I once sat as a member of a 7-officer General Court Martial which convicted a serving soldier of murder and sentenced him to life imprisonment (unlike jury members, court martial members decide on the sentence too). At the appeal, the judges noted:
“We do not know whether the verdict of the Court Martial was unamimous or by a majority, or if it was by a majority what the majority was, because the relevant provisions of trial by Court Martial do not make that provision”.
When I read the appeal court’s summary, I was struck by how odd it was that an appeal court could consider the unanimity or otherwise of the verdict important enough to a case to refer to in the summary, but not be able to find out this apparently pertinent information by simply asking the members of that Court Martial. Unlike the US justice system, the UK one does not permit jurors (nor members of courts martial) to discuss such details of the verdict. In the US, such discussion is often fundamental to analyses of whether the justice system is working – in the UK we take pessimistic view that such discussion would actually undermine justice.
Frederick Forsyth’s comment today that Sgt Blackman’s conviction was by a majority verdict of 5-2 went right to the heart of the matter. I don’t doubt Forsyth’s honesty and I imagine he’s been able to chat quietly to the officers involved, all of whom – however they voted – are obviously sympathetic to Sgt Blackman’s predicament. As Joshua Rozenberg makes clear, while a civilian jury could not convict for murder on a 5-2 ratio, the rules are different for courts martial. My own instinct, borne through my own experience, is to think it’s wrong for a soldier, but not a civilian, to be able to be convicted of murder on a 5-2 ratio. That’s not a matter for lawyers, though. It’s a matter for politicians. Indeed, all of the key points about the Blackman case are essentially for politicians rather than courts.
Politicians can change the rules for court Martial. They could, for example, rule that murder verdicts must be unanimous – or at least subject to the same ratio as a rare majority murder verdict in the civilian court system. Politicians, and only politicians, can decide whether it’s still right for anyone to be sent to a civilian prison for life without a trail by his or her peers. Courts Martial are not part of a justice system; they are part of a discipline system – that is why only superior officers of the defendant can sit in judgement on them. My own view is that cases like Sgt Blackman’s might better be done in the civilian justice system – but surely politicians should at least be considering the US military system, in which defendants in courts martial have their court martial members selected from amongst their peers – not simply their military superiors?
The largest political question of all, however, one that few politicians seem keen to ask, is how long we can go on treating all murder convictions as the same? I understand that Sgt Blackman’s supporters are looking for a manslaughter verdict at appeal, and I don’t blame them for that at all. However, as the law is presently written, it will be hard for any appeal court to accept that professionally shooting an incapacitated person dead could ever be manslaughter. What is needed is a legal system which permits juries and court martials for convict on a ‘Murder 2’, once again like the US, wherejudges do not have to apply a ‘mandatory’ life sentence and can instead take all the circumstances of the killing into account.
I am quite sure that lawyers will be able to produce civilian ‘murder’ cases which are in important legal ways analogous to the situation faced by Sgt Blackman. That means that any significant change in the law would of course have to apply not simply to soldiers. But the fact remains that the soldier’s context is a stark one. Minutes earlier, it would have been Sgt Blackman’s job to kill the insurgent he killed. Moreover, Sgt Blackman’s close colleagues had been tortured and killed, limbs hung on branches to demoralise him and his troops. I do not accept that Sgt Blackman discharged his weapon into a dead body, and obviously the dying insurgent should have been treated as a prisoner. But there is something profoundly wrong in the way we treat soldiers like Sgt Blackman and only politicians can put it right.
And the soldier I so confidently convicted of murder and sentenced to life imprisonment? After time spent in a civilian prison, he was freed by that civilian appeal court.