Louise Mensch’s claims that Thomas Mair had an unfair trial are unsupported and wildly dangerous

There’s something particularly undignified about a spiralling Twitter spat. The cumulative ‘quote tweeting’ and punctuated “replies” designed to alert innocent passers by to your often solipsistic, and usually entirely pointless, tit for tat exchanges with someone you’ve never met and have no desire to know.  I am guilty of indulging in such indignity this afternoon, after taking umbrage at something said by erstwhile MP and author Louise Mensch, and ending up in the digital equivalent of one of those awful blazing rows you see pissed up couples having outside kebab shops to the evident embarrassment of passers by.

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On this, I also owe an apology to the doyen of criminal legal bloggers, Matthew Scott, whose name has been unwittingly dragged into the debate. If I conducted myself online with his restraint and temperament, I, and the timelines of my followers, would no doubt be much better served. But I do wish to say one final thing, just by way of consolidation, as Ms Mensch has unwittingly performed a public service by highlighting a particular strand of obnoxious and dangerous ignorance prevalent in commentary on criminal law, particularly pertaining to the conclusions that can safely be drawn from what is reported about criminal proceedings.

Mensch today published an article about the trial of convicted murderer Thomas Mair, in which she drew heavily on sage observations made by Matthew Scott on his blog relating to features of the proceedings. Matthew noted, for example, the unusual step of the court receiving into evidence an agreed witness statement from Stephen Kinnock MP, which appeared (if reported accurately) to amount to no more than “good character” evidence of the victim Jo Cox. If this was the purpose for its admission in evidence, it would be highly unusual. Matthew also observed, in his comments made pre-sentence, that based on what had been reported in the media, we might expect the issue of Mair’s mental health, although not led in evidence as relevant to his guilt (for example by way of a defence of insanity or diminished responsibility), to feature in the judge’s contemplation when considering sentence.

Louise Mensch seized on these observations and concluded definitively that Mair had had a “prejudiced” and “unfair” trial. The Judge had “played to the gallery” in allowing Kinnock’s evidence to be read. When challenged about this on Twitter, she doubled down and insisted that the Judge “acted wrongfully and immorally“.  Despite Matthew politely writing in the comments under her blog to caution against leaping from his observations to the conclusion that trial was unfair, Mensch has continued to repeat this from the rooftops over the last few hours.

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And this needs shutting down. Because it’s rot.

Mensch is not a lawyer. She was not involved in Mair’s trial. She was not present in court, nor it seems has she spoken directly to those who were. So her “conclusion” is in fact mere speculation. None of us who were not present know the legal grounds under which Kinnock’s statement was read. It might have been in some way helpful to the defence. It might be that it was favourable to the prosecution and on its face inadmissible. It might be that the Judge was wrong in letting it go before the jury. If so, Mair’s extremely experienced defence Q.C. will no doubt have objected and, if the Judge erroneously ruled against them, this could possibly form the subject of an appeal. But this, like Mensch’s musings, is completely speculative. We don’t know. And if we don’t know the full facts behind and reason for a decision, we cannot, and should not, claim to be able to draw a safe conclusion as to whether it was correct. Or, more pertinently, the motives of the decision maker, in this case the Judge.

The same applies to the issue of mental health. Mensch may have read a lot in the papers that gives her cause for concern (the same papers, it should be noted, that she rails against for printing other inaccuracies about Mair), but she is not a doctor. She is not a lawyer. She was not in the trial. She has no idea what material was before the courts, what material was available, and what the judge took into account when sentencing. She appears to speculate baselessly that Mair might have had an available defence on mental health grounds, implying that his defence, or the judge, were in error in not eliciting this. She goes on to claim that similar errors were made in the sentencing exercise. Certainly the sentencing remarks make no mention of mental health, but to assert, as does Mensch, that the Judge was wrong not to take Mair’s mental health into account relies on a number of astonishing assumptions. First, that Mair has relevant mental health issues. Second,  that his experienced Counsel, experienced solicitors and the experienced High Court Judge hearing the trial failed to identify the potential relevance of mental health issues and cracked on without giving it due regard. Or third, in the alternative, that there was relevant material which the Judge ignored when sentencing. Again, I am not saying for sure that none of those are right – they might be. But we don’t know. Mensch does not know. And if she does not know, she cannot guess.

She makes salient points about adverse publicity pre-trial, of which there was much following Mair’s arrest, particularly on social media. But again, not being in court and not having done her basic research, she has no idea of the repeated, careful warnings that are given to juries in such cases. Or if she does, she doesn’t acknowledge this. She leaps straight to the conclusion that this too renders the trial unsafe, her expertise far outweighing, it seems, that of Mair’s legal team who did not see fit to argue (as they could have done) that his case was so prejudiced by unfavourable media coverage that it ought to be stayed as an abuse of process. Mensch doesn’t pause to consider this. She doesn’t bother to learn the law. She guesses.

And she shouldn’t guess. Because 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. It is the same danger that lay behind Trump’s claims that the election was rigged, and UKIP’s baseless allegations that the High Court judges in the ‘Brexit’ case were biased. This is not to say that democratic institutions shouldn’t be scrutinised or criticised, or that concerns should not be raised; plainly they should be. But on solid and intellectually honest bases, by people in command of the facts and the arguments, reaching available conclusions sensibly and responsibly.

Not by 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.

11 thoughts on “Louise Mensch’s claims that Thomas Mair had an unfair trial are unsupported and wildly dangerous

  1. Brilliant paragraph EXCEPT the “Mensch is not a lawyer” bit” which I remove!.
    “She was not involved in Mair’s trial. She was not present in court, nor it seems has she spoken directly to those who were. So her “conclusion” is in fact mere speculation. None of us who were not present know the legal grounds under which Kinnock’s statement was read. It might be that the Judge made an error. If so, Mair’s extremely experienced defence Q.C. will no doubt have objected and, if the Judge acted in error, this could form the subject of an appeal. But this, like Mensch’s musings, are completely speculative. We don’t know. And if we don’t know the full facts behind and reason for a decision, we cannot, and should not, claim to be able to draw a safe conclusion as to whether it was correct. Or, more pertinently, the motives of the decision maker, in this case the Judge”.

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  2. Just for the avoidance of giving her the opportunity to try and discredit you for what I assume was a simple typographical error, would it be advisable to edit and insert “ex” between “erstwhile” and “MP” given that she only served the good people of Corby in Parliament for 27 months?

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  3. Please don’t take this as having a go at you, because it’s not, but: I don’t understand why the hell anyone gives Mensch any attention at all. As you say, she’s not a lawyer; she’s not an MP, having only served as one very briefly and unimpressively; she doesn’t hold any position of importance of responsibility, except running her own blog; and as I understand it, she doesn’t even *live* in the UK any more. As such, the views of the average man in the street are more relevant and more deserving of attention than hers.

    I appreciate what you’re trying to do here – futile though such reasonable argument will surely be – but I feel that even by responding to these absurd allegations you’re playing her game. As you put it, Mensch is a ‘professional antagonist seeking their latest hour in the sun’. Such people are best treated by ignoring them rather than giving them the oxygen of publicity.

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  4. Alasdair – you and the author are knowledgable enough to realise what she’s playing at, but I’m sure there are plenty of people willing to digest what she says in one big bite. It’s frustrating, no, agonising to see the potential for non-legals to start regurgitating what she says without understanding how unsubstantiated it is. Having just had a public attack on our judiciary the last thing we need is Mensch restarting the fire. If no-one chucks a bucket of water, her destructive flames will spread.

    I don’t think I’ve ever commented on a blog before; this one is absolutely fantastic and I find myself ‘fangirling’ over it.

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  5. Louise has more than the normal troll motive – the never ending links to the failing Heat ST website that she is involved in. Murdoch only has so much patience for failure no matter how blond the Neo con is. And unless something picks up soon La mensch may find herself having to trot out more vapid pulp romance novels o keep herself in the public eye or go down the Hopkins route to the gutter

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  6. A pertinent and well elucidated exposition on the dangerous trend of uninformed guesstimations being treated as valid arguments. She makes no argument. She stacks assumptions, all of which suit her own agenda, but never actually produces factual reasoning. It’s more than unsettling and you wonder what worse is to come.

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  7. I have been giving some thought, that is to say I have been wildly speculating, as to the route by which Stephen Kinnock’s evidence could be admissible. Even if he gave other evidence the material in praise of Jo Cox would usually be edited. The only thing I can think is that, in circumstances where the Crown are out to strict proof, the test of relevant and admissible evidence has to be applied to the question as to what are the issues in the case. With a non-participating defendant, identifying the issues is more problematic. From what I have seen the only utterance was the “death to traitors” magistrates’ court declaration. A possible avenue to admissibility would be to show that Jo Cox was fair from being a traitor and was a servant to the nation. As I say only a theory and required a degree of imagination.

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