Blackman, R. v

Background

On 15 September 2011 a badly wounded insurgent was killed in Helmand Province, Afghanistan, by the appellant, Alexander Blackman, then an Acting Colour Sergeant in the Royal Marines. He was in command of a multiple (or group) of the Royal Marines serving as part of the British Armed Forces stationed at Command Post (CP) Omar.

In September 2012, unofficial video footage taken by one of the multiple was found during the course of the investigation of an unrelated matter. That led to the recovery of a total of six clips which set out in clear detail what had happened to the insurgent. Thereafter a decision was made to charge the appellant and other members of his multiple with murder; his defence was that the insurgent was already dead when he shot him. Although the civilian courts had jurisdiction in respect of a murder alleged to have been committed by a British citizen overseas, a decision was made that instead of being arraigned before the ordinary courts of justice, he should be tried by a court martial.

The trial before the court martial commenced on 23 October 2013 before the president, a lieutenant colonel in the Royal Marines, the Judge Advocate General (as the judge advocate) and six other members comprising two other marine officers, three Royal Naval officers and a Royal Naval warrant officer. On 8 November 2013 the court martial found the appellant guilty of murder but acquitted the two other marines against whom proceedings had been pressed to trial. No psychiatric report had been obtained before the trial and no psychiatric evidence was called at the trial.

For the purposes of sentence, the defence obtained a psychiatric report from Dr Orr who examined the appellant for 2 hours on 22 November 2013. In his report dated 27 November 2013, Dr Orr concluded that the appellant may have been suffering from a combat stress disorder which had gone undetected; Dr Orr made clear that combat stress was no defence to criminal misconduct, but could be considered as an extenuating factor in relation to punishment. The appellant was subsequently sentenced to life imprisonment with a minimum term of 10 years, less time on remand.

An appeal against conviction was made to this court in 2014 on the grounds then advanced which related to the status of the court martial system and the compatibility of its procedures with the European Convention on Human Rights. The court dismissed the appeal against conviction. It allowed the appeal against sentence, substantially influenced by the psychiatric evidence of Dr Orr. Having regard to all the circumstances, including the effect upon him of the nature of the conflict in Afghanistan, the nature of the command he exercised and the extreme nature of the stress, the minimum term was reduced to one of eight years: R v Blackman [2015] 1 WLR 1900, [2014] EWCA Crim 1029.

Subsequently the Criminal Cases Review Commission (CCRC) was asked to consider, on the basis of voluminous further information (including a Ministry of Defence report known as the Telemeter Report), a reference of the conviction and sentence to this court. On 6 December 2016 the Criminal Cases Review Commission issued a press release announcing that the Commission would refer the case to this court; on 15 December 2016 the Commission sent its report to this court.

There were three grounds for the reference on conviction:

The appellant sought to add further grounds on which the CCRC had declined to make a reference:

At two hearings on 16 and 21 December 2016 for directions and to hear an application for bail, the court decided to order expedition and to hear first the ground of the reference and the appeal relating to diminished responsibility, allowing the appellant, if he was unsuccessful on that ground, to pursue the other grounds which would take much longer to prepare for the appeal. It did so on the following basis made expressly clear by the conclusion of the hearings in December 2016:

The hearing of the appeal was fixed for February 2017 on the basis set out. As leading counsel originally instructed on behalf of the prosecution at the court martial and on the appeal was unavailable, new leading counsel was instructed. Because of a perceived lack of clarity in the appellant’s prehearing submission on the issues set out in paragraphs 9 9(ii) and 9(iii), the issue was raised at the commencement of the hearing of the appeal. Having had the advantage of legal advice, express confirmation was given by the appellant that, if the court was satisfied that the partial defence of diminished responsibility was established, it could (and should) proceed to substitute a verdict to that effect, recognising that to do so could only be on the basis that the appellant intended to kill the insurgent: the other grounds of appeal (both referred and which the appellant had sought to add) would be abandoned. The prosecution, by leading counsel, agreed with that course. Having considered all the material, we consider that to have been an entirely realistic and sensible course to adopt.

The principal evidence at the hearing of the appeal comprised the video clips of the killing mostly recovered from the camera of the marine who took them, the evidence before the court martial, the psychiatric evidence and fresh evidence relating to the conditions under which the appellant served and the appellant’s service and medical history.

The evidence in relation to the killing of the insurgent

The deployment of the appellant and the command structure

In September 2011, the appellant was 37 years old having been a regular soldier for over 13 years, ultimately serving with J Company, which was one of three rifle companies in 42 Commando Group of the Royal Marines. He had served in Iraq in 2003 and again in 2004 and 2006.

He was deployed to Afghanistan in 2007 for 6 months. In March 2011, he was deployed a second time as part of what was known as Operation Herrick 14 where he served (save for a break in the UK between 15 and 31 July) until 12 October 2011.

The main British base was at Camp Bastion, near the provincial capital of Helmand Province, Lashkar Gah. 42 Commando Group was responsible for an Area of Operations known as ‘Nadi Ali North’; it was located at Forward Operating Base Shazad, in South-West Helmand Province; it was under the operational command of Lt Col Murchison from April to October. 45 Commando Group was responsible for the area of operations known as ‘Nadi Ali South’ under the command of Lt Col Lee. In early September 2011, the two areas of operation were merged under the command of 45 Commando Group; Lt Col Lee assumed ultimate command of 42 Commando Group and, thus, J company. The officer in command of J Company was Major McCully until May 2011 when he was severely injured; it then became Major Fisher.

The outlying bases included CP Talaanda, CP Omar and Temporary CP Toki. The appellant was the commander of CP Omar.

Radio communications for J Company were based at Shazad. Different posts were able to communicate with each other and with headquarters using a 385 Bowman radio network, although over shorter ranges members of J Company used ‘Personal Role Radio’ (both of which were available to the appellant at the material time). J Company also had the use of a Persistent Ground Surveillance System (PGSS) balloon which consisted of a camera supplying a live feed of images into the Operations Room at Shazad which was relayed into the Operations Room at Camp Bastion. The camera could be directed from Shazad and used to zoom into particular areas of interest.

The facts of the killing as they appeared on 15 September 2011

On 15 September 2011 insurgents attacked CP Talaanda using small arms fire. The operations room at Shazad observed through the PGSS two persons believed to be armed insurgents in the region of CP Talaanda. An Apache helicopter from Camp Bastion, with the call-sign ‘UGLY-51’, was called in. One of the insurgents was located in an open field. The helicopter opened fire and fired a total of 139 rounds of 130mm ammunition at that insurgent. Those watching the operation, including the pilot and those at Shazad, thought that he could not have survived.

Nevertheless, a foot patrol of around eight marines, led by the appellant, which had been crashed out that afternoon (following a routine patrol in the morning) to carry out an unconnected search, and which was on its way back to CP Omar, was ordered to undertake what was called a battle damage assessment, that is to say to see what the effect of the helicopter's attack had been and to report what they had found. The helicopter was ordered to stay in the vicinity to provide top cover and to look for other insurgent activity on the ground.

The patrol located the insurgent who was lying in the middle of the field. He was badly wounded but still alive. The appellant and another marine (who thereafter guarded the insurgent with his pistol) approached the insurgent and recovered his AK 47, two magazines and a hand grenade. The rest of the patrol remained at the side of the field until that was safely completed.

The video footage

As we have mentioned, video footage of the killing was found a year later. The appellant did not know, at the time, that the events were being videoed. Six clips of that video formed the principal evidence against him. His case was that he believed that the insurgent was already dead. The most important were clips 4 and 5.

Clip 4 showed:

The evidence at the court martial of two of the members of the multiple was that clip 5 began one or two minutes after clip 4. It starts with the appellant speaking on the radio explaining that the insurgent has a sucking chest wound. The sound of the helicopter can still be heard in the background.

The conclusion of the court martial based on that evidence

The court martial set out in its reasons for its decision on sentence a number of findings against the appellant as to the deliberate nature of the killing:

“[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 nine 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.”

In making those findings in relation to the appellant’s conviction, the court martial relied on the video clips and the other evidence before it. That is not surprising for whatever might now be said about the appellant’s mental health and his responsibility for what he did, his conduct and that of the marines reveals that the insurgent was believed to be alive, after which the appellant shot him at close quarters. In dismissing the appeal against conviction this court observed at paragraph 33 of its judgment:

“There is sufficient support from the video (which we have seen) and the transcript of the video that preclude us in any way from going behind those findings.”

The most experienced of the psychiatrists who gave evidence before us, Dr Joseph, confirmed that such a conclusion could properly be reached in the absence of psychiatric evidence:

“I think to decide it was a cold-blooded killing, you would attach most of the weight to the video evidence, and you would say then that how he describes his state of mind – well, there doesn't seem to be any evidence of that on the video. It is all chat and banter, and we are going to take that at face value, and that means he is not under any stress, it's just a tour, they've come across this man, they're not worried about any other insurgent being there, they don't seem to be particularly concerned about their welfare. So, the majority of the attention would go on the video, and the prosecution would say, "Well, look, you just have to watch the video", and everything else is just constructed post-first conviction. You just look at that video and the video speaks for itself.”

However, as we have made clear, the court martial had no psychiatric evidence at the time it convicted the appellant. Although it had Dr Orr’s report at the time of sentence, this report appears to have had no material influence on the conclusions.

As Dr Joseph explained:

“I have looked at that video a number of times, and I don't accept that that video accurately and truly reflects his mental state at the time – or I think it would be dangerous to assume that.”

It is important to underline that this view does not undermine the conclusion we have expressed as to the appropriate inferences to be drawn from the video but, rather, goes to the impact of the appellant’s mental health on his rationality and self-control. We therefore turn to examine the full psychiatric evidence before us on the mental state of the appellant at the time of the killing of the insurgent to determine whether the conclusion reached by the court martial, as principally derived from the video clips, did in fact show his actual mental state at that time.

The psychiatric evidence as to mental state at the time of the killing

The psychiatrists

The psychiatric evidence was from:

Each prepared a medical report in connection with the reference by the CCRC; all three produced a joint statement shortly before the trial answering questions that had been put on behalf of the prosecution. Professor Greenberg and Dr Joseph gave evidence before us in the course of which they were crossexamined and answered questions from the court. It had been intended that Dr Orr would give evidence, but he was unwell at the time of the hearing; he provided a further report.

Although some comments were made in the pre-hearing submissions made by the prosecution as to the way in which the psychiatric evidence had been funded, no criticism was in fact made by the prosecution of the integrity, reputation or standing of the psychiatrists.

Adjustment disorder and its symptoms

The evidence of the psychiatrists was that the appellant was suffering from an abnormality of mental functioning at the time of the killing. It arose from an adjustment disorder of moderate severity. An adjustment disorder is a recognised medical condition, which is defined in the International Classification of Diseases, 10^th edition (ICD-10), F43.2 as:

“A.

Experience of an identifiable psycho-social stressor, not of an unusual or catastrophic type, within one month of the onset of symptoms.

B.

Symptoms or behavioural disturbance of types found in any of the affective disorders (except for delusions and hallucinations), any disorder in F4 (neurotic, stress related and somatoform disorders) and conduct disorders, so long as the criteria of an individual disorder are not fulfilled. Symptoms may be variable in both form and severity.”

The symptoms include depressed mood, anxiety, worry, a feeling of an inability to cope, plan ahead or continue in the present situation, with some degree of disability in performance of the daily routine. The symptoms vary considerably; some suffer very mild symptoms; in a few cases the symptoms can be very severe resulting in suicide or a heinous act. In most cases the disorder resolves within 6 months of the stressing circumstances having dissipated.

The symptoms of an adjustment disorder could be masked and not apparent. Often an adjustment disorder was not apparent to the person suffering from it.

The absence of a report prior to trial and conviction

The psychiatrists stated that they were surprised that no psychiatric report was requested prior to the conviction. Nonetheless, it was routine for them to reach a conclusion relying on historical information and a mental state examination. In the case of the appellant this was explained by his personality which was such that he would not link his poor sleep and irritability to a psychological condition; Dr Joseph also concluded that the appellant would not want to rely on a psychiatric defence because of the stigma that was perceived to attach to it. This is consistent with the disclosed note of a conference that the appellant’s then leading counsel had with him, dated 10 June 2013, which records that counsel observed that psychiatric assessment would only inform a board of the background “rather than be evidence that you behaved in an out of character manner” with which proposition the appellant agreed, saying it would be “a created scenario”.

The principles relating to the assessment of substantial impairment of responsibility

The legal test.

The governing legal principle for the partial defence of diminished responsibility is set out in s.2 of the Homicide Act 1957 as amended by s.52(2) of the Coroners and Justice Act 2009:

“(1)

A person (‘D’) who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which— (a) arose from a recognised medical condition, (b) substantially impaired D's ability to do one or more of the things mentioned in subsection (1A), and (c) provides an explanation for D's acts and omissions in doing or being a party to the killing

(1A) Those things are— (a) to understand the nature of D's conduct; (b) to form a rational judgment; (c) to exercise self control.

(1B) For the purposes of subsection (1)(c), an abnormality of mental functioning provides an explanation for D's conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct.”

In R v Golds [2016] UKSC 61, [2016] 1 WLR 5231 the Supreme Court, through the judgment of Lord Hughes with which all agreed, held that the meaning of substantially was to be understood not in the sense of “present rather than illusory or fanciful, thus having some substance” but “important or weighty”, as in “a substantial meal” or “a substantial salary” or “significant and appreciable”.

The role of the psychiatrists in answering the critical question

Each of the psychiatrists was of the view that the adjustment disorder was in the circumstances of this case capable of substantially impairing the appellant’s ability to form a rational judgement or exercise self-control.

Each of the psychiatrists went further. They examined the evidence under what we can conveniently summarise as five headings:

Each expressed the view that, if asked, he would on the basis of the evidence which each had carefully and critically considered conclude that the abnormality of mental functioning substantially impaired the appellant’s ability to form a rational judgement and exercise self-control. Dr Joseph made clear that this was a conclusion he reached “on balance”. We must therefore consider how we should treat this specific evidence.

The status to be attached to the view of the psychiatrists

In R v Brennan [2014] EWCA Crim 2387, [2015] 1 WLR 2060 the sole defence was the partial defence of diminished responsibility. Only one consultant psychiatrist was called to give evidence. The prosecution had commissioned a psychiatric report but had chosen not to call its author because he agreed with the conclusions of the defence expert. The prosecution did not challenge the doctor called by the defence but tested her opinion by reference to the defendant’s planning and lies. The court concluded that diminished responsibility was the only possible outcome on the evidence. It made observations on the course a judge should follow in such circumstances.

In Golds, the Supreme Court observed at paragraph 49 in relation to Brennan:

“Certainly a jury is not bound by the expert. In some cases, preplanning, especially involving meticulous preparations, may indicate self-control which gives grounds for rejecting an opinion that self-control was substantially impaired. In others, there may be legitimate grounds for asking the jury to disagree about the level of impairment. In yet further cases, it may be perfectly proper to ask the jury to conclude that it was the drink or drugs which led to the killing, whilst the underlying mental condition was in the background. That is not by any means an exhaustive catalogue of questions which a jury may properly be invited to decide. However, as the Court of Appeal rightly held, if the jury is to be invited to reject the expert opinion, some rational basis for doing so must at least be suggested, and none had been at trial nor was on appeal. It is not open to the Crown in this kind of situation simply to invite the jury to convict of murder without suggesting why the expert evidence ought not to be accepted.”

It is important to note the emphasis in the Golds judgment not only on the prosecution’s right (if not duty) to assess the medical evidence and to challenge it, where there is a rational basis for so doing, but also on the primacy of the jury in determining the issue. It is clear that a judge should exercise caution before accepting the defence of diminished responsibility and removing the case from the jury (see paragraph 50). The fact that the prosecution calls no evidence to contradict a psychiatrist called by the defence is not in itself sufficient justification for doing so. In the light of the judgment in Golds, we see no reason not to follow the broad approach of this court in R v Khan (Dawood) [2009] EWCA Crim 1569, [2010] 1 Cr App R 4, to which reference was made in Brennan, which we would express as follows: it will be a rare case where a judge will exercise the power to withdraw a charge of murder from the jury when the prosecution do not accept that the evidence gives rise to the defence of diminished responsibility.

The Supreme Court concluded in relation to Brennan at paragraph 51:

“Where, however, in a diminished responsibility trial the medical evidence supports the plea and is uncontradicted, the judge needs to ensure that the Crown explains the basis on which it is inviting the jury to reject that evidence. He needs to ensure that the basis advanced is one which the jury can properly adopt. If the facts of the case give rise to it, he needs to warn the jury that brutal killings may be the product of disordered minds and that planning, whilst it may be relevant to self-control, may well be consistent with disordered thinking. While he needs to make it clear to the jury that, if there is a proper basis for rejecting the expert evidence, the decision is theirs—that trial is by jury and not by expert—it will also ordinarily be wise to advise the jury against attempting to make themselves amateur psychiatrists, and that if there is undisputed expert evidence the jury will probably wish to accept it, unless there is some identified reason for not doing so.”

This case is clearly not one of those rare cases where we should simply follow the views of the psychiatrists, even though they are agreed and are highly persuasive. The prosecution is plainly entitled to put its case that the partial defence did not arise. There were plainly issues in this case which would have been for the Board of the court martial (or the jury if there had been one). If this case was at a trial court, it would be for the jury or the Board to determine whether the abnormality of mind arising from the adjustment disorder in fact substantially impaired the appellant’s ability to form a rational judgement or to exercise self-control and whether it was a significant contributory factor in causing the appellant to kill the insurgent.

We therefore have to consider all the evidence to determine the safety of the conviction. Before turning to that evidence, we must first deal with an important issue that arose after the hearing.

The dispute over the evidence as to the conditions in Afghanistan

As a result of submissions made by the prosecution after the conclusion of the hearing in relation to the Telemeter Report to which we briefly referred at paragraph 6 above and which had been heavily relied upon in the appeal proceedings, it is necessary to explain in much greater detail than we had intended the background and use of the Telemeter Report. It is regrettable that we have had to do this, as we had thought at the hearing that we had found a means of resolving the two factual disputes then apparent.

The Telemeter Report

On 7 March 2014, Admiral Sir Philip Jones, the then Fleet Commander and Deputy Chief of Naval Staff, commissioned Brigadier Huntley, the then Head of the Centre of Defence Leadership, to carry out an internal review of events ancillary to the killing in respect of which the appellant was convicted. He was assisted by a senior occupational psychologist.

He submitted an interim report on 30 May 2014 in which he indicated the further lines of inquiry he wished to pursue so that he could understand why the appellant had committed murder, including issues relating to the chain of command. His final report (known as the Telemeter Report), was completed on 11 March 2015. The findings of the Report were accepted by the Fleet Commander, but we have not been provided with the document accepting the conclusion. We would observe that it is a very impressive and well-written report powerfully supporting the conclusions it reached.

On 16 September 2015, the Under Secretary of State for Defence, whilst reserving the security classification of the report, agreed to make a copy of the report available to the legal team acting for the appellant, to the CCRC and, if appropriate, to this court.

It was relied on heavily by the appellant in his submissions to the CCRC. An extract was agreed with the Ministry of Defence on 13 November 2015 which not only formed an important basis on which Professor Greenberg expressed his opinion, but also Dr Joseph and Dr Orr.

Although the report was provided to the court by the CCRC, the hearing of the appeal and in particular the evidence of Professor Greenberg and Dr Joseph proceeded on the basis of the extract agreed with the Ministry of Defence which they had carefully considered against all the other evidence.

Although there was no apparent dispute about the extract agreed by the Ministry of Defence, during the course of the hearing of the appeal it became

As we will explain at paragraph 101 we ascertained from the psychiatrists that what mattered was the appellant’s perception of the support from the command and not the actuality; we proceeded on the basis that it would not be necessary therefore for us to resolve the dispute on the actual position by hearing further evidence. As to the second matter, we saw a film about Toki; it was agreed that we should form our own judgement as to the extent to which it was relevant.

The complaint by Col Murchison

On 6 July 2015, the procedure adopted in respect of the Report was the subject of complaint by Col Murchison, as he had by then become. It is appropriate to add that, although he was notified in January 2015 that he would be criticised and given the opportunity to respond to the criticism, he apparently did not do so.

The nature of Col Murchison’s complaint was that the mechanism of an internal review should not have been used; a more formal process should have been used. Detailed criticism was made of the resourcing of the review, the failure to gather evidence properly and the lack of procedural protection afforded to Col Murchison and others affected by the review. It was said that the review strayed beyond its terms of reference and the questions raised in relation to those in the chain of command. The report was said to be derived from a flawed process and “in a number of important respects is incomplete, inaccurate and misleading”; it was said that the author of the report began the process with an already established narrative and tailored the investigation to fit it. Detailed specific criticism was made of the failure to seek further information and interview others.

The decision on Col Murchison’s complaint taken by General Sir Gordon Messenger and an official at the Ministry of Defence

The complaint was considered by General Sir Gordon Messenger, Vice Chief of the Defence Staff, and the Director General of Finance at the Ministry, under the provisions of s.334-339 of the Armed Forces Act 2006.

The decision on the complaint was signed on 7 December 2016, the day after the CCRC announced it was making the reference, as we have set out at paragraph 6 above. A copy of the decision was provided to the court. The complaint was stated to have been upheld in respect of its main elements for reasons set out at Annex B.

The decision recorded that Col Murchison had suffered a degree of stress and reputational damage and that it was inappropriate to have criticised him. Although the initial terms of reference were appropriate, the focus on the operational judgements of individuals demanded a different methodology. It should not have continued in the format it did.

“The appropriate safeguards required for those liable to criticism were not adequately in place. Potentially affected persons ought to have been given the full right of reply, as they would have been given had this phase of the review been conducted with the protections offered by a Service Review, for example.”

The decision added:

“We have written a statement which is to be attached to the [Internal Review] at Annex C. This states that the [Internal Review] went beyond the remit of the original [Terms of Reference] in a manner that was inappropriate and therefore cannot be relied upon. The position will be clear to all future readers of the report.”

On 12 December 2016, the appellant’s legal team was asked in accordance with Annex C to attach a covering statement to the report which was done. It was in these terms:

“The Internal Review which led to this report went beyond the remit of its original Terms of Reference: an Internal Review intended to look at culture and ethos.

It was not sufficiently robust to allow conclusions to be drawn as to the appropriateness of individual operational decisions in the chain of command. Specifically personnel criticised in the report were not able to identify the source of the criticism such that they could respond effectively to it, and have their response considered, when judgments about them were made in the drafting of the report.

Therefore, statements containing specific criticisms of individuals within the chain of command cannot be relied upon as the investigative process did not have sufficient veracity for such judgments to be relied upon. The overall recommendations made are unaffected by this and may safely be relied upon.

The report should be read with this statement in mind.”

The position taken by the prosecution after the conclusion of the hearing.

At the hearing we treated this statement and the terms of the decision itself as expressing a reservation as to the specific criticism of the actual actions by the command in Afghanistan, particularly Col Murchison. As we have noted, we considered we could resolve the issue by proceeding on the basis we set out at paragraph 101 below.

However, in the submissions made after the hearing the prosecution contended (at paragraph 5) that “the criticism which had since come to light of the Telemeter Report is not limited [to] the allegations concerning the chain of command, but rather its defective consideration of what happened on the ground and the operational circumstances in which the killing occurred”. There then followed a detailed submission as to the unreliability of the extracts agreed with the Ministry of Defence in 2015.

In the light of this approach, to which the appellant strongly objected, we will first consider the effect of this further submission on our decision as to the safety of the conviction. If it has no material effect, and we conclude that the conviction is unsafe, we will consider the much more difficult question of whether in the circumstances, where the prosecution now dispute much of the evidence on the basis of which the hearing of the appeal proceeded, we should substitute a verdict of manslaughter. It is important to recall that the prosecution had originally urged us in their submissions before and at the hearing, in the event that the conviction was unsafe, to substitute a conviction for manslaughter.

Our conclusion on the safety of the conviction for murder.

We approach the question of safety on the basis of the psychiatric evidence we have set out and on the basis that a conclusion on the safety of the conviction does not involve us in reaching a definite conclusion on matters relating to the conditions in Afghanistan. We have to proceed on the basis that the extract from the Telemeter Report, even though now disputed in many more respects by the prosecution, contained for present purposes a sufficient evidential basis, together with the other evidence, to support the conclusion that if the defence of diminished responsibility had been before the court martial, there would have been a reasonable doubt as to the safety of the conviction. Our reasons are as follows.

The decision not to plead the defence at the time of the court martial

It was again common ground between the psychiatrists that the appellant was suffering from an adjustment disorder at the time of the court martial.

It was the opinion of the psychiatrists that the appellant lacked insight at the time of the trial. He would not have wanted to advance a psychiatric defence because of the matters to which we have referred at paragraph 35. He only knew of PTSD and was not suffering from that. Additional factors were the stigma, perception of weakness and the likely end of his career.

We have also carefully considered the diagnosis made by Dr Orr after conviction and prior to sentence to which we have referred at paragraph 4 above. We accept the evidence of all three psychiatrists that Dr Orr had a very limited brief and that he was not applying his mind to the appellant’s mental

Critical to our conclusion on this issue is that, at the initial hearings before this court in December 2016, the prosecution accepted that there was a reasonable explanation for the failure to call psychiatric evidence at trial and, thus, for failing to advance the partial defence of diminished responsibility. This concession has meant that it is not right to conclude that there was a tactical reason for failing to deploy it. Had it been otherwise, it would not have been appropriate for this court to consider the defence at all: see R v Erskine [2009] EWCA Crim 1425, [2010] 1 WLR 183.

The prevalence of adjustment disorder

The evidence of Professor Greenberg was that about 20-25% of combat troops deployed to Iraq and Afghanistan at some point suffered from a mental health difficulty; those that had mental health problems were more likely to commit or at least condone morally reprehensible behaviour. In 2012 and 2013, the most common form of mental health diagnosis, about one third of those diagnosed, were adjustment disorders.

As this was the first case as far as any of the witnesses were aware in which an adjustment disorder had been associated with the killing of an enemy, a very considerable degree of caution is required. The evidence was that all elite troops (which the Royal Marines are) are trained to withstand stress and to be resilient, particularly when well led. However, as Professor Greenberg stated and we accept, everyone has a breaking point. As he pithily expressed when cross examined by counsel for the prosecution:

“There isn't any such thing as a Rambo-type, Arnold Schwarzenegger soldier who can face all sorts of stressors and appear to be invulnerable. That sort of person only exists in the cinema.”

Reliance on the appellant’s account and his credibility

As we have set out above, the psychiatrists had interviewed the appellant and relied on his evidence in the diagnosis of the adjustment disorder and its severity. The prosecution invited us to disbelieve the appellant and placed particular reliance on the findings of the Board as set out in the sentencing remarks.

We were referred to a number of authorities in which this Court has looked at the reasons set out in the sentencing statement in determining the safety of the conviction: R v Stables [2010] EWCA Crim 2405 at paragraphs 8-9; R v Gray [2012] EWCA Crim 252 at paragraph 3 and R v Moffat [2014] EWCA Crim 332, [2014] 2 Cr App R (S) 37.

In a case such as the present where the findings set out in the sentencing decision were of such gravity, it would be both just and necessary to consider by further and fuller argument on the nature of a court martial, the way in

However, it is not necessary for us to consider these decisions. It is clear to us that findings of the Board, particularly in relation to the credibility of the appellant, cannot now be of substantial weight, as the Board had not heard the psychiatric evidence which could have impacted on its judgement. Further, we attach little material significance to the lies in his interview by the military police, not least because we have taken into account his explanation for the lies and, in particular, his recognition at the time that for a number of reasons, not least related to his position in the marines, he would not have wanted to admit that he had behaved disreputably and contrary to proper standards.

Nor can we accept the prosecution contention that the psychiatrists were flawed in their reliance on the appellant’s evidence and in attaching credibility to his evidence. The psychiatrists followed the approach of assessing the account in the light of all the other objective evidence; it is the same approach which we have followed.

The approach to safety

The approach to assessing the safety of a conviction in an appeal where there is fresh evidence generally was summarised in Burridge [2010] EWCA Crim 2847, [2011] 2 Cr App R (S) 27:

“[99] That brings the court to define the grounds for allowing an appeal on this basis, the principles of which are set out in a number of authorities at the forefront of which is R v. Pendleton [2001] UKHL 66; [2002] 1 Cr. App. R. 34; [2002] 1 WLR 72 (per Lord Bingham of Cornhill, at page 83, paras. 18 and 19) which was followed by this court in R v. Hakala [2002] EWCA Crim 730 and R v. Hanratty [2002] EWCA Crim 1141, [2002] 2 Cr App R 30. This line of cases was cited in Dial & anor v. State of Trinidad and Tobago [2005] UKBC 4; [2005] 1 WLR 1660 by Lord Brown of Eaton-under-Heywood who gave the judgment of the majority (the others being Lord Bingham of Cornhill and Lord Carswell) and put the matter in this way:

“[31] In the board's view the law is now clearly established and can be simply stated as follows. Where fresh evidence is adduced on a criminal appeal it is for the Court of Appeal, assuming always that it accepts it, to evaluate its importance in the context of the remainder of the evidence in the case. If the court concludes that the fresh evidence raises no reasonable doubt as to the guilt of the accused it will dismiss the appeal. The primary question is for the court itself and is not what effect the fresh evidence would have had on the mind of the jury. That said, if the court regards the case as a difficult one, it may find it helpful to test its view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict’: R v Pendleton [2002] 1 All ER 524 at [19]. The guiding principle nevertheless remains that stated by Viscount Dilhorne in Stafford v DPP [1973] 3 All ER 762, [1974] AC 878 at 906, and affirmed by the House in R v Pendleton:

“While the Court of Appeal and this House may find it a convenient approach to consider what a jury might have done if they had heard the fresh evidence, the ultimate responsibility rests with them and them alone for deciding the question [whether or not the verdict is unsafe]”

Our conclusion

The prosecution contended that there was no contemporaneous evidence relating to his suffering from an adjustment order; the evidence obtained after conviction was insufficient to show that he had an adjustment disorder or that there was any substantial impairment.

We have set out at paragraph 35 the experience of the psychiatrists that assessments can properly and routinely be made at a time significantly after the events to which the assessment relates. It would clearly have been much better if there had been an assessment by the prosecution prior to the court martial, but that did not happen. The Privy Council observed in Robinson v The State [2015] UKPC 34 at paragraph 29 when discussing the process for considering the defence of diminished responsibility in England and Wales:

“In England and Wales these decisions are facilitated by the usually ready availability of full medical reports from experienced forensic psychiatrists. It is an important contribution to this process that every person charged with murder is routinely assessed by such a psychiatrist instructed by the prosecution, and early after arrest, either in prison or, in the relatively few cases in which s/he is on bail, as a condition of bail. So long as this careful consideration is given to each case, it is plainly of public benefit for pleas of guilty of manslaughter to be accepted. This avoids trials on non-issues which will be both expensive to the public and distressing to many of those involved, whether as witnesses, or relatives of the deceased, or as defendants and their families.”

This practice was again referred to in Golds at paragraph 48. Unfortunately, it is the experience of members of this court that in cases before the ordinary courts, the routine practice of the prosecution in obtaining reports is no longer followed. This appears to be related to the very real delay that obtaining such a report incurs along with the increasing cost involved. In many cases, such a decision may be entirely justifiable, but it is particularly unfortunate in any case involving conduct which is entirely inconsistent with the prior character and conduct of the defendant. That is even more so in a case such this where, in any event, there is a real responsibility placed upon the armed forces in respect of the mental health and welfare of their troops.

Unfortunate though that may have been, the totality of the evidence before us is now clear. If the expert evidence of the psychiatrists and the other evidence which we set out fully at paragraphs 86-106 below had been before the court martial, we are in no doubt but that the defence of diminished responsibility would have had to have been left to the Board and that it could have affected their decision to convict. It matters not for this purpose that the evidence as to conditions in Afghanistan is disputed by the prosecution. That evidence plainly had sufficient force and credibility (even if disputed) together with the psychiatric evidence to form the basis of a case that the defence of diminished responsibility that could be advanced. Such a case, if it had been advanced before the Board could have raised a doubt as to guilt in the minds of the Board. As a result, the verdict is unsafe and the conviction for murder must be quashed.

We turn next to consider the much more difficult question as to whether we should substitute a verdict of manslaughter by reason of diminished responsibility instead of remitting the case for a retrial.

The power to substitute a verdict of manslaughter by reason of diminished responsibility

The power to substitute is contained in s.14 of the Court Martial Appeals Act 1968 which provides:

“(1)

This section applies where an appellant has been convicted of an offence and the Court Martial by which he was tried could lawfully have found him guilty of some other offence, and it appears to the Appeal Court on an appeal against conviction that the Court Martial must have been satisfied of facts which proved him guilty of that other offence.

(2)

The Appeal Court may, instead of allowing or dismissing the appeal, substitute for the finding of the Court Martial a finding of guilty of the other offence, and may pass on the appellant, in substitution for the sentence passed on him by the Court Martial, such sentence as they think proper, being a

sentence warranted by the relevant Service Act for that other offence, but not a sentence of greater severity.”

This mirrors the provisions of s.3 of the Criminal Appeal Act 1968.

The power to substitute (under s.3) a conviction for manslaughter on the basis of medical evidence not adduced at trial was recognised in R v Weekes [1999] Crim LR 907 and in R v Campbell [1997] 1 Cr App R 199. Whether it is appropriate for the court to substitute will depend on the individual circumstances. In neither of these cases, nor any other case involving fresh evidence, was the court troubled by the language of s.3 (1) which appears only

The difficult question for us is whether in the light of all the submissions made before us, and in particular the post-hearing submissions of the prosecution, we should substitute the verdict of manslaughter. At a trial, it is for the defendant to establish the partial defence of diminished responsibility on a balance of probabilities. It is therefore necessary for us on the basis of the evidence to consider whether such a defence would be established on a balance of probabilities. Neither is it determinative that both the appellant (advised by counsel) and the respondent agree that if the conviction for murder is quashed, a conviction for manslaughter by reason of diminished responsibility should be substituted.

It is thus necessary for us to analyse the position for ourselves. As it is not in dispute that at the time of the killing the appellant was suffering from an adjustment disorder, it is necessary to focus intensely on the evidence relating to the issue of substantial impairment.

The evidence relating to substantial impairment

We have set out at paragraph 39 the five headings under which we summarised the approach of the psychiatrists to the evidence. We will use the same headings. We have taken into account, as agreed before us, all the material before the court martial and the material placed before this court. We have accorded the written material, including the statements of witnesses not called, the weight we considered appropriate.

The evidence in relation to the appellant’s condition prior to his deployment to Afghanistan

The evidence in relation to the appellant prior to his deployment to Afghanistan was that:

We are satisfied on the evidence that he was an exemplary soldier.

The appellant’s father had died (after suffering from Parkinson’s disease) shortly prior to his deployment to Afghanistan in March 2011.

The appellant returned to the UK in July 2011 to scatter his father’s ashes which he did on 24 July 2011. It is apparent that this caused him to reignite his grief.

We are entirely satisfied that the death of his father shortly before his deployment to Afghanistan and the subsequent return to the UK to scatter his father’s ashes placed significant stress on him.

The circumstances under which the appellant was operating in September 2011

As we have set out at paragraphs 47-64, significant issues were raised about the agreed extract from the Telemeter report in the light of the decision made by General Sir Gordon Messenger and the Ministry of Defence on 7 December 2016 to which we have referred at paragraphs 58 and following above.

Although the reliability of the matters set out in the agreed extract from the Telemeter report in this appeal is a matter entirely for our decision (as it would be for the Board in any retrial), in reaching our decision on its reliability we must have regard to the conclusion reached by General Sir Gordon Messenger and the Ministry of Defence on the complaint of Col Murchison and the note placed on the report at the request of the Ministry of Defence. We do so, nonetheless, in circumstances where we have no information, beyond the matters set out in the decision of General Sir Gordon Messenger and the Ministry of Defence, as to the process by which they reached their decision or the evidence they heard, if any, in relation to the Telemeter Report. On its face, the decision, despite the fact it contained substantial criticism of a report that has played a central role in this appeal, seems to have been reached by a review of the report itself, its terms of reference and correspondence. We have taken that fact into account in assessing the weight to be attached to the decision of General Sir Gordon Messenger and the Ministry of Defence on the Telemeter Report.

We have, in this context, therefore carefully considered the detailed reasons given by General Sir Gordon Messenger and the Ministry of Defence in Annex B of their decision and its relevance to the matters set out in the agreed extract of the Telemeter Report that is before the court. It is clear in our judgement that the conclusion reached was primarily directed at the investigation of the matters giving rise to the criticism of Col Murchison and others in the chain of command. However the wording of the decision goes significantly beyond that, as it refers to the process of the review resulting in the report having been flawed and there having been insufficient rigour.

We must, however, treat wide-ranging statements in context. On a proper reading of the decision of General Sir Gordon Messenger and the Ministry of Defence and the apparent circumstances in which the decision was reached, we have concluded that the broader wording is solely directed at the way in which the investigation and the report related to criticisms of Col Murchison and the chain of command. That is the essence of the statement the Ministry requested be attached to the report. The remarks must therefore be read narrowly. We cannot see any basis on which such a carefully written report as

That reading is entirely consistent with the position taken in the pre-hearing submissions made by the prosecution about the Telemeter Report. The decision of General Sir Gordon Messenger and the Ministry of Defence dated 7 December 2016 was relied on (see paragraph 144 of the submissions) in respect of the criticism of Col Murchison and others in the chain of command. It did not extend beyond that.

We proceeded to hear the evidence on the basis that the criticism of the extracts from the report was limited in that way. It was for that reason we adopted the approach to the issues relating to Col Murchison’s evidence set out at paragraph 101 below.

In all the circumstances:

Having rejected the post-hearing submissions of the prosecution on the wider criticism of the Telemeter report and having considered all the evidence we are satisfied that:

There was a significant dispute between Lt Col Lee and Lt Col Murchison as to the level of support provided to CP Omar, the visits made and the adequacy of the command of Lt Col Murchison and Major Fisher. We had statements from each of these as well as Warrant Officer Pooler and Regimental Sergeant Major Moran.

It was not necessary for us to resolve that dispute or assess the reliability of the Telemeter Report as regards the command by Lt Col Murchison and Major Fisher in the light of the submissions made by the prosecution about the Telemeter Report and the evidence of Col Lee. Nor do we need to resolve the significant conflict in the evidence given by Col Lee and Col Murchison to which we have referred. That was because it was common ground amongst the psychiatrists that what was relevant to the mental state of the appellant and his responsibility for the killing was the perception that the appellant had of the support given to him. That perception can be summarised:

Professor Greenberg’s evidence was that it was key to the mental health of a unit that they felt supported and their safety was given real consideration; the perceived lack of leadership by Col Murchison and Major Fisher and their perceived lack of support were key stressors on the appellant. The appellant’s perception of the lack of leadership from those above heightened his sense of responsibility. As we have said it is not necessary for us to determine whether that perception was justified. It was the perception that was relevant.

An appraisal of the appellant written by Major Fisher dated 10 September 2011 noted that the appellant had probably reached his ceiling as “he lacked the dynamism to go further in his career”. This was in marked contrast to his earlier appraisals. Far from assisting the prosecution, this would therefore appear to confirm that the appellant had changed significantly whilst at CP Omar; it provides support for the conclusion of Professor Greenberg that this may well have resulted from his adjustment disorder.

The other evidence in relation to the day on which the insurgent was killed 104. On 15 September 2011:

The other evidence relating to the mental state of the appellant

The serious nature of the appellant’s mental condition was evidenced by:

The evidence of the appellant

Each of the psychiatrists interviewed the appellant at length. It is not necessary for us to set out any more in relation to his account.

Our conclusion on substitution of a verdict of manslaughter

On the basis of this evidence we turn to assess whether the evidence entitles us on the balance of probabilities to find, on all the evidence before us (including the evidence before the court martial), that a Board (or jury) would conclude on the balance of probabilities that the appellant suffered from an abnormality of mental functioning arising from the adjustment disorder which substantially impaired his ability to form a rational judgement or to exercise self-control and provided an explanation for the killing of the insurgent.

The exceptional nature of the circumstances in which the appellant was placed

We have had to consider what led the appellant deliberately to kill the insurgent at a time when he was incapacitated. The key issue, as correctly identified by Dr Joseph, was (1) whether it was a cold-blooded execution as the Board of the court martial concluded on the evidence before them or (2) whether it was the result of a substantial impairment of his ability to form a rational judgement or exercise self-control arising from his adjustment disorder.

Having considered all the evidence before us, we have concluded:

As we have observed at paragraph 34, a person with such a disorder can appear to act rationally. In this case examples include moving the body out of the sight of the camera, waiting for the helicopter to move away, stating that he was not be shot in the head and other similar comments which we have described.

However, that type of planning is quite distinct from the effect of an adjustment disorder which can affect the ability to form a rational judgement about (1) the need to adhere to standards and the moral compass set by HM Armed Forces and (2) putting together the consequences to himself and others of the individual actions he is about to take. In our view, the adjustment disorder had put the appellant in the state of mind to kill, but the fact that he acted with apparent careful thought as to how to set about the killing had to be seen within the overarching framework of the disorder which had substantially impaired his ability to form a rational judgement.

We have also considered whether he lost his self-control (within the context of diminished responsibility). There can be little doubt that on 15 September 2011 the appellant was angry and vengeful and had a considerable degree of hatred for the wounded insurgent. On prior deployments, similar emotions had been controlled by him. The appellant’s decision to kill was probably impulsive and the adjustment disorder had led to an abnormality of mental functioning that substantially impaired his ability to exercise self-control. In our judgement the adjustment disorder from which he was suffering at the time also impaired his ability to exercise self-control.

It follows that the other grounds of appeal will not fall for consideration by this court. We would, however, like to make it clear that, when reviewing the matters the subject of our judgement, we could see no basis for any criticism of the conduct of the court martial by the Judge Advocate General. He left the issues which had been raised by the prosecution and the defence during the hearing of the court martial to the Board in an entirely fair and proper manner.

In the circumstances, we therefore substitute a verdict of manslaughter by reason of diminished responsibility.