On 15 September 2011 a Royal Marine patrol in Helmand, Afghanistan, encountered a severely wounded insurgent. One of the Marines shot him and he died, events which were recorded on video by one of the Marines, the discovery of which led to an investigation and to five members of the patrol being charged with murder.
The Marines were brought before a Court Martial, presided over by the Judge Advocate General (“the Judge”). Proceedings against Marines D and E were discontinued. The prosecution’s case was that Marine A shot the deceased Afghan and that Marines B and C were secondary parties to the murder. Marine A’s shooting of the Afghan was shown on the video recording, which also recorded comments made about him by the Marines.
The trial was before the Judge and a Board which found Marine A guilty of murder and acquitted Marines B and C. The applications for leave to appeal to the Court Martial Appeal Court related solely to the prohibition of the identification of the Marines and the making of the video recording available to the media.
An interim order was made after the decision to charge the Marines, prohibiting their identification on the grounds of a real and immediate risk to their lives. It was continued by the Judge, who ordered an assessment by the Joint Terrorist Analysis Centre. The Judge heard evidence in private from a counter-terrorism expert and received an assessment from the JTAC which assessed the threat as moderate.
Concluding that he was satisfied that there would be a real and immediate risk to the lives of the Defendants if they were to be identified by name, he made an order preserving their anonymity. A further order to the same effect was made on the opening day of the trial under s11 of the Contempt of Court Act 1981.
The video of events was played at the trial, but the Judge ordered that it should not be made available to the media. He ordered that stills from the video should be released only in part.
After the conclusion of the evidence and summing up, the Judge heard further evidence and argument on the identification of the Marines. He ordered that any of Marines A, B and C who were convicted would be identified by name, and that, given that the names of other members of the patrol had been made public, the same should apply to all of the five Marines.
Following the conviction and acquittals, the media parties sought leave to appeal against the rulings denying them access to the video and stills, Marines A, B and C sought leave to appeal against the Order lifting the prohibition of their identification, and Marines D and E sought leave to appeal on the basis that they had not been heard.
The Court Martial Appeal Court determined that it had no jurisdiction to hear the application by the Marines for leave to appeal against the lifting of the Order prohibiting identification and that this would be considered as an application for judicial review by the same court sitting as the Divisional Court of the QBD. It would consider the application on the video and stills.