No, Louise Mensch, Thomas Mair’s judge did not act immorally: No, Secret Barrister, she’s not motivated by malice

I never thought it would happen that Louise Mensch would have occasion to defend my honour, but so it has turned out.

I hadn’t paid her much attention until the last few days. On the whole I rather liked the little I knew, particularly the fact that she had stood up for Professor Tim Hunt after he was infamously accused of sexism in a talk he gave in Korea. Her main opponent in that spat was Connie St Louis, the controversial Director of the MA in Science Journalism at City University, and by relying on facts and evidence Ms Mensch won the argument and rescued Tim Hunt’s reputation from being unfairly traduced by Ms St Louis and her supporters.

Last week I wrote a short blog-post about the trial of Thomas Mair, the man who murdered Jo Cox. It was nothing very special. I noted a few aspects of the trial which struck me as odd: the fact that a statement from the MP Stephen Kinnock had been read to the jury pre-conviction, even though its contents appeared to have nothing to do with establishing Mair’s guilt; and the fact that psychiatric evidence had not featured as part of Mair’s defence. The piece was written before sentence was passed – in truth most of it was written before the jury returned its verdict, so much of a foregone conclusion did Mr Mair’s guilt seem to be. I also suggested that it was likely that the judge would ask for some psychiatric evidence before passing sentence. In fact, as we now know, he passed sentence – life imprisonment with a whole life term – almost immediately, and without making any reference to any mental health issues.

My blog was read by Ms Mensch and she quoted quite a lot of it on her own Heatstreet blog. It is a much more impressive affair than mine, with lots of different stories changing daily, usually illustrated by whizzy pictures and videos. It also has far more readers so it was rather flattering to be quoted at such length.

Much of what Ms Mensch wrote about the case was quite right, and I agree with it. She quoted my blog perfectly fairly, and even included links to it that quite a few readers followed. Her general point is a good one: that even, and perhaps especially, in apparently clear-cut cases judges need to be vigilant to ensure a fair trial. Politically charged cases like this one demand especially cool heads (although the same could be said for many other murder cases, particularly those involving children). Defendants with mental health difficulties demand special vigilance. She also made a number of points that I did not make about the pre-trial publicity being very unfair on Mair. In particular, she felt that the recall of the House of Commons for a tribute to Ms Cox was prejudicial to Mr Mair, and again on this she may have had a point.

She also made the fair point that Jo Cox herself would have expected Mr Mair to have received a scrupulously fair trial.

The difficulty is that she then leapt, using quotes from my blog as stepping stones, from the cautious observation that it could have been unfair, to the much more tendentious conclusion that Mair’s trial was in fact unfair. Early on in her article she accepts that this unfairness might just be “on the surface,” but by half-way through she has swept away all such qualifications and uncertainties. The trial was “unfair” and the judge – at least by allowing Stephen Kinnock’s statement to be read – did something “morally indefensible.”

I confess I still haven’t any real idea why Mr Kinnock’s statement was read. It seems overwhelmingly likely that for some reason both prosecution and defence agreed that it should be. I cannot see any principle in the law of evidence that would permit the reading of such a statement at that stage of a trial without the agreement of the defence. (If my assumption is wrong and the judge over-ruled defence objections that would be a rather different matter).

If both prosecution and defence agree that a particular statement should be read to the jury the judge does not, of course, have to agree. Strictly speaking he should only allow relevant evidence to be led. Evidence about the virtuous life of the deceased is usually considered irrelevant to proving guilt. On the other hand, in an adversarial system it is a bold, and in practice generally rather tiresome, judge who excludes evidence that both prosecution and defence want admitted. But whether the judge was right or wrong in law, it was hardly “morally indefensible” to agree to an arrangement that seems to have suited both prosecution and defence alike. Still less can it be said to have made the trial unfair.

As far as the lack of psychiatric evidence is concerned again Ms Mensch makes a huge leap from the fact that the judge said nothing about Mr Mair’s mental health in his sentencing remarks, to the assumption that his failure to do so tarnished the fairness of the trial. My blog – written before the sentence was passed – did indeed say that “it is likely that before he is sentenced the judge will want to give some consideration to his mental health.” It might have been better had the judge said something in open court about any psychiatric reports that he had read, but it is wrong to assume from that fact that he ignored it altogether. The stark reality of the situation was that unless he was suffering from very serious mental illness, probably involving psychosis of some kind, very few mental health problems would have made any difference to the likely sentence anyway.

So Ms Mensch raised some interesting points, but she then went on, with the minimum of evidence, to conclude that the trial was unfair and accused the judge of making at least one immoral decision. In fact, in an explanatory tweet, she went even further saying that the judge had acted “wrongly and immorally”.

I am not too concerned about her criticisms of Mr Justice Wilkie, unwarranted though they are. I’m sure he can take them. There is, however, a more insidious danger in leaping to judgement in this way: if the impression gets around that Mr Mair’s trial was a travesty, or (to use Ms Mensch’s expression) a “miscarriage of justice,” that will only serve to heighten the danger that the defendant – who deserves to be forgotten, or at least remembered only as a cruel murderer – will come to be seen as a political martyr, stitched up in an establishment show-trial.

This point was made with great force on the Secret Barrister blog yesterday:

“… in this toxic, febrile climate, claims that Neo-Nazis are not given fair trials can have serious consequences. These claims feed into the narrative that democratic institutions are broken, and foster the paranoia of those susceptible to taking the, to them, only rational action that one can take when democracy breaks down – violence.”

SB – whose identity and even whose sex I don’t know, but I think for various reasons he’s probably male – went on to criticise:

“professional antagonists seeking their latest hour in the sun, ignorant of the facts and oblivious or, worse, maliciously indifferent, to the succour they give to extremist tropes which, taken to their logical conclusions, could result in violence on the streets.”

This doubtless referred to Ms Mensch. Secret Barrister has gained a well-justified reputation for writing powerful, and well-informed polemics and it may be that like many other great polemicists, perhaps even a bit like Ms Mensch herself, he allowed himself to get carried away by the force of his own rhetoric. I wouldn’t have included the phrase “maliciously indifferent” in my criticism of Ms Mensch. I agree that accuracy in this area is very important, and I agree that she made a bad mistake but that doesn’t mean that she did so maliciously. On the contrary, I am sure that she is sincere in her concern that everyone is entitled to a fair trial.

Anyway, Ms Mensch struck back, accusing the Secret Barrister of “lying about another lawyer’s comments to start your rant. Time for a fisk.”

The whole spat is now getting rather undignified.

I’ve no idea what she means by the Secret Barrister “lying about another lawyer’s comments.” The only “lawyer’s comments” that seem to have been made are mine, and SB has not lied about them. In fact both the Secret Barrister and Ms Mensch herself, though increasingly rude about each other, have so far been very polite about me, although that may now change. So thanks for your concern Louise, but you needn’t worry. If anyone were to accuse me of lying I would be angry but nobody has; as far as I’m concerned my honour is unsullied.

Nor do I quite know what she means by “time for a fisk.” It sounds very unfriendly, especially if she’s using the word in the sense it is sometimes understood to mean “the selection of evidence solely in order to bolster preconceptions and prejudices,” although it’s more likely she simply means to write a trenchant refutation of the Secret Barrister’s piece. As it happens she was distracted yesterday by Maidenhead Remain-supporting resident Louise Trethowan who wrote a splendid account of a 15 minute visit to her MP Theresa May, thereby earning herself the Menschfisk that had been promised to the Secret Barrister.

I don’t know if SB’s fisking is still under construction, perhaps with the aim of characterising him as the criminal bar’s answer to Connie St Louis, but nothing would do Ms Mensch as much credit as to delete any drafts of the fisking and to concede that she went too far in her criticism of the trial judge. For his part the Secret Barrister might wonder whether he went too far in hinting that she was activated by malice.

I realise that when two people are having a bad-tempered argument there is nothing more irritating than a goody-goody like me telling them both to calm down. It almost invites both of them to stop berating each other and punch me on the nose in frustration. But there it is; I seem to be involved anyway, and for what it’s worth that’s my advice. You can fisk me now if you must.