Bad Criminal Law in the Alexander Blackman Case (With Addendum)

In September 2011, Alexander Blackman, a Sergeant in the Royal Marines serving in Afghanistan, executed a Taliban fighter who had been incapacitated by his wounds.This was no spur-of-the-moment killing, as video recovered one year later makes clear. Here is the Court Martial’s summary of Blackman’s actions, as shown on the video:

[The insurgent] had been seriously wounded having been engaged lawfully by an Apache helicopter and when [Blackman] found him he was no longer a threat. Having removed his AK47, magazines and a grenade, [Blackman] caused him to be moved [because Blackman] wanted to be out of sight of [the] operational headquarters at Shahzad so that, to quote what [Blackman] said: ‘PGSS can’t see what we are doing to him.

He was handled in a robust manner by those under [Blackman’s] command clearly causing him additional pain and [Blackman] did nothing to stop them from treating him in that way. When out of view of the PGSS [Blackman] failed to ensure he was given appropriate medical treatment quickly and then ordered those giving him some first aid to stop.

When [Blackman was] sure the Apache helicopter was out of sight, [Blackman] calmly discharged a nine millimetre round into his chest from close range. [Blackman’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 [Blackman] gave him no chance of survival. [Blackman] intended to kill him and that shot certainly hastened his death.

[Blackman] then told [his] patrol they were not to say anything about what had just happened and [Blackman] 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.”

Not surprisingly, the Court Martial convicted Blackman of murder and sentenced him to life imprisonment. All of his fellow soldiers were acquitted.

Fast forward to last week — when the Court Martial Appeal Court (CMAC) allowed Blackman’s appeal, substituted a verdict of manslaughter for murder on the ground of diminished responsibility, and reduced his sentence to seven years imprisonment. Blackman will be a free man, with an honourable discharge from the Royal Marines, in a couple of weeks.

From a criminal law perspective, I find CMAC’s judgment profoundly unconvincing. I will explain why in this post.

CMAC’s reasoning proceeded in three steps. First, it found that Blackman had suffered from an “adjustment disorder” at the time of the killing:

32. 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, 10th 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.”

33. 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.

Second, CMAC decided that because of his “adjustment disorder,” Blackman was not able to form a rational judgment or maintain self-control at the time of killing:

109. Having considered all the evidence before us, we have concluded: (i) The appellant had been an exemplary soldier before his deployment to Afghanistan in March 2011. (ii) The appellant suffered from quite exceptional stressors we have set out at paragraphs 99-103 during the time of that deployment which increasingly impacted on him the longer he was in command at CP Omar. In addition to the matters we have set out, it is clear that a Judgment Approved by the court for handing down R v Blackman (CCRC reference) consequence was that he had developed a hatred for the Taliban and a desire for revenge. (iii) At the time of the killing, the patrol remained under threat from other insurgents as we have set out at paragraph 104. (iv) Given his prior exemplary conduct, we have concluded that it was the combination of the stressors, the other matters to which we have referred and his adjustment disorder that substantially impaired his ability to form a rational judgement.

112. 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.

Third, and finally, CMAC concluded (para. 114) that because Blackman could not form a rational judgment at the time of the killing as a result of his adjustment disorder, he was entitled to a partial defence of diminished responsibility, reducing his crime from murder to manslaughter.

That defence 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.”

I have problems with how CMAC analysed all three elements of diminished responsibility.

Recognised Medical Condition

British courts have interpreted “recognised medical condition” very broadly. Almost any medical condition will qualify, whether physical, mental, or psychiatric. Examples include alcohol dependency; ADHD; diabetes; depression; learning disabilities; and autism-spectrum disorders.

There is no question “adjustment disorder” is a recognised medical condition. What’s troubling is that CMAC primarily based its conclusion that Blackman suffered from adjustment disorder on the testimony of two experts who only examined Blackman years after the murder took place (para. 29) — and thus long after Blackman’s “moderate” disorder should have dissipated, by CMAC’s own account. Moreover, the one expert mentioned by CMAC who examined Blackman closer to the crime, spending two hours with him in November 2013, concluded (para. 4) that Blackman “may have been suffering from a combat stress disorder which had gone undetected,” but insisted that the disorder “was no defence to criminal misconduct.” CMAC dismissed that conclusion, insisting that the expert “was not applying his mind to the appellant’s mental state at the time of the killing.” But that is simply false, given that “combat stress disorder” specifically affects a soldier’s mental state.

Beyond non-contemporaneous evidence from Blackman himself — which has almost zero probative value concerning his mental state five years earlier — the court cited the following as evidence that Blackman suffered adjustment disorder (paras. 99-103): his father had died earlier in the year, causing him significant grief (he “looked at the ground a lot” after the funeral); he had not received the “full amount” of pre-deployment training because of his father’s death; he had lost friends in combat; he “did not feel safe at night” in Afghanistan; it was hot during combat patrols and he had to carry very heavy gear; he was deprived of sleep because of patrolling; “there was a constant threat of apparently friendly people acting as insurgents”; there had been ambushes and IEDs in the area and the Taliban had been desecrating corpses; he felt responsible for his men; he didn’t feel supported by his superiors; he “lacked dynamism to go further in his career”; he had been in a “flat mood” with a friend during golf a few months before the murder; and he was startled in response to a loud bang in a NYC theatre. (I’m not making those last two up.)

In other words, other than the death of his father, which is hardly unusual, and the loss of a few days of training, Blackman’s supposed adjustment disorder was based on factors common to basically every soldier who ever served in a dangerous part of Afghanistan or Iraq. And indeed, one of the experts suggested that 20-25% of combat troops deployed to Iraq and Afghanistan at some point suffered from a mental health difficulty, with 33% of those soldiers suffering from an adjustment disorder. In other words: approximately 1 out of every 12 British soldiers in Afghanistan suffered from the kind of “recognised mental condition” that, according to CMAC, meant they were almost legally incapable of committing murder.

That’s terrifying.

Substantial Impairment

it is not enough that a defendant suffered from a recognised medical condition. That condition must also have substantially impaired the defendant’s ability to do at least one of three things:

• To understand the nature of his conduct
• To form a rational judgment
• To exercise control

According to CMAC, Blackman’s adjustment disorder substantially impaired his ability to form a rational judgment and to exercise control. Neither conclusion is remotely convincing.

With regard to rational judgment, CMAC claims (para. 111) that Blackman’s adjustment disorder interfered with “(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.” Blackman’s words and actions, however, contradict that claim. First, Blackman was quite aware of the standards the Royal Marines expected of him. After all, immediately after shooting the wounded Taliban fighter, he immediately turned to his men and said that he had just broken the Geneva Conventions. That is an unequivocal indication that Blackman knew he had done something wrong. Second, he was more than capable of understanding the consequences of his actions. If he did not think his actions were wrong and would be punished, he had no reason to deliberately move the Taliban fighter to a location out of view of operational headquarters, to wait until the helicopter passed by to shoot him, or to insist that the Taliban fighter not be shot in the head. (CMAC notes in para. 21 that when one of his soldiers aimed his gun at the fighter’s head, Blackman stopped him, saying “No, not in his head, ‘cause that’ll be fucking obvious.”)

It’s also worth noting that the kind of irrational judgment Blackman supposedly formed (that it’s fine to shoot a wounded Taliban fighter) bears little resemblance to the kinds of irrational judgments mentioned by the Law Commission when it reformed the defence of diminished responsibility in 2009:

• A battered woman comes to believe that only burning her husband to death will rid the world of his sins.

• A mentally handicapped boy takes part in a killing because he believes that his older brother would never ask him to do something wrong.

• A depressed man kills his terminally ill spouse, because her requests to kill her have so dominated his thoughts that he felt he would never think straight again until he did what she wanted.

CMAC’s claim that Blackman’s adjustment disorder prevented him from exercising control is equally unconvincing. As noted above, this is the sum total of what the court says (para. 112): “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.” To begin with, there is a basic difference between saying someone acted impulsively and saying that a person could not control his actions. More fundamentally, though, the CMAC doesn’t even attempt to explain why, if he had no control over his actions, Blackman was able to so carefully ensure that the murder would not be seen — either by operational headquarters or by the passing helicopter — and was able to stop one of his soldiers from shooting the Taliban fighter in the head because it would look too premeditated. Nor does CMAC attempt to explain why, immediately after “uncontrollably” killing the Taliban fighter, Blackman had enough self-control to announce that he had broken the Geneva Conventions and to come up with a cover story for his actions.

Causation

Finally, the substantial impairment caused by the recognised medical condition must “explain” the defendant’s decision to kill. Such an explanation exists if the substantial impairment “causes, or is a significant contributory factor in causing, D to carry out that conduct.”

This is perhaps the most problematic element of all. Even if we grant that Blackman had an adjustment disorder that substantially impaired his reasoning ability and self-control, nothing in the videotaped sequence of events suggests that there was a casual connection between the impairment and Blackman’s decision to murder the incapacitated Taliban fighter. As noted above, CMAC’s conclusion to the contrary is based on the idea that Blackman was able to think rationally and control his actions at every moment other than the moment when he fired a round into the Taliban fighter’s chest. In fact, it openly — if unconvincingly — says as much:

110. [A] person with such [an adjustment] 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.

111. However, that type of planning is quite distinct from the effect of an adjustment disorder…

It is far more reasonable to assume that, in fact, Blackman was thinking rationally and in control of his actions throughout the sequence — that he simply murdered the incapacitated Taliban fighter in cold blood. Indeed, CMAC casually acknowledges (para. 109; my emphasis) that, “[i]n addition to the matters we have set out, it is clear that he had developed a hatred for the Taliban and a desire for revenge.” Needless to say, if that was the cause of the killing, the adjustment disorder was not.

Conclusion

It is possible that Blackman suffered from adjustment disorder at the time of the murder. It is possible that his adjustment disorder substantially impaired his ability to think rationally and to control his actions. It is possible that an inability to think rationally and to control his actions caused him to murder the Taliban fighter. As CMAC notes, though (para. 84), diminished responsibility is one of only two defences in British criminal law — the other being insanity — where the legal burden of proof is on the defendant, not on the prosecution. So CMAC had to conclude that it was more likely than not that Blackman suffered from diminished responsibility at the time of the murder — not that the prosecution couldn’t disprove diminished responsibility beyond a reasonable doubt.

In my view, there was simply no basis for CMAC concluding that it was more likely than not that Blackman suffered from diminished responsibility. And I don’t think it is too cynical to say that the identity of the defendant — a Royal Marine — had a significant effect on CMAC’s reasoning. If the roles were reversed and a Taliban fighter had been convicted of murdering Blackman in exactly the same circumstances, I think we all know whether the Taliban fighter would be convicted of manslaughter instead of murder because of a combat-inspired “adjustment disorder.”

ADDENDUM: My colleague Kate Grady has called my attention to Blackman’s first appeal to CMAC, in 2014. The judgment in that appeal, which led to a two-year reduction of his 10-year minimum term, further illustrates CMAC’s incoherent approach to mental-health evidence. In para. 40, reacting to the psychiatric report of the expert who examined Blackman in 2013, CMAC says that “[i]t was not possible two years after the killing of the insurgent to diagnose whether the appellant was in fact suffering from combat stress disorder.” But then, in para. 75, it says that “[t]aking into account the whole of the evidence, we conclude that combat stress arising from the nature of the insurgency in Afghanistan and the particular matters we have identified as affecting him ought to have been accorded greater weight as a mitigating factor.” CMAC does not bother to explain why it credited Blackman for combat stress it said could not be diagnosed.