The person accused of the Christchurch mosque attacks, Brenton Tarrant, has been called a terrorist. Why then hasn't he been charged with being one?

The killing of forty-nine people in Christchurch was an act of terror, allegedly committed by at least one individual motivated by white-supremacist ideology. We know this, as our Prime Minister already has publicly called this evil by its true name. 

How, then, will we respond as a society? I hope that we look to Norway and the words of its Prime Minister in the wake of that society’s recent experience of right-wing terror: “Our response is more democracy, more openness, and more humanity.”

If we don’t do likewise, then the terrorists really do win. As Jacinda Ardern has said, we were attacked precisely “because we represent diversity, kindness, compassion, a home for those that share our values, a refuge for those who need it.”

Abandoning those values in the name of revenge, safety or anything else would be to demean the forty-nine who died.  

That being said, we also owe justice to them, to all those who loved them, and to the community that mourns them. And today process began as the alleged perpetrator of this evil, Brenton Tarrant, appeared in court.

At present, he has been charged with murder. There is a chance he will spend the rest of his life in prison should he ultimately be convicted of this offence; the acts he's suspected of commiting must be a candidate for receiving a "life without parole" sentence under the Sentencing Act 2002, s.103(2A).

However, if his alleged acts constitute an act of terror (as has been said), why have no charges been filed under the Terrorism Suppression Act 2002? Under s. 6A of this legislation, anyone who engages in a “terrorist act” faces a life sentence of imprisonment.

Such a charge would not add anything in a practical sense to the potential punishment the accused faces. But if we’re publicly calling his alleged actions “terrorism”, shouldn’t we be charging him with that in court?

There’s likely good reason why that hasn’t happened yet. The murder charge the accused appeared on today is not necessarily the only one he’ll finally stand trial for. Indeed, the Police already have said that they intend to lay further charges against him

Rather, anyone arrested and held in custody in New Zealand must promptly be brought to court to determine if they should remain locked up or be released on bail. At that hearing, the Police must say why the accused has been arrested and what they are being accused of so that the judge can decide what to do with them.

As the Police can provide significant evidence that the accused shot multiple people in cold blood, murder was the obvious and immediate charge. It proved sufficient to hold the accused in custody while the Police carry out further investigations as to exactly what happened and why.

Depending on those investigations, and after consulting with legal advisors, further charges can then be added. So, we very well may see additional charges of engaging in a terrorist act filed against the accused in the future, alongside the murder charges already filed.

Such charges will require showing that the accused: 

  • intended to cause the death of, or other serious bodily injury to, 1 or more persons;
  • for the purpose of advancing an ideological, political, or religious cause; 
  • with the intention of inducing terror in a civilian population or unduly compelling or forcing the government to do or abstain from doing any act.

As you can see, that requires a bit more of the Police than a murder charge, which requires showing that the accused intentionally killed another person. Gathering the necessary evidence of the accused’s motivations to the required standard needed in court will take time.

However, one thing seems clear. If the evil acts in Christchurch do not result in charges of carrying out a terrorist act being brought against someone, then that indicates that the Terrorism Suppression Act 2002 is fatally flawed. For if our legal system cannot clearly label what has happened as terrorism, then it will need to be changed.

 

Comments (10)

by Dennis Frank on March 16, 2019
Dennis Frank

A very good point, well-reasoned.  I totally agree.  Funny that the cops are now saying he was both shooters. In his manifesto, he declared that he was acting alone. 

Why, then, the other arrests?  Paul Buchanan's suggestion that he's part of a cell of ten people seems to need clarification since he was living in Dunedin - and all the media discussion yesterday of him being part of the skinhead subculture advocating white supremacy in Christchurch since the mid-'70s therefore seems questionable.

Any terrorism charge will presumably derive from research into these dimensions of the situation.  Did he explicitly advocate mass shooting online?  Or even just violence against islamic believers?  Like many, I have chosen not to view his propaganda but the answers to these questions bear on a charge of terrorism.

An Australian citizen, apparently.  Does that mean export to his homeland after conviction?  His use of crusader terminology - christian, or just a dark knight?

by Lee Churchman on March 18, 2019
Lee Churchman

In some ways, "terrorism" isn't really sufficient to define this. There's an element of pure hate in this crime that is absent in a lot of terrorist acts (which often have straightforward [if often unrealistic] political goals–e.g. Black September wanted prisoners released). This guy sounds like Charles Manson.

by Colin Fleming on March 19, 2019
Colin Fleming

There's an interesting comment over on Reddit (I know, I know, but it's actually quite good) about this: click click. The TL;DR is that the TSA is primarily designed to suppress terrorism before it takes place. I'm no lawyer so I have no idea if this is actually the case, but it's an interesting read.

by Charlie on March 19, 2019
Charlie

Terrorism:  the unlawful use of violence and intimidation, especially against civilians, in the pursuit of political aims.

I suspect it's easier to charge him with murder because it is almost self-evident: Pretty much a guaranteed conviction.

However to charge him with terrorism might require some evidence of 'political aims' and evidence he's part of a terrorist organisation. I have read a few snippets of his rambling manifesto online. It's all over the place. It is the work of a madman.

There's another really good reason to charge him with simple murder: Treat him as a common criminal so as not to give him opportunity to turn himself into a martyr.


by Colin Fleming on March 19, 2019
Colin Fleming

Yes, in the comments over on reddit the original poster (who is a prosecutor) mentioned this, although from a more practical angle. The suspect has chosen to represent himself, presumably because he's hoping to get much wider coverage of his ideology during the court case in that way. If the charge is murder rather than terrorism, the judge can require him to restrict his evidence and questioning to specifics relating to murder which will permit far less rambling and grandstanding. The questioning about ideology for a terrorism charge would undoubtedly give much wider scope for him to push his views.

by Ross on March 19, 2019
Ross

What is interesting is that the accused's name hasn't been suppressed, yet we presumably hope and expect that he receives a fair trial. But late last year, Grace Millane's alleged killer was given (and still retains) name suppression because, apparently, it would be inappropriate to release his name. The Justice Minister was most concerned that he could suffer prejudice before his peers.

"I think it's unfortunate the British papers have done what they've done. It will not do justice to the Millane family if the accused in this case gets to walk away from facing justice because somebody else has disclosed his details," Little told media this morning.

I'd like the Minister to explain how it's OK to release Mr Tarrant's name - with all the associated details of his life being raked over - but not the name of the alleged killer of Millane. Can the former really expect to get a fair trial?

by Tim Watkin on March 20, 2019
Tim Watkin

Ross, Tarrant actively released his identity on global forums and livestreamed his murders. His identity was known and shared in seconds. There was no chance to suppress his name and any action after the event - by the time he was in court - would have been pointless.

by Ross on March 21, 2019
Ross

Tim,

You've missed the point. If Tarrant receives a fair trial, wouldn't it be reasonable to assume that the alleged killer of Grace Millane is likely to receive a fair trial with or without his name being published? Conversely, if the latter is unable to receive a fair trial due to the publication of his name, what chance is there of Tarrant receiving a fair trial? 

As a side-issue, the media is not obliged to refer to Tarrant (and if it was up to the Prime Minister they would not). Late last year Stuff ran an article about two babies' deaths which police were apparently treating as possible homicides. Stuff decided not to publish the name of the suspect even though her name is known to the media. 

https://www.stuff.co.nz/national/crime/108470758/sibling-infants-deaths-...

 

by Charlie on March 22, 2019
Charlie

Jacinda declaring on TV that he is a murderer and a terrorist...sub judice?

His defence might be insanity for all we know

 

 

 

by Danyl Strype on April 10, 2019
Danyl Strype
If the mosque shooter is not charged under the TSA, it reveals two things. One, that the TSA is an unnecessary law, which politicizes what can and ought to be straightforward criminal charges based on the violent act(s) planned or carried out. Two, that the TSA is the weaponization of law against certain groups in society (eg Māori sovereignty activists and environmentalists) and not a general-purpose law that applies to a class of *actions* regardless of their ideological *motives*. If that's the case, and if our response, like Norway's, is to be “more democracy, more openness, and more humanity”, part of that response ought to involve the repeal of the TSA.

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