Blackman, R. v

Sentencing for manslaughter by reason of diminished responsibility requires an evaluative assessment of the murder sentencing framework, harm, residual culpability, aggravation, mitigation and any properly available credit for a guilty plea. The court should use equivalent determinate terms when comparing a determinate sentence with a murder minimum term under Criminal Justice Act 2003, Schedule 21.

Death represents the highest level of harm even where the victim’s likely survival was short. Diminished responsibility may reduce culpability without removing substantial responsibility for a deliberate killing. A hypothetical earlier plea does not justify plea credit where the defendant gave no prior indication of a willingness to plead and maintained an inconsistent defence.

Following a reference from the Criminal Cases Review Commission, the court had quashed Blackman’s murder conviction on 15 March 2017 and substituted manslaughter by reason of diminished responsibility: [2017] EWCA Crim 190. The sentences imposed for murder consequently fell away.

This judgment concerned sentence for the substituted offence. The principal issues were the proper determinate custodial term and whether the appellant should be dismissed from HM Armed Forces, with or without disgrace. The court considered the earlier reduction of the murder minimum term, the appellant’s adjustment disorder and combat stress, the gravity of the deliberate killing, and the submission that a full reduction should be allowed for a hypothetical early guilty plea.

1. The court imposed a determinate sentence of seven years’ imprisonment for manslaughter by reason of diminished responsibility and ordered the appellant’s dismissal from the service. Dismissal was not to be with disgrace. Time on remand in service custody was to count towards sentence under section 246 of the Armed Forces Act 2006.

2. Following R v Wood [2009] EWCA Crim 651, the court had to have regard to the murder sentencing levels and aggravating and mitigating factors in Schedule 21 to the Criminal Justice Act 2003. A murder minimum term is actual time in custody, whereas a determinate sentence ordinarily results in release at the halfway point. The earlier eight-year murder minimum term was therefore equivalent to a 16-year determinate sentence; a direct comparison with the eight-year figure would have been misleading.

3. The harm was at the highest level because the offence caused death. The victim’s short likely survival did not reduce that harm. Although the appellant’s adjustment disorder substantially impaired rational judgment and self-control, he retained substantial responsibility for a deliberate killing. His retained culpability was medium rather than high.

4. The court treated as aggravating the victim’s vulnerability, the planned avoidance of witnesses and concealment, the intended killing, the collusive involvement of members of the appellant’s team, and the damage caused to the reputation and safety of HM Armed Forces. It gave substantial mitigating weight to the appellant’s outstanding service, bravery, combat stress, inadequate perceived leadership, and the anticipated threat to the command post.

5. No guilty-plea reduction was warranted. There had been no plea or indication of willingness to plead, and the trial defence had denied any intent to kill. The later acceptance of a substituted verdict was realistic, but did not establish that the appellant would earlier have advanced or admitted a psychiatric defence.

6. Under section 265 of the Armed Forces Act 2006, dismissal formed part of the court’s sentencing powers. In light of the serious manslaughter conviction, the substantial responsibility retained, the inevitable custodial sentence and reputational damage, continuation in service was not possible. The court therefore exercised the power itself rather than leaving the matter to the military authorities.

• Court of Appeal (Criminal Division): On a reference from the Criminal Cases Review Commission, the court quashed the murder conviction and substituted manslaughter by reason of diminished responsibility: [2017] EWCA Crim 190. In this sentencing judgment, it imposed seven years’ imprisonment and dismissal from service: [2017] EWCA Crim 325.
• Court of Appeal (Criminal Division): On an earlier appeal, the court reduced the minimum term for murder from 10 to eight years: [2014] EWCA Crim 1029; [2015] 1 WLR 1900.
• Court Martial at Bulford: The appellant was convicted of murder and sentenced. The original sentences fell away when the conviction was quashed.