Andrew Morris, Higher Courts Advocate, Irvine Thanvi Natas Solicitors, analyses the case of R v Blackman [Marine A]  EWCA Crim 190.
The case of Sergeant Alexander Blackman, an acting colour sergeant in the Royal Marines attracted widespread international media attention after his conviction for murder was overturned by the Courts Martial Appeal Court on 15 March 2017. It is believed to be the first case in which the psychiatric condition ‘adjustment disorder’ has been associated with the killing of an enemy.
On 15 September 2011, Sergeant Blackman was on foot patrol along with eight other marines, on his way back to command post Omar, an outpost of camp bastion in Afghanistan. Following a helicopter attack on two insurgents, he and his team were asked to carry out a battle damage assessment. They found an insurgent who had been severely wounded lying on the ground. The insurgent was dragged into a position where he could not be seen by the helicopter overhead. He was not given first aid, and there was a discussion as to what to do with him. Several of the group believed that they could not save him or that he was going to die. The appellant waited for the helicopter to leave the area and then shot the insurgent in the chest, killing him. It was clear at the time that the appellant was aware that he had broken the Geneva Convention, and told his group not to tell anyone what had happened. The incident was caught on video.
Transcripts of the footage are at parts shocking, and they describe in detail the discussions among the group leading up to the killing by Sergeant Blackman. The insurgent was helpless and very severely wounded. The appellant’s defence at trial had been that he believed the insurgent was already dead. This had been rejected. However, it was submitted on appeal that if the Court found that the partial defence of diminished responsibility was established, the Court could only do so on the basis that the appellant intended to kill the insurgent.
The Court, on a referral from the Criminal Cases Review Commission in 2016, concentrated on whether new psychiatric evidence now raised the partial defence to murder of diminished responsibility under section 14 of the Court Martial Appeal Act 1968. They considered whether a verdict of manslaughter could be substituted in the place of murder. The Court heard that the appellant suffered from an adjustment disorder at the time of the killing. They also heard evidence about the conditions in which he and his troops were operating in Afghanistan and the ‘exceptional stressors’ he was subjected to. These included sleep deprivation, lack of contact and support with supervising officers, regular ambushes by insurgents and constant threats from IED explosives. The terrain was unforgiving and the appellant regularly patrolled in 50 per cent heat with 100lbs of equipment. Severe casualties had been inflicted by insurgents and the dead bodies of soldiers had been treated callously and provocatively, including being hung from trees.
On balance, the Court concluded that the appellant’s adjustment disorder was of such a degree that it had a substantial impairment on his ability to form a rational judgment or to exercise self-control. This psychiatric evidence had not been in place at the original trial and if it had been, it is likely that diminished responsibility would have been left to the Court Martial board and their decision would have been affected. The Crown did not dispute the medical evidence, but simply stated that it was not enough to establish the defence.
The appellant’s conviction for murder was quashed and replaced with a conviction for manslaughter. His appeal against sentence was upheld and reduced to a determinative sentence of 7 years.