Oblique intent

Why the name? Well criminal law afficionados will recognise the phrase 'oblique intent' as referring to a problem of mens rea:can a person who intends to do x (such as setting fire to a building to scare the occupants) also be said to have an intention to kill if one of the occupants dies? This is a problem that has consumed an inordinate amount of time in the appeal courts and in the legal journals, and can be taken to represent a certain kind of approach to legal theory. My approach is intended to be more oblique to this mainstream approach, and thus to raise different kinds of questions and issues. Hence the name.

Friday, 25 November 2016

On terrorist crimes

I suspect that I am not alone in being confused at the message coming from the prosecution on the conviction of Thomas Mair for the murder of Jo Cox. It was, they insist, a terrorist murder and he had been tried as a terrorist (which is why the trial was in London). But they go on to say that it was not prosecuted under the Terrorism Acts and the jury had not been told that he was regarded as a terrorist because he had been prosecuted for the common law crime of murder, and they had not raised the question of his political motivation. But he may have been sentenced as a terrorist - whatever that means as the judge could have given a 'whole life' sentence in a particularly serious case of murder, which this undoubtedly was. So is he a terrorist, or was it a terrorist offence? It is hard to say.

Thomas Mair, the killer of Jo Cox MP
The case for arguing that it was a terrorist act seems to rest on the argument that it was motivated by political ends. As he attacked his victim he yelled political slogans, and the police subsequently discovered that he had collected nazi memorabilia and that he had far-right sympathies - though he was not associated with any group and did not seem to be acting with (or for) anyone else. This, in a literal sense, then falls within the definition of terrorism in the Terrorism Act 2000 s.1: it was an act involving serious violence against a person and was done for the purpose of advancing a political cause.

The case against would be to say that there are many politically motivated crimes which do not necessarily amount to terrorism. That is to say that while much terrorism is politically motivated the question of political motivation cannot be determinative of the question on its own. Our history is full of political assassinations and bombings, but it is only recently that we have begun to refer to them in terms of terrorism. And the idea of terrorism seems to imply that the violence (or its threat) would create some sense of terror or insecurity. Of course, this can itself be problematic as certain serial killers have created precisely this sense of terror among the community of the victimised, though we would not normally regard serial killers as terrorists.

This points to the well known difficulties of trying to produce a satisfactory definition of terrorism, which I something that I cannot resolve here. However, it is worth asking what is stake in labelling Thomas Mair a terrorist. Leaving aside the question (which I have been unable to resolve) of whether there are special sentencing powers here, labelling the killing as a terrorist act makes terrorism seem more widespread and arguably contributes to a climate of fear and insecurity - and this may be in the interests of the police or security forces as it can justify the use of, of call for, special measures or the suspension of normal rules of law. A random killing, however tragic, by a loner with a history of mental illness may be unduly dignified, or treated with an unwarranted degree of seriousness, if we call it an act of terrorism - and we should resist these moves.

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