Seldom can there have been less doubt about the outcome of a case than there was over today’s conviction of Thomas Mair for the murder of the MP Jo Cox.
The prosecution was able to rely upon numerous eye-witnesses, a compelling battery of scientific evidence, CCTV, weapons, and Mr Mair’s own words at the first hearing in the magistrates court when he shouted “death to traitors, freedom for Britain!” To cap it all, the house where he lived contained a bookshelf full of Nazi-related books, topped off by a metal Third Reich eagle.
There may be people wishing to speculate on the political ramifications of the case. I offer just 5 law-related observations.
- How can you defend a man you know is guilty?
This is the classic “dinner party” question with which barristers quickly become familiar. The normal answer is that we do not know that our clients are guilty, we may suspect, but “knowing” is something different. The question is easily answered, some might say evaded, by pointing out that fact, and saying that it is for the Court and not defence counsel to decide guilt.
In this case, however, it is possible that Simon Russell-Flint QC did literally know that his client was guilty. Whilst we cannot know what instructions he was given, it seems quite likely that Mr Mair had admitted it.
Even if – and of course I have absolutely no way of knowing – Mr Mair had told his barrister that he was guilty, Mr Russell-Flint was right not to withdraw from the case, although the rules of ethical advocacy would have greatly restricted what he was able to say. The barristers’ Code of Conduct makes fairly clear what is not permitted:
“… you would be misleading the court and would therefore be in breach of [the code of conduct] if you were to set up a positive case inconsistent with the confession, as for example by:
- – suggesting to prosecution witnesses, calling your client or your witnesses to show;or submitting to the jury,that your client did not commit the crime; or
- – suggesting that someone else had done so; or
- – putting forward an alibi.”
Mr Russell-Flint did none of those things.
He would, no doubt, have attempted to persuade him to plead guilty, or at least he would have pointed out the futility of contesting the charges. Mair now faces an exceptionally lengthy sentence; very likely a “whole-life” tariff. His only real hope of ever enjoying freedom again (and it would have been a slim one) would have been to plead guilty. Clearly his advice was ignored.
His conduct of the trial was a demonstration of the ethical limitations a barrister has when defending a person who has no answer to the charges. He challenged virtually none of the evidence apart from a minor issue about what Mair said to the police when he was arrested. He did not call Mair to give evidence and his very short closing speech amounted to an acceptance that Ms Cox was “brutally murdered,” and no denial that his client was responsible, or even what would have been a patently absurd argument that the prosecution had failed to prove its case:
“You and you alone will determine whether Thomas Mair can return to his quiet and solitary existence or will forever be remembered as the man who assassinated Jo Cox.”
Nevertheless it would have been unthinkable for Mair, if he wanted it, to be denied legal representation. Even in the very worst case there is always a possibility that a competent defence can find something to say which mitigates the crime. And from the wider public perspective, if Mr Mair had been refused representation because of his admission of guilt, that would only serve to encourage the neo-Nazis who even now, absurdly, are claiming that he has been “stitched up” by the “establishment.”
- Why was no medical evidence called on the state of Mair’s mental health?
The prosecution would have had no interest in proving that he was insane, or that his responsibility was diminished as a result of mental health problems.
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.
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.
- 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.
- Why did Prosecution Counsel make a closing speech?
There used to be a convention in the Crown Court that where the defendant called no evidence the prosecution would not make a closing speech. Since the case of R v. C (Mark Anthony)  EWCA Crim 378 – as an aside, if you are going to anonymise the case as “C” why then go on to give his two other names? – this has largely gone. Certainly in cases in which, as with Mr Mair, the prosecution wish to invite the jury to draw an adverse inference from a defendant’s silence, the Court of Appeal’s view is that the argument should come from counsel, not the judge. If the judge raises the issue for the first time there would be a much greater danger of him or her seeming to be partisan in favour of the prosecution.
5. What will his sentence be?
Subject to any last minute psychiatric evidence, he is bound to receive a life sentence: that is mandatory for murder. The only issue is what minimum term the judge will set before he can be considered for release.
Under Criminal Justice Act 2003 Schedule 21 Paragraph 4 (2) (c) the “appropriate starting point” for a murder that is “done for the purpose of advancing a political, religious, racial or ideological cause” is a whole life term.
I find it impossible to imagine that there could be any mitigation that could change that, so he should expect to die in prison.
The prospect of spending the rest of his life in prison must be a terrible thing but this was a terrible crime and there will be very few, outside the neo-Nazi community, that will feel sorry for him.
Jo Cox’s family will have at least the small consolation that justice has been done to her killer.