What Mark Taylor could be prosecuted for

If Mark Taylor manages to get from captivity in Syria to Turkey, and then back to New Zealand – the Government nor anyone else seems to be rushing to help him come back here – he is likely to be taken into custody pending prosecutions. What he might face is yet to be determined, but there’s a variety of possibilities.

Stuff – Mark Taylor: The potential legal case facing the ‘Kiwi jihadi’ if he makes it home to New Zealand

Prime Minister Jacinda Ardern has said “Kiwi jihadi” Mark Taylor would face the full force of the law if he returned to New Zealand, so what would that look like?

Ardern made clear “it is unlawful to join and fight with a terrorist organisation as Taylor has done”, so there would certainly be legal consequences.

Is it Ardern’s call to make? Prime Ministers wouldn’t usually get involved in prosecutions, politicians are supposed to get a separation between them and the administration of the law.

If Taylor manages to make his own way to consular assistance – the closest available is in Turkey – and return to New Zealand it’s likely he will be picked up at the airport by authorities and brought to prison awaiting criminal prosecution.

That seems like a given. It would be alarming if this didn’t happen.

In 2015, police took “further security measures” after Taylor posted a YouTube video urging Islamic State followers in New Zealand to launch attacks on Anzac Day.

This week police told Stuff if a New Zealand citizen suspected of associating with a terrorist group were to return, they would be investigated under New Zealand law.

Police were working closely with domestic and international partners as part of its efforts to ensure the safety and security of New Zealand and New Zealanders.

“The circumstances of these individuals is highly complex and any investigation or possible judicial proceedings would be considered on a case by case basis. Police does not discuss matters regarding specific individuals.”

So what is Ardern giving her opinion for then?

Legal experts say Taylor’s social media and video postings would like see him charged under the Crimes Act, Terrorism Suppression Act and possibly the International Crimes and International Criminal Court Act.

He would be refused bail but would avail the rights offered to every citizen in the criminal justice system and his case would likely be long and drawn out through the courts.

The prosecution would not necessarily be a slam dunk with much of the case dependent on proof.

It’s normal for just about any legal case to depend on proof.

Dr Bill Hodge from the University of Auckland law faculty…

“As I understand it, he wasn’t shooting but acting on guard duty but that in itself is routine military exercise. Even if he wasn’t shooting or beheading, he was enabling others to do those things.”

“I think he’d be faced with a maximum possible sentence of 14 years, on the outer limits.”

That must surely depend on what he is charge with.

Professor Alberto Costi​ from Victoria University, who specialises in armed conflicts and international criminal law, said it was not clear what Taylor really done but he had boasted about what he was involved in.

There were provisions in the Crimes Act for threatening to kill as well as the International Crimes and International Criminal Court Act, such as war crimes, crimes against humanity.

John Ip, senior law lecturer at the University of Auckland, said Taylor could be charged with several crimes.

War crimes were a possibility.

He cites a case from Sweden, where a former rebel was convicted and sentenced to life imprisonment for war crimes – more specifically, involvement in the execution of captured Syrian government soldiers.

However, it’s more likely Taylor would face prosecution under the Terrorism Suppression Act. It states any person who even joins a designated terrorist organisation, is liable on conviction to imprisonment for up to 14 years.

That’s where the 14 year maximum comes from, but that’s just one possible charge.

Another possibility under the same act, was to commit a terrorist act, punishable by up to life imprisonment, he says.

Ip and other legal experts agree, the most likely offence would likely be section 13 of the act; participating in a terrorist group, which would not require proof of specific wrongful conduct such as executing prisoners and killing civilians. The law describes the participation in a designated terrorist entity.

But Ip says there is no guiding case law on what terms like “participation” mean.

“The sections have never been used and sitting moribund since the aborted prosecution in relation to the Operation Eight raids in 2007.”

Whatever Taylor ends up being charged with it would be a test case and is likely to be challenging to both prosecute and defend.

Would it go before a jury? It could be hard to find 12 people in new Zealand who don’t think he’s an idiot who deserves to have the legal book thrown at him.

It’s possible that with untested law he gets off on a technicality.

Another possibility is some sort of charge and plea agreement. Taylor has already claimed or admitted quite a bit. He might find it simpler and less risky to cooperate and accept a moderate sentence.