Michael St George argues that, even in sentencing, the State still owes Marine A a duty of care
There are no excuses for Marine A’s crime. There are explanations in abundance – from the relentless accumulation of stress induced by more or less continual enemy contact fraying thought processes so much that it pushes aside the lessons ingrained from normal training, to the naturalness of human inclination not to give as much respect to an enemy responsible for killing your colleagues and displaying their body parts in the trees – but explanations are not, and cannot be, excuses. Murder is murder, even of an enemy combatant disabled on the battlefield, and Marine A must face due punishment.
But think carefully about the last-but-one word of the previous paragraph. Due punishment, yes – but not undue punishment. And the circumstances surrounding Marine A’s trial and verdict contain a very real risk of undue, excessive, punishment being exacted, and for what are not necessarily reasons concerned exclusively with justice.
The demands, not for a due sentence, but for harsh, exemplary punishment, have been quick in coming. Predictably, most come from the left-liberal internationalists, to whom nation-state military capability is anathema, and for whom it’s practically an article of faith that, while Britain’s enemies must be accorded almost unlimited human rights, her soldiers in combat warant almost none.
If you hold views like this, then demanding an unduly harsh sentence for Marine A, not just to punish him, but to go further make an example of him, perhaps has more do to with advertising your own impeccably humanitarian credentials, expressing your political opposition to the mission on which his government sent him, and assuaging your left-liberal conscience.
Probably the most outstanding British commander at battalion level in Iraq, Col Tim Collins, put this rather well, when he talked about “the salons of Hampstead or Islington or Westminster where the Geneva Convention can be safely debated over ethically-sourced coffee“, and about “the PC brigade, to whom the very existence of the British Army seems to be an affront“. The BBC, of course, was noticeably trying hard to smear the entire UK military with the Marine A murder: the same BBC, that is, which was at pains to stress that the overtly Islamism-inspired butchering of Drummer Lee Rigby in Woolwich was “nothing to do with Islam”.
As regards the formal sentence, the Military Court-Martial is bound to impose one of life imprisonment. The first area of dispute, though, will come in the minimum sentence tariff to be imposed before Marine A can be considered eligible for parole, or early release. The sentencing guidelines are set out by the CPS here: but how applicable they are to the particular circumstances may be questionable. For example, murder involving a firearm attracts a longer tariff – but is it reasonable to apply equivalence between, say, a civilian criminal who kills with a firearm in the course of a robbery, with a soldier on an active battlefield?
The vast majority of terms served under UK life sentences appear to be between 10-20 years, but with a very substantial minority under 10 (source: Factcheck)
Equally. there have been some egregious cases of leniency in sentencing. We can all think of one, possibly more. On a purely personal reflection, I find it hard to reconcile the demands for unduly harsh treatment of Marine A with the knowledge that the mother of Baby P, killed by abusive adults in an almost casual litany of cruelty, is already released and walking free, despite havinbg been given an indetermineate sentence only in 2009. Is a temporary loss of self-control towards a callous enemy on a “hot” battlefield somehow worse than complicity in the deliberate prolonged cruelty visited on a defenceless child?
For these kinds of reasons, I’m personally inclined to feel that a tariff of about 10 years is probably about right, with the possibility of release after 7 or 8 years. Marine A deserves no less – but crucially also no more – harsh sentence than any other convicted of the same crime. But this is where more potential injustice, especially if a politically-vindictive punishment extending far beyond the official sentence isimposed, starts to appear.
The main concern must surely be the question of continuing anonymity. The same agenda-driven left-wing wolves in the political and media classes alreaqdy pawing at the door marked “harshest punishment possible”, will, I suspect, soon be chipping away at any anonymity Marine A has left, with scant regard for the immediate, or wider, consequences. That no legal application has yet been made to lift anonymity is surprising.
Marine A is currently in custody at the British Army’s Military Corrective Training Centre in Colchester. MCTC is run, obviously, by HM Forces, but it’s subject to all the regulations and standards of the civilian prison estate, and actually attracts high quality ratings from HM Inspectorate of Prisons for its training and rehabilitation programmes.
Its major drawback, however, from the viewpoint of the Marine A case, is that MCTC only holds offenders in custody for sentences of 2 years or less. Sentences longer than that are served in civilian prisons. MCTC also separates servicemen (there are almost no women in military custody) who will be returned to their unit on completion of sentence, from those who will be dishonourably discharged.
It seems beyond doubt that Marine A’s sentence tariff will be longer than 2 years, and highly likely that he will also be dishonourably discharged on its completion. Unless other arrangements are made, therefore, he’s almost certain to be transferred to a civilian prison. And if he still benefits from anonymity by the time of that transfer, its likely duration is arguably measurable in mere hours, never mind days, weeks or longer.
But Marine A was sent by his employer, the British government, to perform his job in combat in Afghanistan, fighting a Taliban prosecuting Islamist Jihad. And, incidentally, make no mistake, Islamist Jihad is what’s being prosecuted – maiming or even executing a village headman for allowing girls to receive education isn’t “resisting foreign occupation”, or whatever comforting verbal contortion you prefer to use, but imposing the harshest form of Shar’ia on the indigenous population by force. Whatever we might think of the rights or wrongs of British foreign policy towards Afghanistan, Marine A was there at the instruction of the British government, his employer.
That same government also has a serious and growing problem of Islamist recruitment, radicalisation and violence in UK prisons. There are accounts of forced conversions to Islam under threat of violence at the hands of the already-radicalised: up to 60 known hard-line Islamist extremists are currently thought to be incarcerated in UK gaols. Once Marine A’s identity became known, there’s no doubt he would be targeted, and, unless kept in solitary confinement, probably successfully. The consequence of this would be to convert a term-specified life sentence into something more, or, in effect, a death sentence.
Marine A’s identification would not mean a loss of anonymity only for him. It would mean a loss of anonymity for his family and relatives too, exposing them to risk of attack also. The extent of penetration into the UK Muslim community achieved by hard-line Islamist and Jihadi organisations like the Muslim Brotherhood, Hizb-ut-Tahrir, and Al-Muhajiroun is well-documented, and was even confirmed by the Head of the Security Service recently at the House of Commons Select Committee hearings. Undoubtedly, Marine A’s family and relatives would become targets for terrorist vengeance. Would the state be prepared to protect them? Or does the harshest-possible-retribution school of thought’s determination to exact exemplary punishment dictate that they must be punished too?
If Marine A is to be dishonourably discharged at the end of his sentence, then while he is serving it, the government as his employer has a duty of care towards him, over and above that which it has anyway to any inmate of the prison system, government employee or not. It has a duty to ensure also that the sentence served by Marine A is that which its military authorities impose and only that – not a greater one caused by any neglect of its duty of care.
Give the very real risks in the particular circumstances of Marine A’s case, there are overwhelming grounds for the government and military authorities to protect his anonymity, and maintain that protection for the duration of his sentence. Possibly the easiest method would be to suspend normal MCTC Colchester protocol, so that his sentence is served there, and not in a civilian prison. But if a greater injustice than has already been perpetrated is to be prevented, then a way must be found.