Excellent analysis of the composition of the Court by Joshua Rosenberg QC(Hon). What is surprising is the core of the Court are the three who sat on Blackman's first appeal. “MARINE A” — THE BLACKMAN APPEAL
The Court Martial Appeal Court will hear an appeal against conviction by Alexander Blackman — “Marine A” — this week. The appeal opens on Tuesday and three days have been set aside for the hearing. Blackman has been refused bail and will appear by video link.
Five judges will hear the appeal: Lord Thomas of Cwmgiedd (Lord Chief Justice), Sir Brian Leveson (President of the Queen’s Bench Division), Lady Justice Hallett (Vice-President of the Court of Appeal Criminal Division), Mr Justice Openshaw and Mr Justice Sweeney.
This is what lawyers call a “strong” court — meaning that it includes a larger number of judges than usual (five instead of three) as well as judges of the highest seniority. The three most senior judges in England and Wales who specialise in criminal appeals are sitting with two judges who currently try the most demanding criminal cases.
It must be some time since such a strong court has heard any criminal appeal. It is certainly the strongest court to have heard a military appeal. A strong court is convened when there are particularly difficult questions to be decided and it is important that a decision should be seen as authoritative. We saw something similar when all eleven members of the Supreme Court sat to hear Gina Miller’s Brexit appeal.
Perhaps more significantly, five judges sometimes sit when it is thought possible that the court will overturn an earlier decision taken at the same level by a three-judge court. In May 2014, Blackman’s first appeal against conviction was dismissed — on different grounds from those expected to be raised this week — by a court consisting of Thomas, Leveson and Hallett: https://www.judiciary.gov.uk/judgments/r-v-sergeant-alexander-wayne-blackman-and-secretary-of-state-for-defence/
There will be a great deal of interest in the appeal hearing and in the court’s judgment, whenever it is delivered. If Blackman had been convicted by a jury in the Crown Court — as would have been possible given that a UK citizen may be tried for murder or manslaughter anywhere in the world — his appeal would have been to the Court of Appeal. Hearings in Court of Appeal may be televised and this one certainly would have been.
However, the law does not permit the broadcasting of proceedings in the Court Martial Appeals Court. That appears to be because the Lord Chancellor has not made the necessary order, with the concurrence of the Lord Chief Justice, under s32 Crime and Courts Act 2013. It is too late for her to do so now and I presume that none of the broadcasters thought of asking for an order to be made. That oversight should be rectified as soon as possible.
The best the court could do to make up for this is to provide a running transcript, at public expense, as the High Court did in the Gina Miller case. I hope it will do so.
Finally, a footnote for those who care about such things: the Courts-Martial Appeal Court was renamed the Court Martial Appeal Court in 2008 when s272 of the Armed Forces Act 2006 took effect.
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Excellent analysis of the composition of the Court by Joshua Rosenberg QC(Hon). What is surprising is the core of the Court are the three who sat on Blackman's first appeal.
ReplyDelete“MARINE A” — THE BLACKMAN APPEAL
The Court Martial Appeal Court will hear an appeal against conviction by Alexander Blackman — “Marine A” — this week. The appeal opens on Tuesday and three days have been set aside for the hearing. Blackman has been refused bail and will appear by video link.
Five judges will hear the appeal: Lord Thomas of Cwmgiedd (Lord Chief Justice), Sir Brian Leveson (President of the Queen’s Bench Division), Lady Justice Hallett (Vice-President of the Court of Appeal Criminal Division), Mr Justice Openshaw and Mr Justice Sweeney.
This is what lawyers call a “strong” court — meaning that it includes a larger number of judges than usual (five instead of three) as well as judges of the highest seniority. The three most senior judges in England and Wales who specialise in criminal appeals are sitting with two judges who currently try the most demanding criminal cases.
It must be some time since such a strong court has heard any criminal appeal. It is certainly the strongest court to have heard a military appeal. A strong court is convened when there are particularly difficult questions to be decided and it is important that a decision should be seen as authoritative. We saw something similar when all eleven members of the Supreme Court sat to hear Gina Miller’s Brexit appeal.
Perhaps more significantly, five judges sometimes sit when it is thought possible that the court will overturn an earlier decision taken at the same level by a three-judge court. In May 2014, Blackman’s first appeal against conviction was dismissed — on different grounds from those expected to be raised this week — by a court consisting of Thomas, Leveson and Hallett: https://www.judiciary.gov.uk/judgments/r-v-sergeant-alexander-wayne-blackman-and-secretary-of-state-for-defence/
There will be a great deal of interest in the appeal hearing and in the court’s judgment, whenever it is delivered. If Blackman had been convicted by a jury in the Crown Court — as would have been possible given that a UK citizen may be tried for murder or manslaughter anywhere in the world — his appeal would have been to the Court of Appeal. Hearings in Court of Appeal may be televised and this one certainly would have been.
However, the law does not permit the broadcasting of proceedings in the Court Martial Appeals Court. That appears to be because the Lord Chancellor has not made the necessary order, with the concurrence of the Lord Chief Justice, under s32 Crime and Courts Act 2013. It is too late for her to do so now and I presume that none of the broadcasters thought of asking for an order to be made. That oversight should be rectified as soon as possible.
The best the court could do to make up for this is to provide a running transcript, at public expense, as the High Court did in the Gina Miller case. I hope it will do so.
Finally, a footnote for those who care about such things: the Courts-Martial Appeal Court was renamed the Court Martial Appeal Court in 2008 when s272 of the Armed Forces Act 2006 took effect.
Joshua Rozenberg's report is just what I was hoping for. It's a model of legal commentary.
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