Jo Cox’s murderer, Thomas Mair, has been convicted in a court of law. We can now say that he was a terrorist; and that he murdered this brave wife and mother for political reasons. The legal definition of ‘terrorism’ is violence undertaken to achieve a political end.
But some people and journalists who support Remain have used the result of the trial to tell me that I should disavow tweets I made about Mair and Cox during the Referendum. They have also erroneously said that I recently deleted (presumably because of the verdict) tweets I made about Mair and Cox.
Let’s address the first accusation first. I tweet a lot, and use a tweet deletion tool periodically that wipes tweets from a given period or by a given keyword eg: ‘Labour’ “Corbyn” “Tories”. So no, no tweets about Mair and Cox were deleted other than as part of an auto-delete program.
My arguments about Thomas Mair and his trial still stand today.
How can that be? Mair was convicted after being found to be fit to stand trial; he was evaluated psychologically first. That order – from the judge – came after Mair gave his name as ‘death to traitors, freedom for Britain’. Clearly the judge thought it warranted.
The evaluation did not find Mr. Mair’s mental illness as being so advanced that he could evade criminal responsibility. That is literally all we know about it. There is, however, strong evidence that Mair was mentally ill. He was being treated for it, he asked for help the day before he went to kill Jo Cox; he had in the past commented on mental health, even advocated for it.
In fact, based on an article by Matthew Scott in his barrister blog, I would argue that parts of Thomas Mair’s trial seem, at least on the surface, to be unfair, based on his mental health issues, and others, I would argue, raise the question of a miscarriage of justice – at least in so far as it would seem the accused did not receive a fair trial.
Firstly, as the piece points out, Stephen Kinnock was allowed to read an impact statement about Jo Cox before Mr. Mair was convicted. This seems wrong and prejudicial. The article certainly at the least implies that it ought not to have happened:
- Why were the jury read a statement from Stephen Kinnock?
Mr Kinnock’s statement seems to have had nothing to do with proving the guilt of Mr Mair. It was a heartfelt tribute to a friend and political colleague.
I have no idea why it was admitted into evidence. Such letters are often read once someone has been convicted, but it is hard to see the relevance while Mair’s guilt was still not legally established. Perhaps, for some reason, the defence agreed to this unusual course being adopted.
Secondly, there was no psychiatric evidence or medical evidence argued in mitigation.
Let us remember that Thomas Mair was subject to psychiatric evaluation because he said that his name was ‘Death to Traitors, Freedom for Britain.’. In the court, he refused to speak at all except to confirm his name. He would not enter a plea, and the judge had to enter one for him. The defence at that time also told the judge they would not advance a psychiatric defence. From Reuters:
He remained silent when asked if he was guilty or not guilty to the murder, as he did when the other charges were read out to him.
“He appears to be mute therefore I will enter a plea of not guilty,” said Judge Alan Wilkie.
His lawyer told the court at another hearing in September that Mair would not present a defence case based on medical evidence. That could involve arguments such as, for example, that he had diminished responsibility due to a medical condition.
Matthew Scott asks the pertinent question:
Why then did the defence not call any such evidence? Insanity or, more realistically, manslaughter on the grounds of diminished responsibility, provided the only remotely plausible escape route from a life sentence. So why did the jury not hear from any psychiatrist? There are quite a number of explanations: perhaps Mair had refused to co-operate with the preparation of any such report. Perhaps he had co-operated but the psychiatrists had agreed that he was entirely sane and not suffering from any relevant mental health problems.
While all things are possible, I would suggest the second option is unlikely. Co-operation with such a report would indicate a desire to argue mitigation on mental health grounds. If the first report found Mair responsible, there might have been an appeal for another report.
More worryingly, Mr. Scott’s article goes on to assume that mental health will be taken into account in sentencing:
Even though the defence did not run any form of “psychiatric” defence, it is likely that before he is sentenced the judge will want to give some consideration to his mental health.
But it was not. In point of fact, the judge’s short remarks make no reference at all to any mental health diagnoses, below the level required to argue competence to stand trial.
Why then did the accused’s barrister not raise any objections to Mr. Kinnock’s testimony, nor ask for mitigation based on mental health issues? Matthew Scott skillfully lays out how Mair’s barrister Mr. Russell-Flint did what he could for his client within the code of conduct, if his client had admitted the murder to him. But there is surely a further explanation. If Mair was found to have the competence to stand trial, and he was, he could have given his barrister instructions, and ignored his barrister’s advice, and his lawyer would have had to go along with his client’s wishes, as he could not call for his client’s decision-making powers to be removed when he had just been declared to be sane.
There is, however, an absolute gulf between sanity for the purposes of criminal responsibility and mental illness. You can be both sane, and suffer from extreme mental illness. Only at a certain level of mental illness do you lose responsibility.
It was the judge in the trial, then, and not the court-appointed lawyer, who had the job of guarding Mr. Mair’s rights. And he appears not to have done so. Both the trial and the commentary in its aftermath concentrated on the unarguable, unargued virtues of the brave MP, wife and mother, Jo Cox MP. It is one thing for a press to do that, even other politicians. But it is not morally right for judges to do it. Before he was convicted, the trial judge allowed the jury to hear from Stephen Kinnock about Jo Cox’s good character. That is wrong. It is morally indefensible. Thomas Mair was mentally ill but competent and the judge, I believe, played to the gallery by making the trial what it never ought to have been – a comparator of the characters of heroic Jo Cox and racist Thomas Mair.
Before the trial I was tweeting about the hugely prejudicial leaks coming out of the police to the newspapers; and about tweeters online falsely tweeting photographs of a man who was not Thomas Mair who had been involved with racist groups. It would appear that I was correct in my surmise. The man that the left was calling “Thomas Mair” who appeared with Britain First in Dewsbury was not the same person. I was quite correct in what I reported at that time and am proud that the work I did on this matter has been confirmed. Tell Mama UK, the anti-Islamophobic, anti-racist organisation, reported:
Parts of the Left did attempt to provide a ‘gotcha’ moment to the media. But it would fall flat. Nor did it stop a litany of social media posts and blogs from presenting ‘evidence’ of Mair’s overt fascist beliefs. A ‘smoking gun’ had been found, they claimed. Mair was no ‘timid gardener,’ but a neo-Nazi hidden in plain sight. One photo attributed to Mair had depicted a man performing a Nazi salute. His arms covered in far-right tattoos, wearing a Blood & Honour shirt. Yet, the person in question was not Thomas Mair. Photos of Mair’s arrest revealed a man with no tattoos on either arm. Nor did the man share the same mole on his left cheek. Despite such facts, Facebook posts and tweets with this false informed gained thousands of shares.
A second photo claimed to prove Mair ‘links’ to the far-right Britain First party and street defence movement. This evidence was based on a single photo from their activities in Dewsbury in 2015. One source claimed that the black baseball cap was the same worn by Mair on the day of the murder. But again, the poor quality of the photo made verification impossible. The man alleged to be Mair in this photo, however, appears to wear a navy-blue coloured cap. On the day of the murder, CCTV footage of Mair showed him in a white baseball cap. Others described him wearing either a black or dark cream baseball cap. Once again, despite the uncertainties of the evidence, this second piece of ‘evidence’ gained hundreds of online shares.
All of this, as reported by me when politically unpopular to do so, was prejudicial to Thomas Mair’s rights. So was the abuse of his rights by the State when Parliament was recalled over the death of Cox. National newspapers again and again described the killing as “murder”. This prejudiced the trial of Mair.
Parliament to be recalled on Monday in mark of respect to murdered MP Jo Cox
The fact that Mair has now been convicted of murder does not change this fact one iota. The fact that the law has now declared that Cox’s killing was murder, because Mair has been convicted, in no way alters the fact that to declare her killing “murder” in advance of any mental health issues being heard at trial prejudiced Thomas Mair’s trial and his rights. So we now have Parliament, the national press, and thousands and thousands of social media users prejudicing the trial of a mentally ill man.
The courts issued no warnings to the press on behalf of Thomas Mair, as they have done in other cases. The judge allowed a friend of Jo Cox to sing her praises to the jury in advance of his conviction. I have little doubt that this was bad law, a poor judge, and a bad trial.
And my belief here has no relation whatsoever to the esteem in which I hold Jo Cox, who did her duty, who was so brave and so British. Because the law and the rights of the accused are easy to argue over when there is a more sympathetic defendant and a less sympathetic victim. When you have a competent, but deeply troubled, deeply mentally ill man who is a racist, and you have a beloved, brave MP who stands up for the weakest in her society, it’s a lot less convenient to be the person saying: the accused has rights and those rights were violated.
But I do say so. And as somebody who has spent the last six months fruitlessly fighting Donald Trump’s ascent to power, and battling Russia and their alt-right Nazi trolls, I have no doubt in my mind that it is the right thing to do. I knew that Thomas Mair was not the person in those photographs. I knew and still know he was mentally ill. That does not preclude either competence or guilt. I do not argue now – and did not argue before – that Thomas Mair was too mentally ill to be competent. But his mental illness should have been a factor for this judge; and his trial was hopelessly prejudiced by the media and social media before it began, and by the judge during its proceedings when he allowed Kinnock’s statement to the jury. I know that Jo Cox spent her life standing up to racism and the Nazi beliefs of Mair and other terrorists like him. From what I read of her, she would have been zealous too for an unprejudiced trial and the rights of the mentally ill to have that taken into consideration.
Thomas Mair’s unfair trial is not OK because his victim was a wonderful brave woman, a wife, mother, friend, and Member of Parliament. Nor is saying so an attack on Jo Cox’s memory, nor is it an apologia for Mair or for terrorism. There is every possibility that a completely fair and unprejudiced trial, without Kinnock’s statement being read, without it being called ‘Murder’ in the headlines in advance, without thousands of fake social media photos of some other Nazi, would have not only convicted Mair but, after due consideration of the mental illness the man did in fact have – have come to the same result and given Mair exactly the same sentence.
That outcome is even probable. And yet none of this changes the fact that Thomas Mair did not receive a fair trial. That can never diminish the memory of his heroic victim. Her character stands apart from Mair’s in every way. But it does diminish our great country, and it does diminish our justice system. And reporters perform a public duty when they point out violations of the rights of the accused, even if those accused are Nazis, and even if they are terrorists. Because a concern for justice is one thing that separates us from racists and terrorists. And that does not put me on the ‘side’ of Thomas Mair. It puts me in the same corner as the values to which Jo Cox MP dedicated her life.