Putting aside, for a moment, Sergeant Blackman’s defence team failing to ask for the alternative charge of manslaughter to be brought, the rumour that members of the court martial’s panel were told to find him guilty, coupled to the alleged suppression of evidence for his defence, there is another factor in this unique and disturbing case. Quite simply, what else was Sergeant Blackman supposed to do with a mortally wounded terrorist? Very few have condemned Sergeant Al Blackman while many, many thousands are supporting his bid for a review yet no one (on either ‘side’) has been prepared to say what he should have done. A number have commented adversely on his actions but unless they can answer this question their statements are shallow to the point of being meaningless.
So, let me as, then, the Second in Command of 3 Company, the Desert Regiment, the Sultan of Muscat’s Armed Forces (on loan from A Company, the Northern Frontier Regiment – which I was commanding) offer a few suggestions based on my own experience. On the 11th January 1968 during the Dhofar War and in the middle of a fire fight (the first of three that day, of many days) I put to sleep my mortally wounded Arab (Muslim) Sergeant Major with an overdose of morphine. On reflection I had roughly the same choices available to me in 1968 as, I would suggest, Sergeant Blackman had on the 15th December 2011 in Helmand . His were these:
Third. Drag him to safety. Safety from what? It might have been safe for the terrorist in his dying moments, while the team held his hand, but it would still keep Sergeant Blackman’s patrol in the general killing zone; an area best left as soon as possible. If that means leaving a dying enemy behind then so be it as the safety of Blackman’s men took priority. It was vital to get away from the area as soon as possible to regroup elsewhere so that the enemy could then be engaged on Blackman’s own terms.
Fourth. Put the dying terrorist out of his misery quickly so that the patrol could leave the killing zone and continue with meeting the aim: a choice used down the centuries for friend and foe alike with, until now, little or no retribution. How? Three more choices were available to Sergeant Blackman. One. Crack on with the patrol and let the terrorist die in his own time: an inhumane act that would bring opprobrium. Two. Administer an overdose of non-existent morphine: peaceful but with the risk (these days) of a charge of murder. Three. Fire a single 9 mm bullet direct to the heart: instant but with the risk (these days) of a charge of murder.
Sadly, though, it strikes me that Blackman was convicted largely on his own evidence recorded on a ‘helmet cam’ and yet I firmly believe that the ‘patois of an infantry battle’, no matter how obtained, should never be produced as evidence in a trial. Things are said before, during and after a fire fight – for bravado, for effect, for release of tension through black humour, for encouragement – that should be inadmissible as evidence in the calm of a court; particularly so if that conversation can then be used for the very public damnation of the accused by the non-cognoscenti. Blackman’s words might have seemed ‘chilling’ to a Judge Advocate with no infantry battle experience but to those of us who do have such experience they were perfectly normal; indeed, in most respects, rather mild.
There is perhaps a precedent for the exclusion of evidence. In the case of Regina versus Litchfield for manslaughter following the defendant’s ship hitting rocks off the north coast of Cornwall on the 30th May 1995 with the loss of three lives, the High Court Judge, Mr Justice Butterfield, instructed the jury to disregard any decisions taken by Litchfield after his engines had failed, since these were decisions taken ‘in extremis’.
Another thought, relevant to this case, has to be at what stage, in legal terms, does a fatally wounded, possibly armed or booby-trapped terrorist become a prisoner of war? The answer is ‘never’ if you are an Apache pilot but the niceties are not so clear if you are an infantryman on the ground mopping up after an aerial rocket attack while constantly fearing deadly retaliation.