Thursday 16 March 2017

R v Alexander Wayne Blackman ~ Conviction reduced to manslaughter

In September 2011, Royal Marine Sergeant Blackman and his unit were operating in Helmand Province, Afghanistan.  They came across an insurgent who had been severely wounded by helicopter fire.  Sergeant Blackman killed the insurgent.

At a trial by Court Martial, Sergeant Blackman was convicted of murder, sentenced to life imprisonment with a minimum term to serve of 10 years.  He was also reduced to the ranks and dismissed with disgrace from the Armed Forces.  His defence at trial was that the insurgent was already dead. but this was rejected by the Court Martial.  No defence of diminished responsibility was raised and no psychiatric evidence was called at trial.  A psychiatric report was obtained for sentencing purposes.   On an appeal in 2014 to the Court Martial Appeals Court, the conviction for murder was upheld but the minimum term was reduced to 8 years.

The case was subsequently considered by the Criminal Cases Review Commission (CCRC) which referred it to the Court of Appeal on certain grounds.  Principally, there was the evidence of three expert psychiatrists to the effect that, at the time of the killing, the appellant was suffering from a recognised psychiatric condition known as "adjustment disorder."

On 15th March 2017, the Court Martial Appeals Court substituted a conviction for manslaughter on the basis of diminished responsibility.  This defence has been available in English law since the Homicide Act 1957 section 2 - as amended by the Coroners and Justice Act 2009 section 52(2).  Of particular relevance to the defence is the recent judgment of the Supreme Court in R v Golds [2016] UKSC 61, [2016] 1 WLR 5231

The judgment of the court is at R v Alexander Wayne Blackman [2017] EWCA Crim 190

Sentencing for manslaughter will be at a later date. 

Some discussion:

The appellant had served the colours for over 13 years and had an excellent record including three tours of duty in Iraq as well as Afghanistan.  He is described as an exemplary soldier. During 2011, just weeks before the events in question, the appellant attended the scattering of his father's ashes.

The appellant did not have children of his own and regarded himself as responsible for the members of his troop, particularly those with children and he undertook more patrols and risks to himself so that his troop could all get home safely.  Approximately a month before the killing on 15 September 2011 two grenades were thrown at the appellant by insurgents whilst he was talking to Afghan civilians outside the camp. The grenades fell into a nearby drainage ditch which funnelled the blast upwards, saving his life.

There is considerable focus in the judgment on a report prepared by the Armed Forces and referred to as the "Telemeter Report."  The government has (perhaps reluctantly) issued a summary of that report and it is not considered further here except to note that the report was critical of some aspects of the command structure but, given that the process used to prepare the report was open to criticism, we are told that statements containing specific criticisms of individuals within the chain of command cannot be relied upon.  The appeal court noted that "it was common ground amongst the psychiatrists that what was relevant to the mental state of the appellant and his responsibility for the killing was the perception that the appellant had of the support given to him."

The reader may wonder why psychiatric evidence was not adduced at the trial itself.  The judges' observations about this are at paragraph 79 :

"Unfortunately, it is the experience of members of this court that in cases before the ordinary courts, the routine practice of the prosecution in obtaining reports is no longer followed. This appears to be related to the very real delay that obtaining such a report incurs along with the increasing cost involved. In many cases, such a decision may be entirely justifiable, but it is particularly unfortunate in any case involving conduct which is entirely inconsistent with the prior character and conduct of the defendant. That is even more so in a case such as this where, in any event, there is a real responsibility placed upon the armed forces in respect of the mental health and welfare of their troops."

The reader may also wonder why Sergeant Blackman was not completely truthful when interviewed by the Military Police charged with investigating the case.   At para 75 the court stated - "Further, we attach little material significance to the lies in his interview by the military police, not least because we have taken into account his explanation for the lies and, in particular, his recognition at the time that for a number of reasons, not least related to his position in the marines, he would not have wanted to admit that he had behaved disreputably and contrary to proper standards."

Any argument that the appellant was poorly served by his lawyers at the court martial is ill-founded.  It is perhaps a pity that the Appeal Court has not made this crystal clear.  As Secret Barrister notes -

"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......"

The court did not criticise the court martial itself noting (at para 113) that - "We would, however, like to make it clear that, when reviewing the matters the subject of our judgement, we could see no basis for any criticism of the conduct of the court martial by the Judge Advocate General. He left the issues which had been raised by the prosecution and the defence during the hearing of the court martial to the Board in an entirely fair and proper manner."

The outcome is a clear demonstration that the United Kingdom has treated the killing of the wounded insurgent with utter seriousness.  The British public is rightly proud of the Armed Forces and their extraordinary commitment to high standards and discipline.  The judgment of the Appeal Court is recognition that our service personnel are human beings sometimes placed in extraordinarily dangerous and exposed situations with huge stress levels which, thankfully, most of us have not had to endure.  In his evidence at the appeal, Professor Greenberg said:
"There isn't any such thing as a Rambo-type, Arnold Schwarzenegger soldier who can face all sorts of stressors and appear to be invulnerable. That sort of person only exists in the cinema."


Court Martial - sentencing remarks or here

Court Martial Appeals Court - May 2014

Court Martial Appeals Court - December 2016 

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