Lawyers for Marine A say he and his family would be at risk from extremists if his name were published.
Three of the UK’s most senior judges are to rule on Thursday over whether the Royal Marine found guilty of murdering a wounded Afghan insurgent should be named in a case that has major implications for the principle of open justice.
Lawyers for the serviceman, who has so far only been identified as Marine A, have argued that the unique and historic nature of his conviction mean that his name ought to be kept secret, claiming that he and his family would be at risk from Islamist terrorists his name published.
Some media organisations, including the Guardian, are arguing that the sergeant – and other members of the patrol who were with him at the time of the killing – ought to be named in the interests of open justice. The prosecution has agreed they should be identified.
At the heart of the identification issue is the common-law principle that those who appear in court should be named. That principle is supported by article 10 of the Human Rights Act which guarantees freedom of expression.
During a court martial appeal court hearing in London last week Clare Kissin, for the media, said the uniqueness of the case – Marine A is the first member of the British armed services to be convicted of murder during an overseas operation in recent history – added weight to the argument that it should be fully reported – which included naming the men involved.
“This is a case of unusual interest and importance,” she said. “We are not trying to make matters worse for British forces. The media is sensitive to the political situation and the complexities of the ongoing war on terror.”
Kissin, for the Guardian, Associated Newspapers, News Group Newspapers, the Independent and BSkyB, also argued at the appeal court that a damning video showing the murder also ought to be released.
This has been resisted by the government, which says it would be used by extremists as a recruiting tool and could put the lives of British troops and civilians at risk. But Kissin argued that it was impossible to tell the whole story of the trial without it.
Barristers for A, two other marines who were cleared of murder and another two who were initially charged but had the case against them discontinued, argue that they ought to remain anonymous because their lives would be at risk if they were named.
A’s barrister, Hugh Tomlinson QC, claimed: “This is a unique case. It is the first conviction of a British serviceperson in a combat context for 60 years. It’s the first in the context of the Islamist terrorist threat.”
Tomlinson accepted that open justice was of “great importance” but he said the attention of terrorists would be “uniquely attracted” to Marine A and his family.
Marine A was convicted of murder last month after a court martial in Wiltshire.
The board hearing the case was repeatedly shown the video of the incident captured on the head camera of another of the marines.
After discharging his pistol into the helpless man’s chest, Marine A told him: “There you are, shuffle off this mortal coil, you cunt. It’s nothing you wouldn’t do to us.” Moments later, he instructed colleagues: “Obviously this doesn’t go anywhere fellas. I’ve just broken the Geneva convention.”
Throughout the legal proceedings Marine A, together with two other servicemen, Marines B and C, who were cleared of murder, were given anonymity after the court ruled they could be targeted by terrorist groups and “lone wolves” if they were named.
But just before the end of the case, the judge advocate general, Jeff Blackett, decided that all the marines who were on the patrol should be identified because he no longer accepted the argument that there was “real and immediate risk” to their lives.
However he gave them the option of taking their case to the court martial appeal court. The lord chief justice, Lord Thomas, and two other judges are handing down their judgment on Thursday morning.
Marine A is due to be sentenced for murder on Friday. He faces life imprisonment in a civilian jail.
See on www.theguardian.com