Sergeant Blackman’s case shows how much we need courts martial

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

confined.”

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);

or

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.

 

Liked it? Take a second to support Matthew on Patreon!

Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

16 thoughts on “Sergeant Blackman’s case shows how much we need courts martial”

  1. Hmm. I agree that courts-martial are indispensable, but you have given him leeway that is not deserved. He killed a defenceless person, in cold blood, in direct contravention of his training, orders, and rules of engagement. It was not a “moment of madness” or anything of the sort. He chose to do it. His fellow soldiers stood by and said nothing while he did it. Yes, anyone with any experience of the services knows that this sort of thing has happened. That is no excuse. It has to *not* happen. Anything else negates any point there ever was in our being there.

    1. I’m certainly not excusing him Calum. On the contrary I think a 10 year minimum sentence was lenient. My point is simply that it is right that it was military people who decided the sentence.

  2. One comment, which if raised perhaps would have changed the verdict. This dates back to Angolan war where South African troops tried to stem the Cuban offensive. SA research showed that after 18 months on battlefield all troops became ‘kill-easy’ and as result servicemen were rotated accordingly. The research showed that by that deadline it was impossible for the soldiers to adhere to code of conduct (e.g. Geneva Convention). I clearly do not know the required terminology but the gist is clear I hope. Could this be passed to Marine A’s appeal team?

  3. Dear Calum, what a load of silly high minded tosh you spout. it is so apparent we are only one and a half chromosomes different from the chimpanzee. I will put this as simple as I can for you. Sergeant Alexander Blackman had an outstanding service record, and his loyalty and allegiance are second to none. It was a known fact that he was suffering from P.T.S.D but this was ignored. So please, don’t drivel on about justice, just try and use those one and a half chromosomes to enjoy the safe world, thus far, that soldiers like Blackman put their lives on the line for.

  4. This case seems to have been revived by a recent parliamentary debate and revelations that Sgt Blackman’s CO at the time of the incident resigned his commission in light of a “failure of moral courage” by his superiors. Speaking as a solicitor and a former Royal Marine I doubt the independence of a tribunal selected from invariably career hungry or career cautions souls from media or political pressure. There’s a feeling in the former RM community that Sgt Blackman has been hung out to dry – he gets a “lenient” 10 year sentence whilst the CO ultimately responsible for leaving a combat stressed veteran over-worked and under supported in a tethered goat posting received a DSO. I’m quite disgusted.

    1. Dear Sir. Rigged to convict is my impression. Surely the default stance should lean to acquit in a conflict. I can think of multiple reasons. The jihadist having hit by a canon shell was dying. the battlefield was to dangerous to render aid, possibly the “chap” was wearing a suicide belt. Had a hand grenade etc. so many reasons to acquit.

      1. George, it is all a matter of tradition as you know. In the artillery if one wounds with the first round one tries to kill both the wounded and those attempting to render medical assistance with subsequent rounds. The only difference between you and I (never pulled the lanyard but helped aim) and Marine Blackman is the calibre of the weapon used: 9mm versus 155 in my case. Of course it is traditional in the artillery to attempt to finish of the wounded, not so in the marines.

  5. Apologies for any confusion, the CO in charge for most of Sgt Blackman’s deployment (Murchison erm… DSO) was different, apparently in so many ways, from the CO (Col Oliver Lee) who took over at the end. Murchison was in fact the CO at the time of the incident, posing for pictures with Cheryl Cole on the day in question. Col Lee resigned his commission apparently because he was excluded from the the Court Martial proceedings and was unable to provide his view on mitigation – leading to what I would describe as deeper culpability for the incident. The Parliamentary debate focused on this including other aspects of the case including overlapping jurisdictions and the unavailability of a manslaughter charge, for whatever reasons, for Sgt Blackman.

  6. This case seems to have come to the forefront again – there were proceedings in the Court of Appeal which reduced the sentence to 8 years (albeit for reasons which don’t seem to stretch beyond “we disagreed with the original sentence”) and now the CCRC has become involved (treating the case as a priority – presumably because they have run out of cases to consider where almost incontrovertible actus reus and mens rea are not recorded on a convenient 30 second video).

    I would be interested if you had any further thoughts.

    1. Strange that you think mens rea can be “recorded” on a helmet cam Mike. The CCRC has looked at more evidence than a 30 second video over the past 11 months and has come to the conclusion that the conviction is vulnerable. The fact that new evidence seems to have ’emerged’ in relation to an incident that happened five years ago and in relation to which all of the ‘players’ were known and available suggests to me that a Court Martial (and all that this entails in terms of the conduct of the investigation and possible bias) may not have been an appropriate forum.

      1. Sgt Blackmans new legal team have set out is the basis for the appeal:-

        EIGHT REASONS SGT BLACKMAN DESERVES AN APPEAL
        1. Pathology report by Dr Ashley Fegan-Earl supporting Sgt Blackman’s belief the insurgent was dead when he shot him.
        2. Psychiatric report by Professor Nick Greenberg concluding Blackman was suffering ‘abnormality of mental functioning’ and had diminished responsibility.
        3. New evidence from Colonel Oliver Lee, RSM Steph Moran and the Marines’ internal Telemeter Report supporting the case for a verdict of ‘loss of control manslaughter’, where he snapped and lost his self control.
        4. Evidence already heard at Sgt Blackman’s court martial should have resulted in ‘loss of control’ manslaughter option but this was ‘overlooked by all parties and notably the learned Judge Advocate General’.
        5. Original defence team was ‘incompetent’.
        6. Murder conviction unsafe because it relied on ‘improper cross-examination of Sgt Blackman on ‘inadmissible’ diary of another Marine.
        7. Evidence already heard should have resulted in option of ‘unlawful act of manslaughter’ verdict (he admitted firing at a dead body but denied murder.)
        8. Evidence already heard should have resulted in option of ‘gross negligence manslaughter’ verdict (he admitted negligence in desecrating a believed dead body, but denied murder.)
        See link below
        http://www.dailymail.co.uk/news/article-3356797/Shameful-plot-brass-Marine-Sgt-Blackman-prison.html

        The CCRC statement is very revelling:-

        “The Commission’s review in this case has been extensive and detailed. As well as looking at a 100-page report outlining Mr Blackman’s submissions, with supporting documents and authorities running to several hundred pages, made to us by Mr Blackman’s legal team, the Commission has also considered whether other matters not raised in the application could impact upon the safety of his conviction and has interviewed relevant parties.”

        “For the purposes of its review in this case the Commission has used its statutory powers to obtain material from: The Royal Military Police, the Service Prosecuting Authority; the Military Court Service, the Royal Marines, the Navy and the Ministry of Defence; The Commission also has commissioned independent expert medical evidence and obtained and considered defence files, medical files, transcripts of various legal proceedings and other material.”

        What they are if fact saying is, the commission thinks something fishy’s gone on (as many of us on this board do) it has therefore used its statutory powers to investigate matters not directly made in Sgt Blackmans’s legal teams submission, very interesting.

        Read more: http://civviestreet.proboards.com/thread/56147/refers-blackmans-courts-martial-appeal?page=1#ixzz4SjKzcepT

  7. There is currently a huge disconnect between what British Infantry Troops have always and are currently being trained to do (that being to close with and kill the enemy) and what the establishment (Politicians and Senior Civil Servants/Officers and the courts) appear to accept/tolerate, once it becomes public. (Come on guy’s our granddads were dropping incendiary bombs on women and children in Cologne and Dresden, why the short memories?)
    British Infantry soldiers are trained to kill or be killed (to protect yourself and those whom it is your duty to protect and the Crown) under threat of facing serious legal consequence if you fail in this. You are trained to be extremely aggressive and to ‘fight through’ the enemy territory/positions and leave no threat as you do so (it is especially important to do this where the enemy, as is the case with ISIS/Taliban/AL-Qaeda suicide bombing, mass murdering, child raping/torturing psychopaths).
    Killing an enemy on the field of battle even one who is surrendering or an injured one is not a crime, it’s done all the time in the name of politics (as war is just an extension of), that may be an inconvenient truth, but it is a truth. Three examples
    Firstly, In the Falklands there were several battalion scale assaults e.g. Two Sisters Ridge, Goose Green, Mount Harriet, Tumbledown etc. On several of these the enemy in the first lines of defence were attempting to surrender as the British troop fought up and through the positions. However as it was impractical to take these enemy prisoners they were killed and the assault continued. The Geneva convention does not state that you have to take prisoners.
    Secondly, Iraq/Afghan, Apache and Drone pilots acquire a target, on engaging them there are still injured enemy scrabbling or crawling to escape, so they go round again and fire another cannon burst or launch another missile to kill them.
    Here’s another one, the assault charges go off and a hole appears in the mud compound wall your first in and through the dust you see four or five enemy with RPG’s and AK47’s in various stages of shock and injury, there are two doors leading to other rooms, you open fire and shooting the nearest two. Then your primary weapon jams so you bayonet the next one. Whilst your colleague (2nd through the hole) is dealing with the other two, you withdraw the bayonet. Now more troops are entering and there is a need to secure these rooms before immediately fighting through the adjoining rooms and on into the compound proper. Having now cleared your weapon of its malfunction you realise that one of the enemy you shot and the one you bayoneted are still alive, so following your training you shoot then both several times with the intention of killing them (as per your orders and training (to close with the enemy and kill them).
    At what point do you call a lawyer for an opinion of what the politicians and MOD mandarins may do about this if they find out, and you claim to have done this in their name? Do you get a medal as many have or go to jail?
    War and close quarter battle is kill or be killed it is dirty, you have to overcome huge fears and doubt and trust that your training, instincts and aggression and that of you trusted colleagues will carry the day.
    This is the reality.
    There is so much wrong with the way we were taken into the Iraq and Afghan wars, how the British armed forces were undertrained, underequipped and overstretched to breaking point. There is so much wrong with how Sgt Blackman was investigated, prosecuted, tried and defended. I trust that in Sgt Blackman now receiving justice, the whole sorry story of what has gone on will be exposed and individuals held to account.
    From a former serving Royal Marine.

  8. A little late to the party, but this is in the news at the moment and I’m wondering whether you’ll be blogging on Blackman again. I recall his wife being interviewed before Christmas 2016 when there was discussion of whether Blackman could be released on bail pending his appeal hearing. During the interview I saw, she was asked how Blackman was coping in prison, and she said ‘he’s doing great, he’s really tough’. And in the past few days she stated that they are hoping to overturn the dishonourable discharge as he wants to go back in the Marines. All in all, I feel these statements suggest that Blackman is not as traumatized by combat as he would like us to think.

    1. Will, it’s difficult to see what point you’re trying to make here. The original blog queried whether the courts martial system was appropriate for a trial of this nature. A well informed and reasoned blog. At the time I thought not because of possible agendas and conflicts of interest relating to who was ultimately at fault. As it turns out, the appeal tribunal, in my view, was similarly swayed (remember Truss failing to support the independence of the judiciary over the Brexit hearings?) but got to the end result of sanctioning Sgt Blackman’s release after an ‘effective’ sentence of seven years.

      Had the civilian courts tried the matter in the first place I think the outcome would have been different. The honourable lord justices wouldn’t then have had to come up with the fudge that I think they have.

      What you personally think of Sgt Blackman and his motives, ability or welfare are irrelevant.

Leave a Reply

Your email address will not be published. Required fields are marked *