Prosecuting a terrorist – how will our legal system adapt in the face of the Christchurch attacks?
By Sam Meyerhoff
Update: as of May 21st, the perpetrator has also been charged with engaging in a Terrorist Act under section 6A of the Terrorism Suppression Act 2002, in addition to the existing Crimes Act charges.
On March 15th, 2019, New Zealand faced the greatest tragedy in our country’s history. A man, who shall remain nameless in this article, attacked two mosques in Christchurch and killed 51 innocent people. This crime shocked the nation and the world at large. However, almost two months after the perpetrator was taken into custody, New Zealand as a nation is asking that most difficult question to answer: What now? That question is, of course, important to ask, but the answer we arrive at will depend greatly on the starting place of our analysis. While many have, quite fairly, discussed what this means for New Zealand culture, others are debating how the New Zealand legal justice system will adapt to this unprecedented crime. Should the perpetrator be charged with murder, terrorism or both? Should his name be mentioned in the trial? How will the judiciary address the very real concern that he will use this trial as an opportunity to preach his message of hate? This crime may have been unprecedented, but that is all the more reason for our response to be swift and erudite. The world is watching.
The Charges
To the surprise of many, the perpetrator was not charged under the Terrorism Suppression act 2002[1]and is instead being charged with 50 counts of murder under the Crimes Act 1961[2], with there being little doubt that if found guilty, he will face a life sentence for each[3]. While this is the greatest number of murder charges ever levelled against someone in a New Zealand court, there is the real discussion as to whether declining to press charges under the Terrorism Suppression act 2002 is unjust. This situation is complex though, and there are numerous policy considerations surrounding the perpetrator’s charges. The first and most notable is that despite receiving comprehensive amendment Acts in 2003[4], 2005[5], and 2007[6], there has never been a reported case of an individual or group being charged under the Terrorism Suppression Act. This means that, at its most basic, the Act is unfamiliar to lawyers and unpredictable[7]. Whilst the Crimes Act 1961 is one of the most important acts that any lawyer will ever learn about, very few lawyers have a comparable understanding of the Terrorism Suppression Act, and even fewer have a full understanding on how to prepare a case around it.
This is not to say that we are only now coming to terms with these issues. In 2009, when discussing the difficulties in charging people related to military-style training camps in the Urewera ranges, Solicitor-General David Collins said that the Act was almost impossible to apply to domestic terror groups due to its complexity[8]. The Act has since received amendments from Acts such as the Anti-Money Laundering and Countering Financing of Terrorism Act 2009[9]. But even if we were to assume that said changes fixed every problem in the Act (already a bold assumption) that would still leave less than a decade of jurisprudence surrounding the act in forms similar to the one it is in now. Many lawyers and scholars would argue that the current situation is of too high a severity to risk using an act with so many unknowns surrounding it. The other possible reason for charging the man with murder instead of terrorism is to do with the maximum penalty possible for each charge. A life sentence for a charge under the Terrorism Suppression Act 2002 has a mandatory 10 year non-parole period, however, the judge does not have the discretion to increase the minimum period of imprisonment. If the perpetrator is charged with murder, the judge would be able to sentence him to life without parole either by relying on the standard sentencing procedures for murder[10], or by using procedures related to murder as part of a terrorist act[11].
Of course, some would argue that this raises the question of what use the Terrorism Suppression Act is if in the face of a terrorist act, the Crimes Act 1961 is both easier to use and has the potential of a greater penalty. Clearly, the Terrorism Suppression Act should be more familiar to lawyers in a general sense, but we should also consider whether the Act itself needs to be re-worked. In 2009, it was called “incomprehensible” but if even now, with its comprehension improved, it is undesirable to use, then that is indicative of a wider problem with the legislation. In many regards, the law consists only of what is enforced and applied in court. if the Terrorism Suppression Act isn’t being utilised, one must wonder if it is even legally relevant in this country.
The Question of Media Coverage and Trial Process
However, this is only one issue put forward by the Christchurch shooting. We have looked at the reasoning behind the charges being laid against the perpetrator, but now we turn to the second question raised by this heinous act: How will the trial progress? To be specific, how will it progress in the face of a man who made it clear he acted in hopes of spreading his rhetoric and radical ideology? This question can be broken down into two main subject areas, the rule of law and ethical journalism.
While many public figures[12] have debated to what degree the perpetrator’s name should be discussed in public, it should be noted that the courts have not given the individual name suppression. While it is possible some evidence will be classified from the public, the man’s name and the process of the trial will remain transparent. This stems from New Zealand’s long-held commitment to the rule of law. One of the most important parts of the rule of law is the right to a fair trial. In other common law jurisdictions, it has been described as being as close to an absolute right as can be envisaged[13], and in New Zealand it has been described as sacrosanct notwithstanding the fact that it is “expressly subject to such reasonable limits provided by law as can be demonstrably justified in a free and democratic society”[14] under s 5 of the NZBORA[15]. While this statement is controversial to be sure, it serves the purpose of showing just how seriously New Zealand courts take the right to a fair trial. Bearing this in mind, it makes sense why the trial of the Christchurch shooter would still, despite all the controversy, remain open and transparent. Transparency is arguably the most important element of the right to a free trial and so the courts loathe to infringe upon it. This is as much a moral point as any other — The rule of law is a set of values that our legal system holds as a gold standard. To infringe upon it in the face of a tragedy such as this might be seen as some to be compromising our morals when they matter the most. However, this is not to say that the man’s name should be widely spread and celebrated in some act of defiance. The media shares a responsibility in this issue and their discretion will largely dictate how well-known this man becomes.
I will not dwell on the implications this brings for journalists, but I will note that this is a prime example of how the legal system does not exist in a vacuum. For all that theorists like Kelsen seek to make law fully self-sufficient and self justifying[16], it is still an element of our society like any other and will always affect and be affected by the world and culture around it. The legal problems posed by the Christchurch massacre are as complex as they are heart-breaking. In an ideal world we never should have to think about any of these issues. We never should have to debate whether murder or terrorism is the more appropriate charge; we should never have to wonder whether the right to a free trial should be limited. And yet, here we are. The law is designed to respond to tragedy not in a passionate or emotional way, but with calm logic and reason.
The Christchurch shooting has exposed some of the strengths of our legal system in accomplishing that goal; its faith in the rule of law and ability to function as part of a wider society. However, it also exposes some weaknesses: Acts must be amended and legal education must be improved. Most importantly now, we must consider what comes next. How will we adapt to a society that has fundamentally changed? What steps can be taken to ensure this never happens again? And how can we use our law to support those who were hurt most going forward? These may be difficult questions to answer, but our legal system is a product of our country and our culture. Just as our unity makes our society stronger, it will likewise strengthen our laws. We will find a way forward and we will do so together. The world is watching.
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Image sourced from facinghistory.org
[1]Terrorism Suppression Act 2002, s 6A (2).
[2]Crimes Act 1961, s 172.
[3]Sentencing act 2002, s102 (1).
[4]Terrorism Suppression Amendment Act 2003.
[5]Terrorism Suppression Amendment Act 2005.
[6]Terrorism Suppression Amendment Act 2007.
[7]Steve Kilgallon “Christchurch Shooter faces ‘extraordinary’ jail sentence” (17 March 2019) Stuff <https://www.stuff.co.nz/national/crime/111336144/christchurch-shooter-faces-extraordinary-jail-sentence>.
[8]“Act too complex to use, says Collins” (31 January 2009) Stuff <http://www.stuff.co.nz/dominion-post/17782/Act-too-complex-to-use-says-Collins>.
[9]Anti-Money Laundering and Countering Financing of Terrorism Act 2009, s 161(2).
[10]Sentencing Act 2002, s 86E (2) (b).
[11]Sentencing Act 2002, s 104 (1) (ea).
[12]Henry Cooke “PM Jacinda Ardern promises to never speak alleged Christchurch shooter’s name” (19 March 2019) Stuff <https://www.stuff.co.nz/national/christchurch-shooting/111403410/pm-jacinda-ardern-promises-to-never-speak-alleged-christchurch-shooters-name>.
[13] R v Lord Chancellor, ex parte Witham [1997], 2 AII ER 779 QB at p 787.
[14] R v Hines, [1997] 3 NZLR 529 CA at p 562.
[15]New Zealand Bill of Rights Act 1990, s 5.
[16]New Zealand Bill of Rights Act 1990, s 5.