Courts Martial Appeal Court grants minor relief in Blackman case

The Lord Chief Justice,
Lord Thomas of Cwmgiedd

The Courts Martial Appeal Court in London has reduced the minimum term that must be served under the adjudged life sentence in the murder case against Royal Marine sergeant Alexander Blackman. According to this BBC account, he will now be eligible for parole after eight years, rather than ten. "Reducing the sentence, judges Lord Chief Justice Lord Thomas, Sir Brian Leveson and Lady Justice Hallett said the court martial had not taken the former marine's combat stress sufficiently into account." The BBC adds:

Lord Thomas said the court martial ought to have accorded greater weight as a mitigating factor to the combat stress from which Blackman was suffering. 

He said the stress had arisen from the nature of the insurgency in Afghanistan, the way his tour of duty was arranged and other matters personally affecting him.

The full opinion can be found here, on the bailii.org website.

The court rejected a contention that the members should have been required to be unanimous in deciding guilt. Here are the court's concluding observations on this part of the case:

[26] First, it will always be open to Parliament to change the requirements of s.160 [of the Armed Forces Act, 2006], as the Judge Advocate General himself has suggested, to bring the position into line with the position in the courts, either for all offences or more serious offences. That is a matter for Parliament.

[27] Second, the issue as to whether the court should announce the majority, if a conviction is by majority, is a matter that could probably be dealt with under the Court Martial Rules made under s.13 of the Act. That is a matter for the Secretary of State for Defence.

[28] Third, it appears on the information provided to us that no question was raised at the outset of these proceedings as to whether it was appropriate for the appellant to be tried by Court Martial or by a court. As we have observed at paragraph 6, a British citizen can be tried in a court in England and Wales for a murder, wherever committed. The question as to whether proceedings should be before a court or a Court Martial is governed by a protocol between the Director of Service Prosecutions, the Director of Public Prosecutions and the Ministry of Defence made in September and October 2011. The principles set out in the protocol were approved by the Attorney General for England and Wales and by the Ministry of Justice.

[29] The protocol makes it clear that where there are overlapping jurisdictions between the Court Martial system of justice and the system of justice in the courts, it is for the Director of Pubic Prosecutions to decide whether a person should be subject to military justice or be subject to trial in the courts. Paragraphs 2.1 to 2.4 set out the considerations that are to be applied.

[30] In the case of prosecutions for murder committed overseas by members of HM Armed Forces, careful consideration should be given to the question of which is the more appropriate system, bearing in mind the requirement in the court for a specified majority and any relevance in such a case of the experience of the members of the board that comprises the Court Martial as compared with the court system which gives the responsibility for sentence to the judge alone.

Quaere: Should Parliament require member unanimity? Should the Ministry require disclosure of members' votes by rule? Should the choice of civilian vs. military forum be left to interagency agreement or should Parliament resolve it by legislation? Does the civilian Courts Martial Appeal Court's decision concerning the sentence in Blackman undercut the court's own suggestion that "the experience of the members of the board" may be a relevant factor in forum choice?