation had been conducted five members of the patrol were charged with the murder of the deceased Afghan on 13 October 2012. The decision to charge them was made by the Service Prosecution Authority (the prosecution), a prosecution authority accountable to the Attorney General in the same way as the Crown Prosecution Service and wholly independent of the Ministry of Defence ( MoD).
The five were subsequently brought before a Court Martial presided over by the Judge Advocate General (the Judge). On 5 February 2013, prior to the arraignment before the Court Martial, the prosecution discontinued the proceedings against Marines D and E.
The case for the prosecution was that Marine A shot the deceased Afghan at close range and that B and C were secondary parties to the murder through encouragement or assistance. The video recorded by the camera on Marine B's helmet showed Marine A shooting the Afghan. It also recorded comments made by the Marines in relation to the Afghan and the shooting. Marine C had recorded disparaging comments about the Afghan and the shooting in his diary.
The trial commenced before the Judge and a Board on 23 October 2013. The Board is the equivalent of a jury in the UK's system of military justice, as it alone makes decisions on the facts, though, unlike a jury, it also has a role in sentencing. On 8 November 2013, the Board found Marine A guilty of murder and acquitted Marines B and C.
These applications for leave to appeal to the Court Martial Appeal Court related solely to Orders made by the Judge in relation to the prohibition of the identification of the Marines and in relation to making the video recording available to the media. We were not in any way concerned with any other part of the proceedings at the Court Martial or the sentence passed.
(b) The Order prohibiting identification made in 2012
On 15 October 2012, two days after the decision to charge the Marines, Judge Advocate Elsom made an interim Order prohibiting the identification of the five Marines, Marines A, B, C, D and E on the grounds that there was a real and immediate risk to their lives; there was no evidence to that effect. The Order was therefore made on an interim basis simply to protect the position. That Order was continued by the Judge under Rule 153 of the Armed Forces (Court Martial) Rules 2009 (the Court Martial Rules) (made under the provisions of the Courts Martial (Appeals) Act 1968, the Criminal Justice Act 2003 and the Armed Forces Act 2006) which we set out at paragraph 35 below and s.11 of the Contempt of Court Act 1981, pending a full hearing. The Judge ordered an assessment by the Joint Terrorist Analysis Centre (JTAC).
On 28 October 2012, a witness statement of Mr Anthony Tucker-Jones was served on behalf of the Marines. He was a former defence officer with 20 years' experience who described himself as an expert on regional conflicts and counter terrorism.
On 5 November 2012, there was a hearing before the Judge. Marines A-C sought the continuation of the Order prohibiting their identification until the end of the trial; this was opposed in written submissions by the media parties. The Judge heard evidence in private from Mr Tucker-Jones, though we were provided with a transcript; the media parties were not present. His expertise and evidence were therefore not tested in cross-examination. The Judge also received a document entitled " Royal Marines — Threat Assessment" from a Departmental Security Officer in the MoD based on an assessment from the JTAC. That assessed the threat as moderate – an attack was possible but not likely; the MoD had placed the Marines on a contingency threat list and taken measures to improve the security for them personally and at their homes. The prosecution took a neutral position, but told the Judge that the MoD did not assess the threat as higher than the information provided by the JTAC. It was common ground that the Judge was obliged to make the Order if he was satisfied that there was a real and immediate threat to their lives, as we explain at paragraph 89 below.
The Judge in his ruling first found that, based on the decision of the MoD to increase the security for the Marines and the evidence of Mr Tucker-Jones, the publication of the names of the Marines would increase the risks to the lives of the Marines, their families and friends. He erred on the side of caution in accepting the assessment of Mr Tucker-Jones. He said at paragraph 15:
"Having considered the expert evidence from Mr Tucker-Jones and the submissions from the parties, I am unable to conclude definitely that there is a real and immediate risk to the Defendant's lives today. However I am satisfied that there may be a real and immediate risk to the Defendants' lives based on the information that is currently in the public domain, and the risk will increase significantly when all of the prosecution evidence is disclosed as the trial unfolds. The risk comes from organised terrorist activity and "lone wolves" who are unpredictable. In this respect members of the Armed Forces are entitled to be treated differently from civilians within this country at this moment in history. While they must remain accountable for their actions, and part of that accountability is through open justice, they are also entitled to protection from terrorists who may not be concerned with due process, and who may attempt revenge attacks. In other words, any assessment of risk must err on the side of the safety of members of the Armed Forces. I am not prepared to take a chance with men's lives." (emphasis placed by the Judge)
He considered whether any other measures could be taken other than an Order prohibiting their identification, as Mr Tucker-Jones had said that any threat would continue whatever the outcome of the trial. Their names would provide a focus for terrorists. He added at paragraph 17:
"If the Defendants are acquitted at trial, then it is right that their identities are protected for the future. As members of the Armed Forces who are placed in harm's way, and who undertake risks which do not confront civilians, they are entitled to this additional protection. If they, or any one of them, are convicted then the issue of anonymity will be reassessed."
In paragraph 18 he concluded:
"I am satisfied that, within the context of this case (including the unpredictability of terrorist attacks and the ongoing operations in Afghanistan) there would be a real and immediate risk to the lives of the Defendants if they were to be identified by name."
He made an Order that the Marines be referred to only as Marines A, B, C, D and E and there be no publication of any matter that would enable them to be identified (such an order is to be distinguished from orders which may be made restricting the reporting of the names of defendants or others where those names are given in open court). The Order was to remain in force until after the Court Martial had delivered its findings; it would then be reviewed.
(c) The continuation of the Order prohibiting their...
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