Chris Terrill posed the following question at the end of his documentary Marine A: Criminal Or Casualty of War?

What would you have done if you had been faced with an identical situation and under the same pressures as Sergeant Blackman?

Hand on heart. I cannot say, as some contributors to the programme admitted, that I wouldn’t have done the same thing myself. Perhaps and quite possibly, a red mist would have engulfed me too and my rational mind would have been overcome by “a moment of insanity”.

But that doesn’t mean that Blackman’s crime can be excused. The law of murder, as currently defined, can’t be tailored so that in the wholly exceptional circumstances of this case, it shouldn’t be applied. The only remedy available is in a reduction of the sentence, because of the mitigation and, in that respect, as the penalty for murder is fixed by law (life imprisonment), judges only have the power to reduce the minimum sentence actually to be served.

What is not always clear to the public is the way that decisions at courts martial are reached, and quite how the system equates to a civilian court.

As a former judge advocate (I retired at the beginning of 2010), I spent nigh on twenty years officiating at courts martial, and saw the jurisdiction change so that it now matches its civilian counterpart in almost every respect.

Nonetheless, it is a common misconception that a court martial, because it comes from a different system designed for the military, is somehow less fair than its civilian equivalent.

A court martial actually operates in the same way as any case held in the Crown Court. When a defendant pleads not guilty (as Blackman did), a board of officers (seven in Blackman’s case) are sworn in to decide the facts of the case in the same way as a civilian jury would be. The judge advocate (the Judge Advocate General himself in Blackman’s case) sits separately from the board and presides over the trial in precisely the same way as a civilian judge would when a jury are sworn in to deal with factual issues.

Where the system is different is in the sentencing process. If there is a conviction by the board, they leave their jury box and join the judge advocate on the bench to deliberate on the appropriate penalty.

Clearly, as the sentencing expert, the latter wields considerable influence over the appropriate tariff but any military considerations will be taken into account. Each member of the sentencing panel, including the judge advocate, has a vote on sentence.

The sentencing of soldiers generally can be a difficult process. On the one hand, they are subject to extraordinary pressures particularly in conflict situations, on the other they are highly trained to control their aggression as part of their induction into the military world.

The idea still held by some, that soldiers are more likely to be aggressive and violent because they are “trained” to kill is a fallacious one. That might have been a view at the time of the First World War, when recruits were ordered to scream at sandbags before running them through with bayonets, but is simply not the case today. Nowadays, soldiers are highly trained professionals often engaged in peace keeping operations.

In assessing any sentence, a judge must have regard to both the aggravating and mitigating features of a crime. As indicated above, in a military court because there are special circumstances pertaining to soldiers, he doesn’t decide sentence alone but with experienced military personnel – hence the Court Martial system.

Nonetheless, as an experienced lawyer the judge advocate must take responsibility for giving strong advice as to what the appropriate sentence should be. Military personnel may be good in being able to weigh up military considerations but have no experience of wider sentencing issues.

From my reading of the transcript of sentencing remarks, it was clear that the court found Blackman guilty on the compelling evidence before them, and implicitly rejected the account he put forward at trial in order to exonerate himself. In the documentary, there was some speculation as to what Blackman’s defence might have been, but that must never be used as a substitute for the proven facts. It’s also right to point out that Blackman was convicted by his peers, a right in law which goes all the way back to Magna Carta. The Judge Advocate General made this crucial point.

You have been judged here by a Board here made up of Service personnel who understand operational service because they too have experienced it. That is one of the strengths of the Court Martial system.

Both Blackman’s conviction and sentence are now before the Court Martial Appeal Court, who have reserved judgement and we await their decision. But for my part, Justice, although undeniably harsh in the context of this case, appears to have been properly done.

Robert Seymour

Robert Seymour is the author of two legal novels, written under the pen-name of Charles Courtley. Wig Begone tells the tale of Charles’ experiences as a young barrister and Wig Betrayed is the story of Charles’ later career as a judge advocate, presiding over courts martial in Germany. 

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