Thursday 24 November 2016

R v Thomas Mair

Thomas Mair stood trial at the Central Criminal Court (Mr Justice Wilkie and a jury) for the murder of Member of Parliament Jo Cox and for a number of other offences.  He was convicted and the judge's sentencing remarks have been published - HERE.  The judge concluded that the murder was of such a high level of seriousness that it could only properly be marked by a whole life sentence though the judge noted the possibility of release by the executive "on humanitarian grounds" to allow him, as the judge put it, "to die at home."

See also the Crown Prosecution Service statement.

A few points about the case stand out. 
First, the brief Magistrates' Court appearance by which cases are sent for trial to the Crown Court was held at Westminster Magistrates' Court before the Deputy Chief Magistrate rather than at a Magistrates' Court location near to the place where the offence was committed.  This is possible under provisions relating to terrorist cases in the Criminal Procedure Directions - see Annex 4 at page 155.

It seems clear that Mair's actions fell within the definition of terrorism in section 1 of the Terrorism Act 2000 in that, when he attacked Mrs Cox, he was seeking to advance a "political, religious, racial or ideological cause."   Mair's own words in the Magistrates' Court were "death to traitors, freedom for Britain!"  In the event, specific terrorism charges were not brought against him because he could obviously be dealt with adequately under ordinary criminal law.

No question about Fitness to Plead was raised - (See Note 1 below).

Mair did not enter a plea and the judge directed that Not Guilty pleas be entered on his behalf.  It is of historical interest that this was not always permissible in English law. [See Note 2 below].

The prosecution ran its case.  One interesting fact was that a statement by Stephen Kinnock MP was read out at the end of the prosecution case. It is not clear why this was done unless (and I don't know) the defence agreed to it.

Mair chose not to give evidence.  A "right to silence" still exists but it is now subject to the Criminal Justice and Public Order Act 1994 section 35 which permits the jury to draw such inferences as appear proper from silence without good cause.  [See Note 3 below]

No argument was put forward that Mair was suffering either insanity or diminished responsibility.  The reasons for this are not clear but it may be that a realistic assessment concluded that neither of those defences would have succeeded.   In 2011, I posted about the defence of insanity.  Diminished responsibility is a partial statutory defence to a murder charge and could reduce the conviction to one of manslaughter and thus avoid the mandatory life sentence applicable to murder. [See Note 4 below].

At the end of the trial it seems that Mair wished to say something to the court but this was not permitted and he had no right to do so since he was represented by counsel.

The judge proceeded quickly to sentencing and imposed the mandatory life imprisonment sentence with a whole life order.  Whole life terms were considered by the European Court of Human Rights (Vinter and others v UK) and in 2014 the Court of Appeal (Criminal Division) upheld whole life terms for exceptionally serious murder - Judgment.

Although not mentioned during the trial, Mair had collected Nazi memorabilia and far-right literature - The Guardian 17th June.  According to this report, had purchased such literature since the 1990s.

The Statement by Brendan Cox will long stand as a testament to human decency.

For a further look at the case see Barrister Blogger - Some footnotes to the conviction of Thomas Mair.


Note 1. Where such issues are raised in the Crown Court the question of fitness to plead is decided by the judge: Criminal Procedure (Insanity) Act 1964 as amended by the Criminal Procedure (Insanity and Fitness to Plead) Act 1991 and the Domestic Violence, Crime and Victims Act 2004.  The judge must have reports from two or more registered medical practitioners at least one whom must be approved under the Mental Health Act 1983 s.12.  If it is decided that the defendant is unfit to plead then the court moves to the so-called "s4A hearing" to determine whether the defendant did the act or made the omission constituting the actus reus of the offence charged against him.  If there is a finding that the defendant did the act then certain disposals are possible - e.g. a Hospital Order.

Note 2. Until 1772, if a defendant refused to plead guilty or not guilty, his trial was delayed from taking place, and he was subjected to peine forte et dure (pressing) until he either died or entered a plea. This was changed to allow the judge to enter a plea of not guilty if the defendant refused to plead. A notable example of an accused person being pressed was St Margaret Clitherow.

Note 3. CJPOA 1994 Section 35(2)-(4):

"(2)  Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself in the case of proceedings on indictment with a jury , in the presence of the jury that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question.

(3)  Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.

(4)  This section does not render the accused compellable to give evidence on his own behalf, and he shall accordingly not be guilty of contempt of court by reason of a failure to do so.

Note 4. Diminished responsibility is provided for by the Homicide Act 1957 section 2 (as amended by the Coroners and Justice Act 2009 section 52).  The section requires that the defendant was suffering from an abnormality of mental functioning which - (a) arose from a recognised medical condition, (b) substantially impaired D's ability to do one or more of the things mentioned in subsection (1A), and (c) provides an explanation for D's acts and omissions in doing or being a party to the killing. Subsection 1A states that "Those things are - (a) to understand the nature of D's conduct; (b) to form a rational judgment; (c) to exercise self-control.

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