Blackman, R. v

A simple-majority finding of guilt by a Court Martial under section 160(1) of the Armed Forces Act 2006 is compatible with Article 6. The differences between civilian and military justice are justified by the conditions of military life and do not constitute Article 14 discrimination.

For murder committed on operations in circumstances not contemplated by Parliament, Schedule 21 to the Criminal Justice Act 2003 provides useful sentencing guidance. A 15-year starting point may be reduced substantially where exceptional operational stress and combat stress disorder materially affected an otherwise exemplary serviceman. Deterrence must reflect the punishment and publicity already inherent in an open prosecution and life sentence.

The appellant, a Royal Marine patrol commander, was convicted by a Court Martial at Bulford of murdering a seriously wounded and disarmed Afghan insurgent. He was sentenced to imprisonment for life, with a minimum term of 10 years, reduction in rank and dismissal with disgrace.

He appealed against conviction on the basis that a simple-majority finding by a Court Martial was incompatible with Articles 6 and 14. He also appealed against the minimum term, relying principally on the effects of operational and combat stress, his service record, and alleged errors in the assessment of aggravating and mitigating features.

The central issues were whether the Court Martial voting system was discriminatory and whether the minimum term properly reflected the exceptional operational circumstances.

1. The appeal against conviction was dismissed. The court was bound by R v Twaite [2010] EWCA Crim 2973, which upheld section 160(1) of the Armed Forces Act 2006 as compatible with Article 6. The addition of an Article 14 argument made no difference. The distinction between civilian courts and Courts Martial was justified by the different conditions of military and civilian life. A simple-majority system was not inherently objectionable, particularly given the variety of jury decision rules in democratic legal systems.

2. The court observed that Parliament could alter the voting requirement, and that the disclosure of a majority verdict could potentially be addressed by rules. It also observed that, where civilian and service jurisdiction overlap in an overseas murder case, careful consideration should be given to the appropriate forum.

3. The appeal against sentence was allowed to a limited extent. Schedule 21 to the Criminal Justice Act 2003 was properly used as guidance for a murder committed in operational circumstances not specifically contemplated by the Schedule. The appropriate starting point was 15 years, the lowest adult starting point for murder.

4. The court upheld the seriousness of the deliberate conduct: stopping first aid, moving the wounded insurgent out of view, shooting him, and directing a dishonest cover-up. The insurgent's vulnerability added nothing material to those acts. The possibility of other insurgents nearby did not affect the finding that this disarmed and seriously wounded insurgent posed no threat.

5. Greater weight should, however, have been given to combat stress, the appellant's otherwise outstanding service, and the isolated conditions in which his mental welfare had not been adequately assessed. Additional deterrence was unnecessary because the public proceedings, life sentence and substantial minimum term already supplied it. The minimum term was reduced from 10 years to 8 years; release remained for the Parole Board and subject to licence conditions.

• Courts Martial Appeal Court: The court dismissed the appeal against conviction and allowed the appeal against sentence only to the extent of reducing the minimum term from 10 years to 8 years.
• Court Martial at Bulford: On 8 November 2013, the appellant was convicted of murder. On 6 December 2013, he was sentenced to life imprisonment with a 10-year minimum term, reduction in rank and dismissal with disgrace.