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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Blackman, R. v [2014] EWCA Crim 1029 (22 May 2014) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2014/1029.html Cite as: [2014] EWCA Crim 1029, [2015] 1 All ER 148, [2015] WLR 1900, [2015] 1 WLR 1900, [2014] 2 Cr App R 18 |
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ON APPEAL FROM A COURT MARTIAL AT BULFORD
Strand, London, WC2A 2LL |
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B e f o r e :
PRESIDENT OF THE QUEEN'S BENCH DIVISION
and
VICE-PRESIDENT OF COURT OF APPEAL, CRIMINAL DIVISION
____________________
Regina |
Respondent |
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- and - |
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Alexander Wayne Blackman |
Appellant |
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-and- |
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Secretary of State for Defence |
Intervener |
____________________
Philip Havers QC for the Intervener
Hearing date: 10 April 2014
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Crown Copyright ©
Lord Thomas of Cwmgiedd, CJ: Background
The events of 15 September 2011
The discovery in September 2012 of a recording of the events
The Court Martial
THE APPEAL AGAINST CONVICTION
The features of the Court Martial System
i) Under s.155 a Court Martial comprises a Judge Advocate and between at least three but no more than seven other persons known as lay members. The Act proscribes the qualification for those other members who are officers or warrant officers. The Rules make detailed provision as to the number that is required in certain proceedings.
ii) Under s.160,
"(1) Subject to the following provisions of this section, the finding of the Court Martial on a charge, and any sentence passed by it, must be determined by a majority of the votes of the members of the court.
(2) The Judge Advocate is not entitled to vote on the finding.
(3) In the case of inequality of votes on the finding the court must acquit the defendant.
(4) In the case of inequality of votes on sentence, the Judge Advocate has a casting vote."
The contentions of the parties
i) This was a right that could be traced back to at least 1168; unanimity was required from at least 1367 (see Devlin: Trial by Jury, 1956, page 48). For a period during World War II, the Administration of Justice (Emergency Provisions) Act 1939 authorised trials with only seven jurors for criminal cases other than murder or treason, for which twelve jurors were still required. Verdicts had to be unanimous.
ii) A change was made only in 1967 where by s.13 of the Criminal Justice Act 1967 majority verdicts were allowed. Where there was a finding of guilt, the vote had to be stated in open court. By the Practice Directions, CPD Trial 39K and CPD Trial 39 Q 1 - Q9, strict requirements are set out as to the procedure to be followed in relation to verdicts by juries.
iii) Although in the Magistrates' Courts conviction can be by simple majority of the lay magistrates, the offences are less serious and, unlike the lay members of a Court Martial, Magistrates receive training in law.
iv) A simple majority conviction is said to be inherently unsafe because it demonstrates sufficient doubt to defeat the criminal standard of proof. Reliance was placed on a passage in Trial by Jury by Sir Patrick Devlin at page 56:
"The criminal verdict is premised upon the absence of reasonable doubt. If there were a dissenting minority of a third or a quarter that would of itself suggest to the popular mind the existence of a reasonable doubt and might impair public confidence in the criminal verdict."
v) Reliance was also placed upon a passage in the third edition of Rant on the Court Martial and Service Law (edited by the present Judge Advocate General) at paragraph 5.126:
"An undisclosed simple majority decision in a serious case where the defendant is at risk of a significant custodial sentence might be perceived as being inherently unsafe, since the outcome rests on a knife edge. … This provision is a legacy from the past, which represents a significant weakness in the Service justice system and a striking contrast with the much more secure arrangements in the Crown Court. When there is legislative opportunity the law should be changed to require either a unanimous verdict, as, for example, is the case in the Court Martial system in other Commonwealth countries such as New Zealand or at least a significant and disclosed majority."
vi) Furthermore Rule 109(3) of the Armed Forces (Court Martial) Rules 2009 requires the lay members who are serving officers to give their votes on the finding in ascending order of rank and seniority. This is apparently to preclude the influence of seniority within the discussion.
vii) It therefore followed that the position of a citizen subject to the Court Martial system was afforded much less protection than a citizen before the courts and, although it did not violate Article 6 of the Convention on Human Rights per se, it violated Article 14 of the Convention.
The court should therefore declare s.160(1) of the Armed Forces Act 2006 incompatible with the Convention rights under s.4 of the Human Rights Act 1968.
Our conclusion
Observations
THE APPEAL AGAINST SENTENCE
The circumstances of the murder of the insurgent
"[The insurgent] had been seriously wounded having been engaged lawfully by an Apache helicopter and when [the appellant] found him he was no longer a threat. Having removed his AK47, magazines and a grenade [the appellant] caused him to be moved to a place where [the appellant] wanted to be out of sight of [the] operational headquarters at Shahzad so that, to quote what [the appellant] said, "PGSS can't see what we are doing to him". He was handled in a robust manner by those under [the appellant's]command clearly causing him additional pain and [the appellant] did nothing to stop them from treating him in that way. When out of view of the PGSS [the appellant] failed to ensure he was given appropriate medical treatment quickly and then ordered those giving him some first aid to stop.
When [the appellant was] sure the Apache helicopter was out of sight, [the appellant] calmly discharged a 9 millimetre round into his chest from close range. [The appellant's] suggestion that [he] thought the insurgent was dead when [he] discharged the firearms lacks any credibility and was clearly made up after [he] had been charged with murder in an effort to concoct a defence. It was rejected by the Board.
Although the insurgent may have died from his wounds sustained in the engagement by the Apache [the appellant] gave him no chance of survival. [The appellant] intended to kill him and that shot certainly hastened his death.
[The appellant] then told [his] patrol they were not to say anything about what had just happened and [the appellant] acknowledged what [he] had done by saying [he] had just broken the Geneva Convention. The tone of calmness of [his] voice as [he] commented after [he] had shot him were matter of fact and in that respect they were chilling."
The career and character of the appellant
The medical evidence and the effect of stress
The aggravating factors found by the Court Martial
Mitigating factors
The sentence imposed by the Court Martial
The contentions of the appellant
Comparable cases
i) In February 2005 three non-commissioned officers pleaded guilty to or were convicted of offences against Iraqis who had looted a food distribution camp in May 2003 after the Coalition occupation of Iraq. The offences included assaults contrary to s.39 of the Offences Against the Person Act 1861 (the 1861 Act) (including tying an Iraqi to a fork lift truck) and the taking of trophy photographs in relation to the assaults, some of which included sexual indignities. Each was sentenced to imprisonment; the most senior was sentenced to 18 months imprisonment and dismissed; the one who had tied the looter to a fork lift truck to amuse himself as a calculated act of cruelty was sentenced to two years imprisonment and dismissed. There was an earlier related case to which it is not necessary to refer.
ii) In April 2007 a non-commissioned officer was sentenced after an earlier plea of guilty to the offence of inhuman treatment in relation to the death of Baha Mousa in Iraq in May 2003. He was acquitted of manslaughter. The other defendants were acquitted of the charges against them. He was sentenced to 12 months imprisonment.
iii) In March 2009 an officer and non-commissioned officer were sentenced for a deliberate assault causing actual bodily harm contrary to s.47 of the 1861 Act on an Afghan suspected of planting an improvised explosive device. The court took what it recognised was the exceptional course of not sentencing them to imprisonment, but dismissing them; it did so in part because the officer had admitted his guilt and expressed remorse and in part because the financial effect of dismissal was severe to both.
i) In R v Brown (Elvin Kyle) the defendant had been convicted on a count of manslaughter arising out of operations of the Canadian armed forces in Somalia in 1993. A 16 year old Somali male had been captured while attempting to infiltrate one of the Canadian compounds. He was placed in the custody of the section in which the defendant served. Over the course of the ensuing two and a half to three hours the prisoner was severely and brutally beaten. By midnight he was dead. The case against the appellant was that he had been present when his immediate superior, a corporal, had beaten the detained Somali and he had at an early stage punched the deceased and kicked him twice in the leg. The corporal had attempted suicide and was unfit to stand trial. The defendant was convicted and sentenced to 5 years imprisonment. The defendant's appeal against conviction was rejected by the Court Martial Appeal Court of Canada on 6 January 1995. The Crown also sought leave to appeal against sentence on the basis that the sentence of five years imposed by the Court Martial was too low, given the objective gravity of the offence of manslaughter and the offence of torture. The Court Martial Appeal Court concluded that although at first blush it considered that the sentence of five years was "inordinately low", it would dismiss the Crown's appeal.
"Under military law it is the Court Martial itself composed of lay officers which pronounces the sentence. The sentence, like the finding of guilt which preceded it, is known to the world only by its result. The members of the court are not asked for and may not give any reasons to support the sentence which they impose."
As the Court Martial had given no reasons, the Court Martial Appeal Court concluded that it was possible to see that the sentence could be supported on the basis that the Court Martial had found him guilty only of hitting the prisoner and kicking him at an early stage of the ordeal and had rejected any theory of guilt based on the accused being an accomplice of his superior. As that was a view open to the Court Martial and it may have sentenced on that basis, the Crown's appeal could not succeed.
ii) In R v Captain Semrau (2010), the defendant, when assigned to mentor the commander of an Afghan army patrol in 2008, had come upon a wounded and unarmed insurgent and had shot him. He was acquitted by the panel of second degree murder and attempted murder at a Court Martial, but found guilty of behaving in a disgraceful manner. The findings of fact were:
"The situation on the ground at the time seemed relatively calm although the potential for danger is omnipresent in such combat operations. After a brief examination of the insurgent, the [Afghan National Army] commander moved to the position of the dead insurgent in the next cornfield. You also went to the location of the second insurgent and then you returned to the location of the first insurgent so that your fire team partner could photograph the insurgent for intelligence purposes. Once the photographs had been taken, you shot the insurgent.
It was evident that the insurgent was unarmed … The nature and extent of the insurgent's wounds were described by numerous witnesses during the trial. Four witnesses testified he was alive when they observed him…..
You explained to members of your team you felt that you had to shoot the insurgent because of his condition. You told [the Afghan Commander] that you wanted to help the Afghan insurgent. Your actions might have been motivated by an honest belief that you were doing the right thing; nonetheless you committed a serious breach of discipline."
The judge concluded that the panel must have concluded the insurgent was alive when he was shot by the officer and that the officer deliberately shot him, but that there was no premeditation. The judge referred to two US Court Martials (to which we refer below) and found that in relation to Captain Maynulet, the circumstances bore a certain degree of similarity and the decision was of some use. The judge concluded that the defendant had been convicted only on the charge of disgraceful conduct in shooting the insurgent; he had been acquitted of murder and had therefore to be sentenced on the basis of the much less serious offence. The judge also took into account the fact that the defendant had acted out of character. The defendant was sentenced to dismissal from the army with disgrace.
i) US v Capt Maynulet (appeal against conviction to the US Court of Appeal for the Armed Forces, transcript 3 March 2010). In Iraq, the officer shot a driver of a suspected "High Value Target" who had been severely wounded. There was medical evidence he would not survive. The officer, on his account, shot him to "put him out of his misery". He was convicted in 2005 of assault with intent to commit voluntary manslaughter and sentenced to be dismissed from the US armed forces.
ii) US v Staff Sgt Horne. He shot a severely wounded 16 year old Iraqi. In 2004 he pleaded guilty to unpremeditated murder on the basis that he had shot the Iraqi to "put him out of his misery". He was sentenced to 3 years imprisonment and a dishonourable discharge. His sentence was reduced to one year by a senior officer.
Our conclusion
The aggravating features
The mitigating factors:
Conclusion