Criminal or casualty?

Marine A is a salutary lesson on the pressures of modern warfare and those acting for service personnel, say Shaun Esprit and Jo Morris

The case of Acting Colour Sargeant Alexander Blackman, commonly known as ‘Marine A’, is a controversial one. The actions of our servicemen are and must be regulated: marines are public servants entrusted to combat the enemies of the UK and those who do so without restraint bring shame upon the nation. High standards are, therefore, quite rightly expected of our soldiers; resilience, self-control and integrity are imbued in our forces through rigorous training and selection and appear to be reasonable qualities to expect. However, the very nature of military life exposes soldiers to unique stressors which may lead to serious mental health issues for service personnel.

Modern warfare and ‘courageous restraint’

Armed conflict is now scrutinised more than ever before in history. This is partly due to advances in technology, such as head cameras and other recording devices, but there also remains an increasing ‘legalisation’ of the battlefield. In principle, this creates no difficulty. Servicemen acting within the law will be unaffected and those who are not have no place in the British military. Yet increasingly our servicemen find themselves in conflict with insurgents prepared to use all tools at their disposal or with nations which are not signatories to the conventions that regulate armed conflict. This creates situations where our servicemen are required to show restraint towards people who themselves show none. In fact, the current policy of ‘courageous restraint’ towards insurgents is one that has been criticised by senior members of the Army; back in 2010, Lt Gen Sir Nick Parker raised concerns that it was placing servicemen at risk.

On the face of it, the case of Marine A was a simple one. It involved the killing of an insurgent who was already disabled and therefore no longer a threat. It was said to amount to a cold-blooded execution. At the time of the original trial in 2013, no psychiatric evidence was adduced and the psychiatric evidence subsequently produced for the sentencing hearing did not consider the adjustment disorder from which it was discovered Alexander Blackman was suffering. By the time of the appeal, it did and his conviction was reduced from murder to manslaughter.

Identifying psychiatric damage in service personnel

The case holds an important lesson for those who act for servicemen; the issue of psychiatric injury must always be investigated to the fullest extent possible. Although psychiatric evidence was considered in 2013, it did not address the issue of adjustment disorder. It was the evidence at the appeal hearing of all three instructed psychiatrists – Professor Dr Neil Greenberg, Dr Philip Joseph and Dr Orr – that Alexander Blackman was suffering from an ‘adjustment disorder of moderate severity’ which had substantially impaired his ability to form a rational judgment and exercise self-control, that persuaded the Court of Appeal (Court Martial Appeal Court) that diminished responsibility applied.

All servicemen have stressors; they are away from home, separated from family, work long hours often in hostile territory and those involved in aggressive combat are at constant risk. Yet psychiatric damage can be harder to identify because such servicemen are often more stoical than the civilian population. There also remains within the military a stigma attached to mental health issues, so they are less likely to complain. Furthermore, although adjustment disorder is a recognised medical condition, symptoms may be masked and not apparent even to the sufferer. A person with such a disorder may still be able to plan and act with apparent rationality. The fact that such clients may present well should not lead to a presumption that they do not suffer from the severest of disorders. It is of note that Blackman, in a pre-trial conference with his legal team including his initial leading counsel, specifically discussed whether psychiatric evidence needed to be obtained for his trial. Leading counsel advised that psychiatric assessment would only inform the court martial board of the background ‘rather than the evidence that [he] behaved in an out of character manner’.

In 2014, his initial sentence of life imprisonment with a minimum term of 10 years was reduced on appeal to one of eight years, having regard to the evidence of Dr Orr that Blackman may have been suffering from a combat stress disorder which had gone undetected. The psychiatrist had made it clear in his initial report for sentence, though, that combat stress was no defence to criminal conduct but was an extenuating factor relevant to sentence. No consideration has been given to the possibility of adjustment disorder.

Identifying additional pressures

Certainly, Blackman did have additional pressures which, the Court of Appeal held, contributed to him developing the adjustment disorder. He had not received the full pre-deployment training because he had taken time out as a result of his father’s death. Trauma risk management training had not been available to him, despite the fact that the scheme should have been operating in Afghanistan. He had also recently lost the support of his junior officer who had been killed in action. The Padre did not visit Control Point (CP) Omar because it was considered too dangerous. In addition, the ‘multiple’ (or group) of the Royal Marines at CP Omar was undermanned by nearly a third; they were required to patrol between five to ten hours a day over rough ground in heat that was over 50 degrees centigrade. (They should not have done morning and evening patrols but were sometimes required to because of manpower shortages.) The evidence of the psychiatrist was that these factors alone might have led to diminished decision-making.

Furthermore, it was difficult to detect the insurgents within the local population and ambushes by them were a constant fear. The insurgents had inflicted severe casualties and treated dead bodies callously hanging limbs from trees. Approximately a month before the incident, two grenades were thrown at the appellant by insurgents and he narrowly avoided death. There was also a perception of a lack of support from the officer commanding the company with whom Blackman served. These matters must have had the effect of intensifying the feelings of isolation at CP Omar and potentially impacted upon his state of mind at the time that he acted.

Indeed, in March 2017, the Court of Appeal concluded that, given his prior exemplary conduct, it was the combination of the stressors connected with his active service, other matters relating to his personal circumstances, namely the death of his father prior to his deployment to Afghanistan and his adjustment disorder that substantially impaired his ability to form a rational judgment or to exercise self-control or provide an explanation for the killing of the insurgent.

Overturning the conviction

The replacement of his conviction for murder with one of manslaughter by reason of diminished responsibility and the consequent reduction in sentence meant an almost immediate release. Ultimately a better end may have been achieved for Blackman but his case is a salutary lesson for those of us who act in future cases of this nature.

According to the accepted evidence of Prof Greenberg, about 20-25% of combat troops deployed to Iraq and Afghanistan at some point suffered from a mental health difficulty and in 2012 and 2013 the most common form of mental health diagnosis, about one third of those diagnosed, was adjustment disorder.

Prof Greenberg also gave evidence, readily accepted by the court, that although all elite troops, such as Royal Marines, are trained to withstand stress and to be resilient, they too, like everyone, have their breaking point.

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Shaun Esprit

Shaun Esprit, barrister, Church Court Chambers

Jo Morris

Jo Morris heads up the military courts martial team at Church Court Chambers