Royal Marine murder appeal: what did the courts say?

17 March 2017

“Judges reduced [Alexander Blackman’s] conviction to manslaughter on the grounds of diminished responsibility, saying he had been subjected to exceptional pressures in the lead-up to the incident.”

Daily Mail, 16 March 2017

This is a fair summary of the appeal decision handed down on 15 March.

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Why was it murder to begin with?

Acting Colour Sergeant Blackman was recorded shooting dead an injured Afghan insurgent while on patrol in Helmand Province in 2011.

Without looking into the details, you might assume that’s what happens on a battlefield. But the man in question was badly wounded, disarmed and captured. Killing someone in that position isn’t a legal military act and, without the military situation making it legal, a soldier killing someone has committed a crime just like anybody else.

Sergeant Blackman was charged with murder. He was convicted at a court martial and sent to prison for a minimum of 10 years.

He appealed in 2014, and the sentence was reduced to eight years.

This week’s decision was an unusual second appeal, because of the intervention of the Criminal Cases Review Commission, which investigates possible miscarriages of justice.

Why did the appeal judges decide it was manslaughter all along?

There were various reasons for the appeal, but Sergeant Blackman and his legal team agreed with the Service Prosecuting Authority that if he were successful on the issue of “diminished responsibility”, he would drop the remaining appeal arguments .

There was new psychiatric evidence on his mental condition which wasn’t available at the original trial or appeal. That’s why the Criminal Cases Review Commission was able to send the case to the Court Martial Appeal Court (as the Court of Appeal is called when hearing military appeals).

Diminished responsibility is a technical legal term. A defendant who can prove that he or she was “suffering from an abnormality of mental functioning” can’t be convicted of what would otherwise be murder so long as other criteria are met. Instead, it’s manslaughter.

As the screenshot above suggests, the first step in showing diminished responsibility is establishing a recognised medical condition. Three psychiatrists gave evidence that he did have one: an adjustment disorder. That wasn’t in dispute by the time of the appeal.

Having a recognised medical condition isn’t enough on its own. The second step was establishing that the condition “substantially impaired” Sergeant Blackman’s ability to understand his conduct, form a rational judgment or exercise self-control. The psychiatrists thought that it did.

The judges decided that if such evidence had been available to court martial, “it could have affected their decision to convict” Sergeant Blackman for murder rather than manslaughter. So that conviction had to go.

There could have been a retrial. But the Court Martial Appeal Court has the power to reach a new verdict instead. The judges decided to use that power, which meant looking again at the evidence on diminished responsibility for themselves.

In their words, the job of the judges was to assess whether the evidence showed “that the appellant suffered from an abnormality of mental functioning arising from the adjustment disorder which substantially impaired his ability to form a rational judgement or to exercise self-control and provided an explanation for the killing of the insurgent”.

That’s a mouthful, but it’s just repeating the ingredients of a diminished responsibility defence from the screenshot above.

The Mail fairly summarises the evidence they went over as “exceptional pressures”, although the court used the term “exceptional stressors”. These had to do with the military situation on the ground and a perceived lack of support from superior officers.

It wasn’t just a matter of finding excuses, thoughthese pressures were only relevant insofar as they affected Sergeant Blackman’s “mental functioning”, “rational judgement” and “self-control”.

As the new verdict was one of manslaughter, not an acquittal, Sergeant Blackman remains in prison for now. The Court Martial Appeal Court is due to make a separate decision on the appropriate prison sentence for that crime shortly. If it’s shorter than the time Sergeant Blackman has already spent in jail, he’ll be released immediately.

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