The Judge Advocate General, Jeffrey Blackett, and his military colleagues faced an extraordinarily difficult task in sentencing Sergeant Alexander Blackman, formerly known only as “Marine A”, for murder. A 10 year minimum term for an offence of murder, especially after a contested trial, is an unusually lenient sentence. On the other hand this was a very unusual case.
Some have questioned the necessity for Courts Martial at all, or argued that they should not try offences as serious as murder. This case illustrates precisely why we need to retain a separate system of military justice. In a case like his, the judgement of a civilian court would have been deeply unsatisfactory. Judge Advocate Blackett’s sentencing remarks should be required reading for anyone wishing to comment on the case.
Until quite recently most judges had served in the armed forces, and some had done so with huge distinction. Lord Justice Watkins is the best known example. As Lieutenant Tasker Watkins he won the Victoria Cross in August 1944 for leading a series of bayonet charges across cornfields to capture German machine-gun posts. He then rose to become a distinguished Lord Justice of Appeal and Deputy Lord Chief Justice. In 2001 he looked back on the battle in which he won his VC :
“You must believe me when I say it was just another day in the life of a soldier, I did what needed doing to help colleagues and friends, just as others looked out for me during the fighting that summer… I didn’t wake up the next day a better or braver person, just different. I’d seen more killing and death in 24 hours – indeed been part of that terrible process – than is right for anybody. From that point onwards I have tried to take a more caring view of my fellow human beings, and that, of course, always includes your opponent, whether it be in war, sport or just life generally.”
Watkins died in 2007 and there are few judges who now have any first-hand, knowledge of military matters at all, let alone experience of that sort. Judge Advocate Blackett in fact is rare amongst even Judge Advocates in that he served as an officer in the Royal Navy before taking up his full-time judicial post.
Likewise, the chances of a jury containing anyone who has military experience are slim. Most people probably prefer not to give much thought to what a volunteer army is doing on their behalf. As a result soldiers do not take kindly to criticism of their conduct from civilians, as Kipling knew:
Yes, makin’ mock o’ uniforms that guard you while you sleep
Is cheaper than them uniforms, an’ they’re starvation cheap;
An’ hustlin’ drunken soldiers when they’re goin’ large a bit
Is five times better business than paradin’ in full kit.
Then it’s Tommy this, an’ Tommy that, an’ “Tommy, ‘ow’s yer soul?
“But it’s “Thin red line of ‘eroes” when the drums begin to roll,
The drums begin to roll, my boys, the drums begin to roll,
O it’s “Thin red line of ‘eroes” when the drums begin to roll.
Sergeant Blackman has more in common with Tasker Watkins L.J. than most murderers. He too had seen more killing and death than is right for anybody. His now notorious crime – shooting a captured and injured Taliban fighter – was of a type that has been committed in all wars. But it has always been regarded as wrong by any civilised army, even in the heat of battle, and Blackman was well aware of that fact. Immediately after shooting his prisoner, he was recorded saying “I’ve just breached the Geneva Convention.”
Of course, the law allows only one sentence for murder: life imprisonment. But life imprisonment does not usually mean that the offender spends the rest of his life in prison. It means that he cannot be released (and even then only subject to recall) until the Parole Board decides that:
“… it is no longer necessary for the protection of the public that the prisoner should be
In this case the risk to the general public seems likely to be almost non-existent, or at least no greater than that posed by any other soldier mentally scarred by the experience of war. In any case the Court Martial did not need to concern itself with assessing such a risk. That could be left to the Parole Board.
Nevertheless the Court did have the onerous responsibility of setting a “minimum term of imprisonment;” that is, the length of time that Sergeant Blackman should actually spend in prison before being considered for release.
Uniquely, the approach to sentencing a murderer is dictated by statute, rather than by the common law or by formal sentencing guidelines. The Court must first decide on a “starting point.” It must “have regard” to Schedule 21 of the Criminal Justice Act 2003 which sets out the starting points for various typical types of murders. Thus, for example, the starting points for a double murder, each one involving substantial premeditation is a whole life order; for a murder involving the use of a firearm it is 30 years, and so on.
It is, frankly, very difficult to see how the case can be fitted into any of these statutory categories. There is no suggested starting point for shooting prisoners. References to the use of a firearm are to the use of an illegally held firearm.
Having established a starting point,the court then had to consider whether there were any aggravating or mitigating features that should increase the sentence above or below the starting point. Specific examples are given in the Schedule, for example:
“the fact that the victim was particularly vulnerable because of age or disability,” (aggravation);
“the fact that the offender was provoked (for example by prolonged stress),” (mitigation).
There are plenty of others, but none that really applied in this case. Although Sergeant Blackman’s victim was “particularly vulnerable” at the time he was killed this was simply not the sort of case envisaged by the draftsmen of the 2003 Act.
And in fact it is bordering on the absurd to apply sentencing principles developed for civilian murderers to a case of this sort, which has absolutely nothing in common with, say, a gangland shooting or a husband murdering his unloved wife for her annuities.
For a case which does not fit into any of the specific categories the appropriate starting point is 15 years, and it was into this “none of the above” category that the Court felt that the murder fell.
Sentencing procedure at a Court Martial differs significantly from that at a Crown Court, and for good reason. In a Crown Court the jury plays no part in sentencing. At the Court Martial the sentence will be decided by the Judge Advocate sitting with the same board of 7 officers and NCOs who found Blackman guilty at the trial. This is just as well, because it is hard to see how any purely civilian court, or for that matter a court headed by a Judge Advocate with a naval background, could begin to understand the extraordinary pressures that the Royal Marines were under at the time.
That is not to say that the Court is necessarily more lenient than a civilian equivalent. In some cases the requirements of service discipline dictate that the same conduct is treated far more seriously by military courts than by civilian ones. Drug offences are the classic example. Soldiers found to have taken drugs are virtually always thrown out of the army, and a soldier supplying or even simply possessing drugs is likely to be treated far more severely by a Court Martial than by a civilian court.
Military courts also take notice of rank. Blackman was a sergeant and in general the higher the rank, the longer the sentence is likely to be. The fact that he was in charge of the patrol, and asked more junior soldiers to cover up for him was regarded as an aggravating feature, That said, the current Guidance on Sentencing in the Court Martial states:
Differences in the level of sentence between civilian and Service courts are minimal for the more serious criminal conduct offences. Homicide, rape or armed robbery are sentenced as in a Crown Court; only exceptionally would the sentence vary.
The other, and perhaps (in the view of the Court) more serious aggravating features were:
1. The vulnerability of the victim; and
2. The fact that the murder provides propaganda to terrorists.
Nevertheless, the Court felt that these features were far outweighed by the mitigation: in particular the “provocation” (perhaps an odd word to use, but explained by the fact that it appears in the Schedule), the “stress of operations” (there was psychiatric evidence that Sgt Blackman may have been suffering from Combat Stress Disorder at the time) and other matters personal to Sgt Blackman such as his previously exemplary character and the recent death of his father.
It will be interesting to see whether the Attorney General thinks the sentence is so lenient that it should be referred to the Courts Martial Appeal Court (effectively the civilian Court of Appeal in all but name). That would of course be asking a wholly civilian court to over-rule the judgement of those with military experience, and in my view that would be unwise.
Despite what many will see as a relatively lenient sentence there is still considerable sympathy for Blackman in military circles, but nothing to what there would have been had he been convicted and sentenced by a civilian court. The army would be in uproar that civilians with no conception of military matters were passing judgement over soldiers. I have no idea whether the members of the Board trying him have experienced the sort of vile hand to hand combat that was the lot of the Royal Marines in Helmand. But they will have a better idea of what it involves than a civilian judge and jury.
We aren't no thin red 'eroes, nor we aren't no blackguards too, But single men in barricks, most remarkable like you; An' if sometimes our conduck isn't all your fancy paints, Why, single men in barricks don't grow into plaster saints; While it's Tommy this, an' Tommy that, an' "Tommy, fall be'ind", But it's "Please to walk in front, sir", when there's trouble in the wind, There's trouble in the wind, my boys, there's trouble in the wind, O it's "Please to walk in front, sir", when there's trouble in the wind.
When Mr Blackman comes to reflect on his fate in his prison cell this evening he may feel aggrieved that he has been punished for doing something that in earlier wars – and possibly even in the current one – other soldiers got away with. He may well feel aggrieved at the length of his sentence. What he will not be able to say is that he has been sentenced by a Court that was incapable of understanding him.