Will Marine “A” keep his anonymity? James Michael
18 November 2013
Five Royal Marines have lodged a challenge against a ruling that they can be named following the conviction of one of them for the murder of an injured insurgent in Afghanistan.
Identification of ‘Marine A’ and two other Marines was prohibited by order of the court-martial which convicted Marine A of murder. At the time of the trial this order was explained in the press as necessary to protect the three defendants from physical attacks. On 8 November 2013, Judge Advocate General Jeff Blackett ruled that the names of the defendants and those of Marines D and E, should be identified publicly. The order was not lifted after Marine A’s conviction, and it is now reported that he will oppose any lifting of the order to protect the human right to life of him and his family. A hearing before the Court Martial Appeal Court in London is expected to be held next week. Will he succeed?
Under Strasbourg case-law the obligation on the state to protect individuals from others was confirmed by the Court in Osman v UK. In that case the applicants complained that their husband and father had been killed by the teacher of his son. The police had been informed of the ‘attachment’ which the teacher had formed towards his pupil, and of the many encounters between the teacher and the Osman family. The family argued that they should have been protected by the police. The Court found that the clues from the teacher’s behaviour did not indicate that he would make an attempt on the life of a member of the Osman family, and that even if the authorities had been properly informed the risk of death was not sufficiently real or immediate to justify police protection. It therefore found no violation of the Article 2 right to life.
The case established the three criteria for a state’s duty to protect life. Was the victim threatened in a real and immediate way? Did the authorities know this, or should they have known it? Did they take reasonable measures to counter the risk? A state will be held responsible only if the answer to all three questions is yes. In a series of Turkish cases the Court found the state was responsible, but that was because persons had been killed by unidentified individuals with the connivance of the security forces.
The British authorities would know if there was any threat to the life of Marine A or his family. The question would be whether continued anonymity after conviction for murder for which the Marine is in prison would be a reasonable measure in addition to other measures to protect him and his family.
The British government may not be under a human rights obligation to conceal the identity of Marine A in order to protect his life and that of his family. But if the government chooses to continue to enforce his anonymity that would almost certainly be in accordance with the European Convention on Human Rights. Several European countries have laws or codes for journalistic practice that generally prohibit the identification of defendants in criminal cases, sometimes even after conviction. In the case of Springer v Germany the newspaper identified a man who was arrested and later convicted for possession of cocaine. The paper was fined under the German law prohibiting such identification in the interests of protecting personality rights. Springer argued successfully before the European Court of Human Rights that the conviction violated the right to receive and impart information under Article 10 because the man identified was a television actor, who had sought favourable publicity and who had starred as a police officer in a long-running series.
Marine A was not a public figure before the trial. If his anonymity is continued, anyone who is penalised for publicly identifying him would be unlikely to succeed in arguing that the penalty violates the right to receive and impart information under Article 10 or under the equivalent provision of the Human Rights Act.
I have two interests to declare. The first is that I was once a Marine myself, although of the US rather than Royal variety. The second is that I will be discussing subjects such as anonymity in court in my public lecture at the Institute of Advanced Legal Studies at 6.00 pm on Monday 25 November.
James Michael is Senior Research Fellow at the Institute of Advanced Legal Studies
If Osman v UK establishes that “A state will be held responsible only if the answer to all three questions is yes”, the third question set out in para 3 of this post should read: “Did they fail to take reasonable measures to counter the risk?”
But surely as justice was dispensed, that justice is seen to have been done, therefore surely Marine A should fare the same as every other convicted criminal in the land? Isn’t public stigma and derision part of the punishment process that every convict must face?
More and more selective and bargaining justice is creeping into our system and I do feel the state has to assert itself here, is it likely he is going to be attacked years down the line when probably the whole affair would be forgotten?
I think that a problem with the ‘tests’ you have described is that it seems necessary for there to have been some specific threat to the individual (or his family) or, at the least, some clear evidence to show that a danger exists to the safety of the particular individual (or his family). A commonsense / practical approach would suggest that there is a strong likelihood of an attack on the individual (or his family) if he is named. This view can be borne out by the very argument put forward on behalf of the government in relation of keeping out of the public domain the full recording of the actions of the Marines. In these circumstances, Marine A should remain anonymous so that his family receive the protection which may, sadly, prove to be necessary in the present day climate.
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