Thursday, 6 July 2017

Afghan war crimes allegations 2: The Blackman defence

Lord MacDonald, the former Director of Public Prosecutions and current Warden of Wadham College, Oxford, has called for a judge-led inquiry into the ditching of the Royal Military Police inquiry. There is a clear public law question as to whether it was lawful or rational for the MoD to stifle the RMP inquiry, and whether it actually did stifle it. There is also a criminal law question surrounding the soldiers’ alleged conspiracy to plant weapons on the corpses of civilians.

However I’m most interested in whether the RMP could have any success in bringing murder charges, as they intended to, in light of the Court of Appeal’s decision in the Alexander Blackman case. 

Blackman had been accused of killing a wounded Taliban militant in cold blood. The video evidence seemed to show as much, and at first instance he was convicted of murder by a military court. The Court of Appeal subsequently agreed in its judgment that he had the partial defence of diminished responsibility, which led to a substituted conviction for the lesser offence of voluntary manslaughter. Blackman’s responsibility for killing the militant was diminished, the court held, because his role as a marine sergeant in Helmand put him under ‘quite exceptional stressors’ [109] leading to an ‘abnormality of mental functioning’ per section 2 of the amended Homicide Act 1957.

My concern is that, if followed closely, the judgment in Blackman would mean that any infantryman or marine accused of killing a combatant hors de combat in an intense and stressful campaign would be able to run the partial defence of diminished responsibility. As infantry fighting is almost always intense and stressful – the job is still commonly described as ‘closing with and killing the enemy’ – the effect of Blackman might be to make it almost impossible for any infantryman to be convicted of murder, no matter how callous and calculated the killing. If stress is intrinsic to being a soldier on the front line, does Blackman create an intrinsic defence to murder?

This in turn engages matters of public policy. It is clearly in the national interest to maintain a cadre of soldiers who are able to kill lawfully in combat for purposes of national defence, who are trained to do so in a professional manner strictly distinct from outright murder, and whose conduct does not diminish the standing of the armed forces or of the nation. If it becomes impossible to identify and punish murder when it is committed by infantrymen and marines, then the professionalism of the armed forces and the national standing would be harmed. As, of course, would justice itself.

On the other hand, however, as soldiers have rights and duties under law as everyone does, and do not form a special class of citizen with special privileges or restrictions, they must in turn have the right to a lawfully valid defence such as diminished responsibility.

How, then, can these two conflicting aims be reconciled? How can we insist that soldiers kill lawfully and professionally, in intrinsically stressful circumstances that would defeat civilians’ ability to act rationally, while also accepting that in some circumstances soldier’s responsibility to kill lawfully and professionally is diminished by the mental stress that combat can cause?

I argue that a balance can be struck, but it is not to be found in Blackman.

Critique of Blackman

The Court of Appeal found that Blackman did indeed kill the injured militant in cold blood, but that his responsibility for doing so was diminished by an ‘adjustment disorder’, a psychological impairment caused by the stresses of combat in Helmand province. He was not in his right mind when he committed the killing.

In making this finding, the court applied section 2 of the amended Homicide Act 1957. The section says that a defence of diminished responsibility requires the following:

  • an abnormality of mental functioning 
  • which arose from a recognised medical condition,
  • and substantially impaired the defendant’s ability (a) to understand the nature of his conduct; (b) to form a rational judgment; (c) to exercise self control.
If it can be proved that the abnormality explained why the defendant killed, then the defendant cannot be guilty of murder but can still be convicted of manslaughter. Importantly, it is for the defence to prove, on the balance of probabilities, that the defendant suffered from the abnormality – if the defence is made out to that standard, then the prosecution must rebut it beyond reasonable doubt in order for a murder charge to stand.

It is certain that due to Blackman’s condition the charge for murder could not have been proved beyond reasonable doubt, and highly likely that the prosecution could not have rebutted a defence of diminished responsibility to that standard. I am less certain, however, that the defence of diminished responsibility could have been proved on the balance of possibilities in the first place.

The psychological assessment of Blackman which uncovered the adjustment disorder was carried out some time after the incident, which led the prosecution to object that it could not be proved that his mind was impaired when he killed the militant. The court seems to have rejected this contention on the grounds that Blackman, previously an exemplary soldier, was showing signs of stress before the incident, and was in such difficult and stressful circumstances at the time of the killing that it could be inferred that the adjustment disorder determined his behaviour when he killed the militant. Those circumstances were:

  • Returning to UK to scatter ashes of recently deceased father;
  • B had not received the full amount of pre-deployment training;
  • had not been trained in Trauma Risk Management
  • junior officer killed whilst on patrol, thus B lost the support of his junior officer (‘of material significance as a stressor’)
  • powerful evidence that members of the unit under B's command were always on edge and did not feel safe at night
  • Padre did not visit B’s post because it was too dangerous (‘evidence of a further stressor’
  • The base was ‘during summer months under constant external threat and difficult to reach safely. It was isolated. It was without doubt austere.’
  • J company had been hardest hit by the insurgents, that they were losing ground to the insurgents and by the end of the tour were combat weary.
  • B's unit was undermanned: the previous multiple had been 25; the multiple under the appellant was 16
  • Unit was required to patrol between 5 and 10 hours a day over rough ground in heat that was normally over 50 degrees Celsius when carrying a minimum of 100lbs of equipment. The court rejected the submission that this was irrelevant to the psychiatric assessment
  • All men exhausted and deprived of sleep, but B particularly so as sgt
  • B regarded himself as responsible for welfare of troops.

Viewed in totality, this is a compelling list of stressors, particularly when the subsequent proof of the adjustment disorder is taken into account. There are, however, two difficulties. 

First, the wording of the Homicide Act specifically requires a subjective impairment that impairs the defendant’s internal mental functioning and, subsequently, how he acts – is proof of the external circumstances endured Blackman enough to infer, on the balance of probabilities, an internal state of mind? As I discuss below, what if he just powered through? 'Cracked on' as the military say. It seems to me that the court gave undue weight to objective circumstances without determining how they caused an impairment in Blackman’s reasoned and reflective self-control.

Second, the circumstances listed above, while probably unendurable for a civilian like myself, reflect in large part the imperfect realities of being an infantryman or marine fighting in the difficult Helmand campaign. The physical ordeal, the less-than-adequate training and manpower, the stress of imminent danger, the horrors of violent killing – it is overwhelmingly likely that most infantrymen, especially those who fought in Helmand, would be able to cite similar stresses if accused of murdering the enemy. 

Consider next that, as the court heard from an expert witness, ‘about 20-25% of combat troops deployed to Iraq and Afghanistan at some point suffered from a mental health difficulty’ – and consider too that any accused soldier would probably be legally advised to get himself within that 20-25% bracket. 

The corollary, then, of the court’s emphasis on external circumstances as a means of ascertaining Blackman’s internal state of mind is to create a precedent in which almost any infantryman accused of battlefield murder could avail himself of a blanket partial defence.

An objective duty of resilience?

How can the Homicide Act, and the Court of Appeal’s construction of it, be interpreted so as to allow infantrymen the right to the diminished responsibility defence, without it being a blanket defence?

First, a solution that could not work.

There are obvious policy grounds for demanding that soldiers behave lawfully even when faced by stress that would impair others – that is, largely, one of the main points in training people to be soldiers. As Joseph Heller asserts in Catch-22, seeking to get out of combat is merely proof that you are sane – only an insane person would do otherwise. However, while it is reasonable to acknowledge that soldiers often inhabit a world far removed from the world of civilians of lawyers and judges, in which mind-bending stresses are the norm, it could not be just to demand legally that soldiers meet an objective, raised standard of mental resilience. 

First, at a certain level of mental functioning minds control people, people don’t control minds. If an impaired mind caused someone to do something illegal, he or she could not be held culpable for failing to meet some objective standard of resilience, as doing so was beyond his or her control – to hold that person culpable would be to punish him or her for not having a different mind, essentially for not being a different person. The need for soldiers who can kill in stressful situations without becoming insane or criminal is important, but not so important that it could justify such obvious unfairness. Soldiers are people.

Second, it would not be just to hold soldiers to a higher legal standard, such that a soldier would be liable for murder where a civilian would be liable for manslaughter, simply on the grounds that the soldier should have been more resilient. That would be to say that the state could legally punish soldiers for failing to meet super-human standards of resilience. Again, this would be unfair as soldiers are human and cannot be punished for being any less.

It is difficult to see how soldiers could be forced to accept a higher, less diminishable responsibility of reasoned self-control without the above problems biting. So any solution to the conundrum must be found within the current provisions of the Homicide Act – once it is shown as a matter of fact that the mind of any defendant is impaired, thus causing him to commit homicide, the partial defence of diminished responsibility becomes available.

Subjective resilience

The Homicide Act 1957 says that a recognised medical condition must 
substantially impair the defendant’s ability (a) to understand the nature of [his] conduct; (b) to form a rational judgment; (c) to exercise self control.
In specifying that the ability to exercise self-control etc. is the ability of the defendant, the Act leaves it open to the court to take into account as a matter of fact the subjective capacity for self-control of different defendants, even in the face of mental impairment. It is uncontroversial that infantrymen and marines acquire through their training a heightened ability to form rational judgments and exercise self-control in extremely stressful circumstances (as accepted by the court at [71]). Should Blackman have had to prove, then, that the impairment was such that it diminished a capacity for self-control that was already unusually heightened?

There is a fair argument that the court should have paid much more to the following:

  • the typical resilience of infantrymen, and the extent to which Blackman showed more or less of such resilience;
  • the typical stress-related mental impairments faced by infantrymen in combat, and the extent to which Blackman’s impairment exceeded them; and
  • the likelihood that the mental impairment suffered by Blackman exceeded his soldierly self-control and resilience in the face of particular stresses, such that it was, on the balance of probabilities, the cause of his killing the injured militant.

This is a purely factual question. If such an approach were suggested to a jury in a similar trial, it would have to consider questions about mental causation and might even have to reject expert psychiatric evidence. The authority of Golds says that a jury can be invited to reject expert evidence, though the judge must suggest some rational basis for doing so. It would fall within Golds for a judge to ask a jury if it believed that a particular soldier’s mental resilience would have allowed him to retain reasoned self-control in spite of a proven mental impairment – though I accept that in practice this could be difficult.

A legal question also arises – this approach might increase the burden on the defendant such that he had to prove not only the mental impairment but also a) his levels of resilience and b) that the impairment defeated his resilience. While Blackstone’s Criminal Practice is fairly clear in submitting that the switched burden in section 2 of the Homicide Act 1957 does not infringe the Article 6 right to a fair trial, it is possible that any addition to that burden might.


I think the Court of Appeal was wrong to put such emphasis on Blackman’s circumstances – it shifted the attention from his mental state, which the Act requires, and created the possibility of a blanket defence for soldiers who have killed unlawfully in intense combat. I am fairly sure that, if the Blackman decision were followed, the special forces soldiers currently accused of murder in Afghanistan would by default be able to take advantage of the diminished responsibility defence – particularly given reports of the over-deployment and exhaustion of special forces units, and the greater regularity with which they are required to kill at close proximity (in so-called ‘night raids’ for instance).

It is consistent with the Act to take account of a defendant’s subjective resilience, and doing so might be a way of keeping the DR defence open to soldiers, while still defending the policy that trained soldiers should be expected to tolerate heightened (but not infinite) stress, and kill professionally but not murderously.

The question is part of a wider, very difficult problem of litigating what happens on the battlefield. It is undesirable to say that soldiers should form a separate class of people with separate legal duties, as it would then be consistent also to say that they should have special rights and privileges beyond those enjoyed by other citizens. Yet it is also absurd to disregard the fact that fighting in war is far removed from the realities most citizens face. It is likely this will remain a conundrum.

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