The Thomas Mair Affair

 

Robert Henderson

Thomas Mair has been convicted of the murder of the Labour MP Jo Cox (Batley and Spen) . His sentence was  a whole life tariff which makes it very unlikely  that he will ever be released.

There is something distinctly odd about this case for the reported facts of the case do not seem to hang comfortably together. That Mair killed Cox is clear  and  his ostensible  motive for committing the murder , namely,  that she was a supporter of the remain side in the EU referendum is established, but precious little is else is satisfactorily explained.

Mair  has no revealed previous history of violence , yet his attack on Cox was both sustained and involved not only the shooting of Cox but  multiple stabbings.  For a supposed first time killer Mair showed surprisingly little panic or squeamishness when confronted with the actuality of attacking someone in such a physically  intimate manner.   Instead , he  was remarkably self-possessed during the attack and afterwards according to media reports, so much so that when a man called Rashid Hussain tried to intervene  during the attack on Cox Mair coolly told him “ Move back, otherwise I’m going to stab you.”  He also reloaded his .22 gun twice, shot Cox three times and stabbed her 15 times.  Such determined and  unflustered behaviour is unusual to say the least  for someone who had never done anything like it before.  About the only thing  amateurish  about the attack was the fact that he did not kill the MP quickly.

After the attack, Mair made no meaningful  attempt to flee – he was arrested a mile away from the murder – and he  did not disguise himself either during or after the attack.  A number of people witnessed his attack As the killing was near Mair’s  home the odds against him not being rapidly identified were vanishingly small.

After being arrested  Mair refused to answer questions put to him by the police including questions about his political  leanings. Again he  appeared very self-possessed.  Photographs showing him in a custody booth  could have been taken of a man waiting quietly in a hospital  before he is  called for an examination.

During the act of killing he was reported to have shouted   “Britain first”, “this is for Britain”, “Britain always comes first” and “keep Britain independent”  and when  he made his first appearance in court he  gave his name as Death to Traitors, freedom for Britain”.  There is some dispute about the exact words but the discovery of  a good deal of  hard right literature  in his home makes such statements plausible. Mair’s behaviour to this point suggested  he   wanted to be caught and to use his trial as a platform to complain about the EU and the support MPs such as Cox gave to it.

At his trial everything changed. When called upon to plead he refused to do so and  pleas  of not guilty to the various charges  were entered on his behalf,  as is usual in English courts.  The refusal to plead could be interpreted as Mair  doing what many politically motivated people do when placed on trial, namely,  attempt to remove legitimacy from the court by refusing to acknowledge it.  However, people who take that course generally  make it crystal clear what they are doing. All that Mair offered was silence until he had been convicted for he did not give evidence in his own defence.  What his attitude or strategy was in behaving in this manner is debatable because he can have had no meaningful expectation that he would be found not guilty. Hence, he would have had no reason to fear cross examination because the fact that he killed Cox could not be reasonably said to be in dispute and prosecuting counsel  would have had little to get hold of or theme to develop. Mair would have been able to have his own barrister lead him through whatever Mair wanted to say without  much fear of the prosecution making him look silly in cross examination.

After conviction  Mair  did try to speak before sentence but was refused leave to do so by the judge Mr Justice Wilkie .  The ground for the refusal  was Mair’s failure to give evidence. This struck me as very rum so   I asked an experienced  lawyer whether such a refusal was sound judicial practice and their  answer was an unequivocal no. The refusal  seem  more than a little rather strange not least because little if any mitigation was presented by his barrister.   Nor as we shall see later  was Mair’s  sanity being brought into his defence.

After sentencing there was one last loose end put into the public arena. The police announced that they were  trying to find the person, if any,  who sold Mair the gun with which he shot Cox.   The gun was legally held by someone other than Mair before it was stolen in August 2015. The police  have had more than four months to do that and it is somewhat surprising that they have made no progress to date. It may even be that the police  have only just started looking because the Daily Telegraph on 23 November 2016  stated that “  A major manhunt was underway on Wednesday night for the person who handed the 53-year-old loner the modified bolt-action rifle, which was stolen almost a year before the murder.”

Mair’s silence

What are we to think about Mair’s failure to give evidence? If  the man  was driven by  his politics his natural course would surely have been to make a statement to police detailing his reasons for killing Cox.  Moreover, he was  distinctly bullish about his motives and politics during the killing and at  his first court appearance. He might have been overwhelmed with what he had done and the reality of the circumstances he found himself in.  But his calm demeanour  after arrest  and during  the trial itself  makes this unlikely and in any case he wanted to speak before sentence.

It is possible although  improbable that Mair  decided  he would  refuse  to acknowledge the legitimacy of the court by failing to either plead or give evidence  until he was convicted and then give whatever message he wanted to put before the public . If so he was thwarted by the judge. However, I can find no media report  which either carried details of a protest in court  by Mair at being denied an opportunity to speak   or of his barrister making representations on his behalf that he should be allowed to speak. It is conceivable that the media collectively decided not to carry details of Mair protesting or his barrister arguing that he should be allowed to speak,  but that would surely  be stretching credulity past breaking point.

The only really plausible  explanations for Mair’s  behaviour  would seem to be that  he  is  either mentally ill or that he was intimidated by the authorities into not giving evidence.

Mair’s history of mental illness

One of the most surprising things about the case  is that no psychiatric evidence was offered in court. This was noteworthy for two reasons. The first was the obvious one that Mair’s behaviour and the nature of the crime itself was such as to make  an assessmentof his state of mind  necessary if justice was to be seen to be done. The second was the fact that Mair had not only received psychiatric treatment in  the past for depression  but on the day before the killing he attempted unsuccessfully  to get help for that condition.

There is plenty of opportunity within the justice system for mental illness to be picked up. The police have powers to order a psychiatric examination of  someone they suspect  has a mental illness.   The question of fitness to plead may be raised before arraignment by the prosecution, defence or Judge.  Requesting psychiatric reports after conviction but before  sentencing is  often done. It is important to note that an accused cannot simply declare himself or herself as fit to plead.

Despite all these opportunities  there was no psychiatric evidence presented to the court. Of course if Mair instructed his lawyers not to bring his mental health issues in court as a defence or mitigation they could not do so if he was considered fit to plead which he was.  However, the court itself could have ordered psychiatric reports before sentencing took place and  apparently  did not do so.

But if Mair instructed  to his lawyers  not to use his medical history in the case that would make it  all the more extraordinary  that he failed to  either give evidence or to make a public protest when he was being  denied an opportunity to speak.

Had his  psychiatric history been used at his trial  it is possible it could have made a significant difference to the sentence Mair received . The charge could have been reduced  to manslaughter  if  Mears  was judged to have diminished  responsibility  or lead to a sentence of something less than a whole life term.

What the British state had to gain from Mair’s silence

The alternative explanation that  state  actors have  frightened Mair into keeping quiet  raises the question what did  they have  to gain?   The British elite are very twitchy about having trials in which those charged with breaches of the totalitarian ideology known as political correctness are unwilling to plead  guilty. Moreover, even those who do  plead not guilty very  rarely rest their defence on the right to free expression seeking instead to blame their behaviour on things such as the side effects of  prescription drugs.  Often those who start off with a not  guilty plea will be gradually worn down by officialdom until they agree to plead guilty.   A first rate example of this is the case of  Emma West who, after complaining on a tram about the level of immigration,  was first held in the UK’s nearest to a maximum security prison for women and  after being given bail was then harassed for  months simply because she would not plead guilty. Eventually worn down by the delay and fearing that her young son might be taken away from her, she pleaded guilty to some lesser charges than those originally laid.

The reason why our politically correct powers-that -be  fear a not guilty plea in such cases is they do not want their willingness to suppress free expression attacked or simply made starkly visible in a public forum or for those in the dock to challenge the politically correct view of the world.  Part of the politically correct narrative is that political correctness does not impinge on free expression. This is self-evidently absurd, but it is an essential  plank in the enforcement of political correctness.   For the politically correct  to say  otherwise would be to undermine political correctness  and show it nakedly for what it is, a totalitarian creed which insists the only acceptable view of anything which political correctness touches is the politically correct one. In  principle this means everything  important in human existence because the  concept of discrimination lays every aspect of life open to intrusion by the ideology.  No totalitarian ideology can survive if it is questioned  and political correctness is more vulnerable to intellectual demolition than most because  it is  series of injunctions  which conflict horribly with human nature .

It could have been this elite fear of having political correctness challenged which prompted the judge to refuse Mair leave to address the court.  Mair’s  case was of course very different from those prosecuted for non-pc speech  because of his undisputed crime of murder, but the threat of someone calling those with power who supported the  UK’s membership  traitors, as Mair  most probably would have done judged by his previous public statements during the killing and his first court appearance,  might have seemed a little too close to home for our politicians in particular to view with equanimity.  Treason is a unique crime. Whether it is on the statute book or not, whether it is formally defined one way or another, everyone knows in their heart  of hearts  what it is,  the most  heartrending of emotional blows, namely, betrayal.

There was also  the possibility of elite fear of what one might call  the Anders Breivik effect. If Mair had spoken in court and given a purely political motive for the killing and justified on the grounds that Cox was committing treason this would  almost certainly this would have  created an ambivalent response amongst the public.  The British experience with Irish terrorism are a good example of the tendency where Irish Republicans would often say after a bombing atrocity “I  don’t approve of their methods but….”   There would have been condemnation of the act of killing of course, but along with that in quite a few  minds there would  be a sense that Mair’s political reason for the attack, that he was killing  a traitor, somehow softened  the purely  criminal sharpness  of the deed. There will also be a hard core of those who  were unambiguously glad to see her dead .  A piece of research carried out by Birmingham City and  Nottingham Trent Universities on tweets about the murder of Cox found that  at least 25,000 out of 50,000 tweets studied celebrated her death.

A  silent or at least a Mair not allowed to speak publicly is a perfect  fit to fill  two roles for the  UK’s politically correct elite’s narrative.  First,  he could be  typified as the  type of person the remain side of the referendum said was the typical leave voter, someone who  was ignorant and potentially  violent;  second he  could be pointed at as a  “far right”  terrorist  to balance  against the many Muslim terrorists.  This has already happened : here are a few example  links  one, two, three .

There is also the possibility that  the security services  or the police knew about Mair and did not take any action because they  hoped  that he might do something which would promote the idea  of that those who wanted to leave the EU are  dangerous extreme rightwingers . It is conceivable  although very improbable , that in some way the security services surreptitiously encouraged Mair to  attack  Cox to feed into the general propaganda of the pro-EU side of the  Brexit referendum that portrayed leavers as racist far right know-nothings.  Much more plausibly  the security services  thought that Mair would not do anything more than engage in a public protest or perhaps a bit of criminal damage and they seriously misjudged the situation.  It  would be very damaging  if that was the case and they had been forced to admit such a thing in the witness box.

What is the chance of the British elite behaving badly. Well, consider the case of the Liberal MP Cyril Smith. Smith admitted to the then leader of the Liberal Party David Steel that when involved with the  Cambridge House boys hostel he had both spanked boys with their pants down and conducted what he euphemistically called medical examinations on the boys . Steel took no action and Smith remained within the Party and an MP.

One thing is certain about this case, we have not heard anything like the whole truth about it. We are being asked to believe that a politically motivated killer of his own volition  steadfastly failed to use his capture and trial to send a political message to the public. It makes no sense.

Postscript:

Some further information about the refusal to allow Mair to make an unsworn statement after conviction but before sentence.
The right to make an unsworn sentence before conviction was abolished in England in 1982 (by section 72 of the Criminal Justice Act. However, the Act gave a convicted defendant the right to speak in mitigation, viz:
“2 Abolition of right of accused to make unsworn statement.
(1)Subject to subsections (2) and (3) below, in any criminal proceedings the accused shall not be entitled to make a statement without being sworn, and accordingly, if he gives evidence, he shall do so [F1(subject to sections 55 and 56 of the Youth Justice and Criminal Evidence Act 1999)] on oath and be liable to cross-examination; but this section shall not affect the right of the accused, if not represented by counsel or a solicitor, to address the court or jury otherwise than on oath on any matter on which, if he were so represented, counsel or a solicitor could address the court or jury on his behalf.
(2)Nothing in subsection (1) above shall prevent the accused making a statement without being sworn—
(a)if it is one which he is required by law to make personally; or
(b)if he makes it by way of mitigation before the court passes sentence upon him.”
Plainly Mair could have been making a plea in mitigation and it would almost certainly have been a plea of mitigation in the sense that he wished to explain his actions which would whatever they were bear on mitigation even if he was to say he thought his action justified because Cox was a traitor for supporting the EU.
The refusal to allow him to speak should have been challenged by his barrister but appears to to have been.
Another oddity of the trial was the reading into evidence, ie, before Mair was convicted, of Stephen Kinnock’s statement about how praisworthy he thought she was. That was simply bizarre because it could have no bearing on Mair”s guilt or innocence. Again Mair’s brief appears to have made no protest.
 

 

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Comments

  • Tom Rogers  On May 7, 2017 at 7:36 am

    (i). I believe Mair asked to make his statement after sentencing and before he was stood down, therefore the sentencing judge was quite within his rights to refuse him. Mair was also represented and so the judge would not have accepted any mitigation other than through his barrister. Of course, in practice judges will give leeway where a represented defendant wishes to say something, but it is at the judge’s discretion whether to allow it.

    (ii). We don’t know for sure how the defence barrister dealt with the admissibility of Kinnock’s letter. I am sure he must have raised an objection. The barrister would not have required instructions from Mair on this point and should have been expected to object to the evidence on his own initiative, as it is an implicit aspect of his role.

    A still more serious question is why the trial judge allowed it. I’ve been ruminating on this, and I think the most likely explanation is that it may have been thought necessary by the Crown to provide the jury with some background to Jo Cox, who she was, and why she was of significance to Mair, and so on, and the judge may have taken the view that, in view of the preponderance of evidence, the letter didn’t prejudice the defence.

    (iii). I highly doubt Mair would have been found unfit to plead. I can say that without even knowing anything about him, just based on what the media have reported about the case. The criteria for fitness to plead are de minimis, and you virtually have to be legally insane to be considered unfit. True, a creative legal and psychiatric defence team could put forward an argument in a case such as Mair’s, but Mair’s reported actions speak of somebody who was mentally fit within the narrow criteria. That said, the case is an illustration of one of the problems with the way the law works in this area. There has been much debate about this in academic circles and there is a view that the assessment criteria should be much broader.

    (iv). Whether he had a psychiatric legal defence is another interesting point. As you rightly say, he could have argued for this and reduced the charge, or at least avoided a whole life tariff. As a layman, my guess would be that he was (is) suffering from paranoid schizophrenia or some sort of affective schizoid disorder. Maybe autism as well. Any of these could have formed the basis of a defence of murder on the grounds of diminished responsibility or a charge down to manslaughter.

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