A familiar sound for readers of the Mail on Sunday is the deafening cymbal-clash of Peter Hitchens colliding with reality. This last Sunday offered a particular highlight, which, although there is undoubted wisdom in leaving him alone to figuratively wander the 21stcentury in his dressing gown shouting at clouds, cannot pass without comment.

Summarised by this tweet:

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he shared his considered view that Thomas Mair, who was convicted by a jury of the murder of Jo Cox MP and sentenced to imprisonment for life, has wrongly been tarred a terrorist.

Undeterred by the fact that there was a wealth of evidence before the court which he, as somebody who was not in court for the duration of the trial, has neither seen nor heard, Mr Hitchens, armed with a fistful of second-hand newspaper reports of snippets of the case, assured readers that he, the clear-sighted rationalist, can see the case for what it is: “a tragedy twisted into a bogus ‘terror plot’”.

The premise of his thesis, as he expanded in a further blogpost on Monday, appears to be twofold. Firstly, it is “absurd” for anyone to claim that Mair was a “rational, coherent political actor”, as his actions “predictably achieved more or less the exact opposite of what he supposedly intended – and he would have grasped this in a second had he been in a normal state of mind”.

Allied to this is the second proposition: in Mair’s trial, there was evidence of mental ill health, which was suspiciously omitted from the legal proceedings. “Mair’s lawyer said he would not bring his medical history into the case. But why not?” “Why does the authority ignore such vital facts?” he demands, fingers twitching towards the tin foil with millinery intent. “Does the government want to believe, and to spread the idea, that there is some organised Right-wing terror plot?”

We can deal with the first argument swiftly: irrationality and mental ill health are two discrete concepts. The former may be a symptom of a latter, but they are not necessarily linked. Most of the people who cross the threshold of the criminal courts are irrational.  I’ve prosecuted more burglars than I can count who, despite their extensive experience, have still failed to process that climbing through a broken window is likely to result in your blood being left at the scene. The number of young men who, disqualified from driving and flagged down by the police, decide not to cut their losses and take their dues but instead to lead the police on a merry 90mph pursuit through residential areas and red lights before, inevitably, being caught, adding dangerous driving to the charge sheet – irrational? Tick. Incoherent? Tick. Achieving the exact opposite of what they supposedly intended? Tick. Colloquially they might be said to, in Hitchens’ words, be “roaming along the outer frontiers of sanity”, but mentally ill? That’s something different.

But amateur diagnostics aside, let’s consider Hitchens’ overarching theory: the suspicious omission of medical evidence of mental ill health from Mair’s trial. Referring to comments in news reports, he finds various examples of people claiming to know Mair – none apparently medically qualified – and offering anecdotes and opinions on Mair’s mental health. There is also a suggestion that Mair was in receipt of psychotropic medication. From this, Hitchens decries the “puzzling decision to ignore the plentiful evidence of Mair’s mental abnormality, reported at so many different times by so many independent people, but not discussed before the jury.”

Well this is only suspicious and puzzling if you don’t understand the first thing about how a defendant’s mental health is relevant in criminal proceedings. And it is regrettable that, given how frequently Mr Hitchens finds novel ways to be wrong about the criminal law, he did not think to ask anybody involved in criminal justice for their insight. Had he done so, he may have been told something along the following lines.

Evidence is carefully filtered in every criminal case. The court is only allowed to receive evidence that is relevant. Many defendants in criminal proceedings have lengthy histories of mental health problems. But it is only in a handful of trials that their condition is relevant to the issues that the jury have to determine.

How might mental ill health be relevant?

If a defence solicitor or barrister believes that a client may be suffering from mental ill health, they will as a matter of course obtain the client’s medical records and commission a psychiatric report. That report may be asked to comment on one or more of a variety of matters.

A psychiatrist may be asked to assess whether a defendant is “fit to plead” – legalese for being fit to participate in the trial process. This involves an assessment of whether a defendant can: understand the charges; decide whether to plead guilty or not guilty; exercise his right to challenge jurors (if, say, he knows one of them); instruct his legal representatives; follow the course of proceedings; and give evidence in his defence. If he can’t do one or more of those things, and if a judge hearing the evidence of two psychiatrists finds that the defendant can’t, he will be unfit to plead. This means that instead of a criminal trial there is a modified process (known as a “trial of the facts”), where a jury decides not on guilt but whether the defendant “did the act”. If so found, the court’s powers are limited to strictly rehabilitative options.

A psychiatrist may alternatively or as well be asked to opine on whether a defendant has a defence of insanity, defined as:

at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong

In murder trials, there is also a partial defence of diminished responsibility:

Furthermore, if a defendant were not capable of forming the specific intent to kill or cause grievous bodily harm (the mens rea for murder), whether because of a psychiatric condition or because of intoxication, that would also provide a defence to murder.

Finally, a psychiatric report may help with sentence. It may afford mitigation, if the offence was committed against the background of a mental health condition that reduced his culpability. It may make recommendations for particular disposals, such as hospital orders. And it may comment on issues that the court have to consider such as future risk.

Now the headline with all of these is that any such reported obtained by the defence attracts legal privilege. This means that the defence do not have to show anybody else – the court or the prosecution – the contents of the report if they do not wish to. So if a psychiatric report does not help the defence case, there will usually be no point in serving it. Many, many psychiatric reports are prepared for court cases every day and ultimately not relied upon. Often, the conclusion will be, “The Defendant suffers from psychiatric or psychological disorders, namely X, Y and Z, but not to the extent that any of the legal defences apply”. Sometimes, worse still, the report will be positively harmful to the defence. “The Defendant expressed no remorse and in my view presents a significant risk of serious harm to the public” is the last thing you want the court to read if you are trying to do the best for your client in mitigation. But, and I will repeat this, the fact that mental health issues were not “discussed before the jury” does not mean that all relevant mental health issues were not considered and dealt with appropriately.

Now we do not know why Mair’s lawyer did not rely on medical evidence. But we do know, because the defence barrister told the court at a pre-trial hearing, that Mair had been subject to an assessment.

So that leaves us with two possibilities:

  1. The defence lawyers considered that the contents of the psychiatric evidence, although perhaps showing that the defendant had mental health problems, did not assist the defence case;
  2. The defence lawyers ignored the psychiatric evidence, or negligently failed to appreciate that it was legally relevant and of assistance, and Peter Hitchens, who has never seen the evidence and is not legally trained, has correctly guessed this by piecing together things reportedly said by friends and neighbours.

Mistakes happen, of course. Negligence happens. Lawyers and judges are far from infallible. We see awful cases on appeal where the courts and/or defence representatives failed to appreciate the significance of a defendant’s mental health. But there is absolutely nothing to suggest that this is what happened in Mair’s case; to the contrary, his highly experienced lawyers indicated to the court that mental health had been considered and was not, for reasons that they do not have to state openly, going to be relevant to the issues the jury had to decide. Nor, from the sentencing remarks, was there any mental health issue relevant to mitigation. You’ll note that Hitchens does not suggest in respect of which legal issue – fitness to plead, a defence (and which one) or mitigation – the evidence of mental ill health ought to have been adduced. He just vaguely asserts that it should have been “discussed before the jury”, without deigning to tell us to what end.

Hitchens’ hang-up appears to stem from the false presumption that because an issue wasn’t raised before the jury, it wasn’t considered. That is wrong. No such deduction can safely be made. If Hitchens has spoken to those involved in the case, or has somehow seen Mair’s medical records or psychiatric reports, he may be onto something. Without any of those, it is nothing more than a conspiracy theory, and, given the imputation that Mair’s lawyers have been professionally negligent in service of a government agenda, a potentially libellous one at that.

Despite this all being pointed out to him, by numerous people, Hitchens remains characteristically recalcitrant. He insists that he is not seeking to excuse or defend Mair’s conduct, but he remains strangely keen to leverage minimal evidence of mental ill health to distance Mair from the “terrorist” label. The evidence of political motivation behind Mair’s actions was abundant, as the sentencing remarks made plain, but Hitchens goes to tortuous lengths to try to rebut this, climaxing with: “To me, his very insistence to police that “I am a political activist” shows that he was nothing of the sort.” Or as Brian’s followers would have it, “Only the true Messiah denies his divinity.”

Quite why Hitchens is so wedded to a thick black line that does not exist – attempting to separate mental ill health and terrorism into mutually exclusive camps – is also a mystery. Why he cannot accept the proposition that a person can be mentally unwell whilst still capable of committing deliberate and knowing acts of political carnage is as baffling as his determination to cast Mair as a victim of a state fit-up. The whole argument, as with so much of what Hitchens writes, is achingly bizarre. By the time you’ve finished deconstructing it, you almost forget why you started. Like the time he mistook the origins of the term “county lines” and got himself in a week-long tantrum, his thinking on this issue betrays a millefeuille of irrationality, incoherence and counterproductive reasoning. Hitchens has a term for that, but I expect he would not take kindly to it being applied to him.

thesecretbarrister Bad Law, Lawsplaining , , , , ,

44 Replies

  1. Putting aside Mr Hitchens’ desire for self promotion, is there not a cogent argument that anyone who commits murder with no reasoned justification must be mentally unstable to a greater degree. Given the potential reduction in sentence if such an argument were successful then it is surprising that the defence did not float this particular boat.

  2. I’d admire your patience and fortitude in reading these opinion columns, let alone finding the energy to respond to them. There is too much written opinion in the media, supported by too little investigation. Do take regular breaks from this type of work so as to avoid damaging your own mental well being !

  3. “Irrationality and mental ill health are two discrete concepts…” 🤣

  4. ‘twitching for the tin foil with millinery intent’ is a brilliant line! Agree with Strider re all murderers/terrorists being mentally ill on this basis. Maybe Hitchens thinks only brown skinned terrorists and fanatics really mean it.

    1. Ridiculous comment. Peter Hitchens is not in the slightest racist.. He thinks most terrorists, other than the IRA, are drug abusers who have addled their brains. Try reading before commenting ignorantly.

    2. It looks like abuse to me. As for the comment itself, it misses with both barrels. Anyone who read my archived, indexed blog will know that I have for some years been pointing out that persons said to be militant Islamist terrorists, from Lee Rigby’s Killers to the Charlie Hebdo, Bataclan and Nice killers are more likely to be petty criminal lowlifes with drug problems.

  6. Reblogged this on | truthaholics and commented:
    “Quite why Hitchens is so wedded to a thick black line that does not exist – attempting to separate mental ill health and terrorism into mutually exclusive camps – is also a mystery. Why he cannot accept the proposition that a person can be mentally unwell whilst still capable of committing deliberate and knowing acts of political carnage is as baffling as his determination to cast Mair as a victim of a state fit-up. The whole argument, as with so much of what Hitchens writes, is achingly bizarre. By the time you’ve finished deconstructing it, you almost forget why you started. Like the time he mistook the origins of the term “county lines” and got himself in a week-long tantrum, his thinking on this issue betrays a millefeuille of irrationality, incoherence and counterproductive reasoning. Hitchens has a term for that, but I expect he would not take kindly to it being applied to him.”

    1. This is just abuse. The person involved has read nothing that I have written with any care a. A rebuttal would occupy pages. But as he wouldn’t read it, it is purposeless.

  7. Pingback: The Myth of Mental Illness and Extreme Violence | Granite and Sunlight

  8. The legal position is clear and correct.
    What is missing is the acceptance that psychotropic medication changes people’s minds to such a degree that they do things because they cant help themseves something that they would not have done but for the medication. Psychiatrists and the psychiatric industry does not want this view to prevail. The problem also exists in coroners courts as well, most noticeably in cases of suicide.
    These prescription medications are harmful and dangerous for the user and the cause of consequential harm to others.
    Chris

  9. I only wish I could write posts with such clarity, wit and erudition. I don’t expect Hitchens to respond or if he does it’ll be to suggest that SB is in league with the Deep State.

  10. Leaving aside your gratuitous insults about Hitchens’ mental state, the one thing that stands out from your piece is that lawyers and judges do get it wrong some times. And boy, don’t we know that? Do you not know that most of the public- including people a lot better educated than lawyers – consider barristers smug and superior sorts who confuse their facility with rules with actual wisdom and insight? We know that it’s a game of calculations and bluffs and its connection to the truth is sometimes only tangential. We know also that the business of prosecution is highly politicised- and in such a climate we despair of actually getting at the truth. Your superior sneers don’t help the actual need.

    1. I managed a year of a law degree.

      Despite the fact the first seminar was contrived to allow the tutor to bring it to a close with the words “The law has nothing to do fairness, it has nothing to do with justice, it is only concerned with the law!”.

    2. Oh Brian. All you are doing is insult after insult, you don’t actually have a point. You’re the only one sneering. Next time, Brian, you need to actually have an argument against what someone says before attacking them, particularly on their own blog.

  12. It looks to me it is the mis understanding of both the law and mental health that is more important than the facts of the case. You could be ignorant of the facts of the case but still get you can be both mentally ill and a terrorist.
    The failure to understand mental health appears his biggest problem.

  13. If someone has an extensive history of severe mental illness then it should be used as evidence. Especially in a trial such as this. Mental illness affects people’s thinking, behaviour and actions. Therefore how anyone can consider it irrelevant is beyond me.

    His far right views can’t be ignored of course, and were no doubt a factor in his decision to murder Jo Cox, but it seems likely that a history of severe mental illness could have been a reason for him developing these views in the first place. It would then seem plausible that his illness played a significant part in bringing these fanatical, incoherent views to a final conclusion, which was to murder a prominent member of what he considered to be a key figure of the liberal establishment.

  14. Regardless of the final analysis, Mair’s lawyer made the decision that mental health should not be considered by the jury. Whether or not this was acting in Mair’s best interest, it’s funny that the lawyer should be the one who makes this call. Why not the janitor?

    1. *Did* Mair’s lawyer make that decision? It is perfectly possible (though we cannot know, and I don’t claim to) that Mair himself, perhaps by inaction or silence, withheld permission for such a course. But could the judge not have addressed it?

  15. I think you are confusing mens rea with motive. Hitchens’ argument seems to centre on motive.

  16. I don’t know where you find the time to be so painstakingly detailed in these posts, but thank you.
    Some stories are simply informative to someone like me whose last criminal case was 1989, but who sees his criminal colleagues struggling daily with the inadequacies of the system and the fees structure.
    Others, like this one, are simply fabulous.
    Is there any chance at all that Mr Hithchens will read this, follow up the explanations of the law, and recognise his errors?
    all best regards
    Grant Lazarus
    ps – the book was great too.

    1. Yes. Assuming a Defendant has capacity, he is as perfectly at liberty to instruct his lawyers not to raise any mental health issues. A lawyer may advise strongly that raising such issues would be in the Defendant’s interests, but the Defendant is free to reject that advice.

      1. This seems to me to be an important observation. But another question that should be asked is: ‘Does a Judge have the power to raise issues that the defence has chosen not to raise, if he considers them relevant? ‘

  18. Any chance my original comment will be published? Or do you only allow those which agree with you and slate Peter Hitchens?

    1. You seem not to have noticed that Hitchens himself has posted numerous comments here. Your claims are nonsense. You just didn’t comment properly. Your mistake is not someone else’s bad agenda.

  19. Good post. It left me with one question though. Hypothetically, how likely is it that a defendant, by reason of mental incapacity / illness, could make decisions detrimental to their own defense? Say that a defense team commissions a psychiatric report which does conclude the defendant meets the threshold for an insanity defense, but then the defendant instructs his team not to present it in court. Is this feasible? It stands to reason that someone with mental health issues could make decisions against their own objective best interests, but are there safeguards in the system to prevent this?

  20. Pingback: Best of the blogs - Legal Cheek

  21. I need to point out that much of this discussion of Peter Hitchens’ comments is unduly gentle. HItchens says, unequivocally, that those who call the murder of Jo Cox politically motivated assassination are acting in bad faith. ‘Time to stop pretending’: and direct comments on his stream are dealt with similarly. Everyone else is acting in bad faith and should be scolded into stopping.
    Challenged on this, Hitchens rants and then blocks or deletes comment. He does not answer.
    Nor does he answer the considered points made against his position – that a determination of unfitness to plead, or a determination of not guilty by reason of unsound mind, aren’t things a court must deal with in all cases before the political motivations of a crime get taken into account. Nor does he deal with the obvious, and I think entirely sound, point that politically motivated terrorism isn’t inconsistent with some degree of mental disturbance and that there are degrees of mental disturbance that do not offer a defence to criminal charges, and do not preclude fitness to plead.
    True, Hitchens seems to prefer brief assertions that critics haven’t considered his claims and contends that contrary positions are adopted only in bad faith more sparingly.
    But his starting claims of bad faith show the difficulty of having any discussion with him. If disagreement is proof of bad faith he cannot be led to address any substantial counter argument to his views.

    1. I don’t think *anything* in the above post is true, with the possible exception of ‘the’, ‘and’ and ‘of’

    3. Absolutely spot on. He’s even made those ‘brief assertions’ in comments on this very blog. It is rather common in right wing internet circles to make ‘bad faith’ out of every disagreement.

  22. Mair was clearly mentally ill, was interested in Nazi literature, had looked at Ku Klux Klan websites, and had decided at least some weeks before the murder that he was going to kill Jo Cox. That is hardly an “abundance” of evidence that he was a serious, rational political actor. As Peter Hitchens points out, a rational person would not have committed this act, knowing the damage it would do to their cause.

    The question then becomes why the defence chose not to use Mair’s mental health issues as part of their case. This probably won’t be cleared up, and while I’m not saying that it’s definitely the case, it leaves open the possibility that, not only has the idea of Mair being a rational, politically motivated murderer been beefed up, but the idea that he was an irrational, mentally ill manslaughterer has been downplayed, something which an examination of his mental issues could have demonstrated (abnormality of mind being grounds for diminished responsibility). This provides the killing with much more power and force, which can then be used and exploited for propaganda purposes, as has been done ever since.

    Part of the process of downplaying the “irrational, mentally ill manslaughterer” idea is the angry and wild reactions to anyone who suggests it, which are intended to humiliate, intimidate and shut people up, as are smears such as “conspiracy theorist”, “tin foil hat”, or threats of libel.

    Attacking the man, not the ball, is always a sign that you don’t have a convincing argument.

    1. Indeed.

      And there appears, at best, a complete misunderstanding of what terrorism is, despite the dead giveaway clue in the name.

      Terrorism is where a militarily weak party tries to achieve its political ends by terrorising the opposition, through terrifying actions against (mainly – otherwise it’s guerrilla warfare) civilians with the aim of them surrendering to the terrorists demands.

      They don’t care if their victims hate them, but they do want them to fear them enough to surrender.

      Mair’s act, in the Referendum campaign, if at all rational, could only have been to sway the result in his favour.

      Clearly, there is no way his act would have terrorised Remainers into voting Leave.

      Just as clearly, the much more likely result would have been sympathy for Jo Cox and her cause and hatred for the EvilMysogynistSexistRacistXenophobicHomophobicIslamophobicBigotedKnuckledraggingNeanderthalFascistNaziBrexiteers!

      And therefore an increased vote for remain.

      If Mair was really a sane rational actor he can only have been a Secret Remainer who contrived to give the appearance of the opposite.

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