Yesterday the Court Martial Appeal Court (which, as the name suggests, hears appeals from Courts Martial) refused an application for bail by Alexander Blackman (more popularly known as ‘Marine A’) pending his appeal against his conviction for Murder. There was, predictably, an almighty uproar by people and equally predictably, the uproar appears to be coming from people with scant knowledge of the facts (or a complete lack of interest in the facts). Before looking at the decision of the Court Martial Appeal court, it might be worthwhile recapping, briefly, how we have arrived at this situation.
‘Marine A’ served with the Royal Marines and was deployed to Afghanistan. On 15 September 2011 insurgents attacked a compound that was occupied by the Royal Marines. A helicopter was called in to assist with the fire fight that had ensued. One of the insurgents was located in open ground and the helicopter opened fire on that particular insurgent. A unit was tasked to undertake an assessment of the damage from the battle and that unit was under the command of ‘Marine A’.
Each of the three armed forces in the UK has their own police force – The Royal Military Police (Army), the Royal Navy Police (the Navy) and the Royal Air Force Police (the RAF). About 12 months later the “Military Police” (phrase used in the Court Martial Appeal Court’s judgment) were undertaking an investigation into unrelated matters but found video recordings of the incident in Afghanistan on 15 September 2011. It is understood that in the video footage ‘Marine A’ is heard to admit that he had broken the Geneva Convention when killing an insurgent. That discovery by the RMP resulted in ‘Marine A’ together with others being charged with Murder. The matter was tried before a Court Martial and in November 2013 ‘Marine A’ was convicted of Murder.
The Court Martial is a military court which has its current basis in the Armed Forces Act 2006. It hears cases against service personnel form all three of the services. Proceedings are presided over by a Judge (who is called a “Judge Advocate”) and there is a Board consisting of between three and seven officers and warrant officers (who take the place of the jury); the size of the Board depends upon the seriousness of the charge(s). The Court Martial may try any offence against service law (section 50(1), Armed Forces Act 2006), which includes all criminal offences under the law of England and Wales (see Section 42 of the Armed Forces Act 2006). The Court Martial operates much like the Crown Court (although there are notable differences) and matters of law are determined by the Judge Advocate while matters of fact (including innocence and guilt) are a matter for the Board. Matters are prosecuted before a Court Martial by the Service Prosecuting Authority. The SPA an independent tri-service body which is staffed by qualified lawyers who are drawn on secondment from the Legal Branches of the Army, Navy and RAF (all of whom are commissioned officers in their respective service). The SPA is independent from the chain of command and operates along similar lines to the Crown Prosecution Service. The SPA is under the superintendence of the Attorney General of England and Wales to mark its complete independence from the Chain of Command.
Following upon ‘Marine A’s’ conviction for Murder he unsuccessfully appealed his conviction to the Court Martial Appeal Court. Thereafter an application was made to the Criminal Cases Review Commission which has subsequently made a reference back to the Court Martial Appeal Court. For completeness, the judges who sit in the Court Martial Appeal Court are those set out in Section 2 of the Courts-Martial (Appeals) Act 1968 and include the judges of the Court of Appeal of England and Wales, such of the Lords Commissioners of Justiciary as the Lord Justice General may from time to time nominate for the purpose, and such of the judges of Her Majesty’s Supreme Court of Judicature of Northern Ireland as the Lord Chief Justice of Northern Ireland may from time to time nominate for the purpose.
The Judgment of the Court Martial Appeal Court discloses very limited details about the nature of the appeal before it; however, it would appear that Blackman’s lawyers are arguing that new psychiatric evidence produced renders the conviction for murder unsafe. In terms of a disposal the Appellant is seeking, it is that his conviction for murder be quashed and either substituted with a conviction for Manslaughter or a fresh trial ordered. In essence, the Appellant is not arguing that he is wholly innocent – he is arguing that he was criminally responsible for the death of the insurgent but that his responsibility was diminished and therefore he is guilty of Manslaughter rather than Murder. The Prosecution do not accept this and maintain that the conviction for Murder is the correct conviction.
In short, what we had is a person who served in the armed forces, who was investigated by members of the armed forces, prosecuted by members of the armed forces (acting independently from the Chain of Command) and thereafter convicted of murder by members of the armed forces seeking Bail pending an appeal in which he hopes his conviction for Murder will be substituted with a conviction for manslaughter. When assessing the case of Marine A it is my view that we must do so with that short summary in mind.
In terms of Bail, the prosecution was neutral on the matter. As we know, the Court Martial Appeal Court refused bail. The test for bail, rightly and sensibly, for a person who stands convicted of a crime is entirely different to that of a person who is yet to stand trial. The presumption of innocence does not apply following conviction. The test that the Court Martial Appeal Court applied is set out in Paragraph 18 of its judgment. It is a very high test, as would be expected. It is exactly the same test that would be applied to someone convicted in the Crown Court of Murder who was seeking bail from the Court of Appeal pending an appeal.
The Court Martial Appeal court determined that Marine A’s case did not meet the high test for bail to be granted and so Bail was refused. I’m not an English lawyer and it is English criminal law that is applied by the Armed Forces Act 2006; however, I would have thought that those acting for the Appellant would have advised him on his prospects of success in his application for Bail and I suspect that neither he nor his legal representatives were surprised when Bail was refused.
The Court Martial Appeal Court appears though to be moving at breakneck speed in hearing the appeal. The Criminal Cases Review Commission made the reference earlier this month and the Court is currently looking to have a hearing fixed for January or February 2017. In an attempt to speed matters up the Court has severed the Appellant’s grounds of appeal and will deal initially with the primary ground of appeal (that being the one arising out of the new psychiatric evidence). If the Appellant is successful on that ground the remaining grounds are irrelevant, if he is unsuccessful the Court Martial Appeal Court will hold a further hearing on those grounds of appeal.
While it may have been disappointing for the family, friends and supporters of ‘Marine A’ that his application for Bail was refused; it is important that the decision is seen in its context. Furthermore, even if Marine A is successful in his appeal there is no guarantee that he will be immediately released from prison. If his conviction for Murder is quashed and replaced with one for Manslaughter the sentence will also need to be substituted; it may well be that Marine A will need to serve further time in custody.
prout de jure 