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Effects of Reintroduction of Capital Punishment in the UK

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The legal and political effects of re-introducing capital punishment into the British Criminal Justice System.

Acknowledgement

I would like to thank Ms Rebecca Greenhalgh of the charity group Amicus, who provided endless assistance with source materials and statistics reflecting the psychological effects of being on ‘death row’. Amicus is a charity based organisation that assists the lawyers of families of death row prisoners and also provides help with coping with the stress that goes hand in hand with the anticipation of execution. Help is also provided in order to assist with prison visits and other initiatives for the benefit of raising awareness of the unconstitutional status of Capital Punishment in the USA.

Appetiser

“I remember the pounding fists of the wooden railings that kept the mob out of the sand covered courtyard. I can still smell the burning embers of Ellion’s pages as they rose above the various bonfires that lined the outskirts of the crowd. These were the ashes of testimonies given by Ellion during the trial but I mourned no loss, for as long as Ellion was alive, his words, teachings and truths would never be lost.

I took the final steps of my life knowing above all else that my path was great. I chose to dwell on only one sight and it was not the mob and their deafening cries as they yelled the word HERETIC alongside the din of the executioner’s drums.

Nor do I remember the sight of the wielded axe and the faceless man who held it high above my head, ready to strike away at the last of my breath.

I remember, but one thing, I remember as I looked up at the distant Minoton in flight, I witnessed it soar up into the skies that at last, to me, boar the eeriness that I could comprehend. I now knew that it was the eeriness that comes with the discovery that these were not the skies that had known of our forefathers.

The last words I ever spoke resounded in the ears of the peoples of Giddo Kaata for all time. “For Peace and Knowledge.”

With that the drums halted and the crowd was silent. I closed my eyes as I knelt and felt a slight breeze, then pain and, as I opened my eyes again, I found myself in a vast world of perpetual darkness, and I feared nothing.

Live long Ellion, the man for whom I die. Live long, and recite your chronicle.”

Extract from ‘The Heretic’ by Nicola Louise Tysoe (unpublished, copyright Nicola L Tysoe)

Contents Page (Jump to)

Introduction

Part 1: The legal effects of the re-introduction of capital punishment into the British Criminal Justice System

1.1 History

1.2 Effects of the Human Rights Act 1998 and the ECHR

1.3 Comparison with USA, the need to repeal the Human Rights Act 1998

1.4 The Legal Consequences for Britain as an EU Member State and a brief mention of the recent Turkey situation

1.5 The legal effects of International Law Treaties

Part 2: The Political Effects of the Re-introduction of Capital Punishment into the British Criminal Justice System

2.1 Internal Politics

2.2 The European Policy with Turkey as an example

2.3 The Alterations of the International Political Alliances with the UK

2.4 Resultant Weakness of the UK’s participation in international politics

2.5 A USA/UK Alliance

 

Introduction

The death penalty was abolished in 1965 as a result of the Sidney Silverman (MP) private member’s bill. The debate on the concept of re-introduction did however take place although with increasing failure and with the current governance of the Human Rights Act 1998, the question is now posed, what would be the legal and political effects of the British re-introduction of the death penalty?

In order to answer this question it is important to give a brief overview of the history of death penalty reform in order to become aware of the core issues that motivated changes in the law that profoundly stretched over a period of time that included the Napoleonic wars, the industrial revolution, the rise of an educated, middle class, two world wars and their aftermath of social enlightenment. The importance of this exercise will be to also reveal the type of social and political climate that would form the necessary pre-requisite for inspiration to finally abolish the death penalty. Further to this, the effect of the ECHR and the Human Rights Act 1998 will be assessed and comparison with the wording of the US Constitution will provide the subject of analysis for contrasts between pro and con death penalty policies as well as illustrate how capital punishment is allowed in a country that has a Bill of Rights. In light of the UK’s commitments to the ECHR, the legal consequences of re-introduction of the death penalty will be revealed in part one, with a complimentary description in Part 2 of the political steps that the UK would have to take in order to realise this hypothetical goal. Part One will end by giving a description of the contrasting commitments under international law treaties.

As already explained, part two will discuss the political consequences for the British re-introduction of the death penalty. This means that, as well as stating the steps required for realisation of a death penalty policy, there will be a detailed analysis of UK internal politics, as well as the Country’s relationship with the political, international community and current weaknesses. The purpose of this exercise will be twofold. In the first place, it will be necessary to fully understand the position of the UK in global politics and, in the second place, this understanding will, give way to a more accurate representation of the political, international impact of re-introduction of Capital Punishment to the UK.

Part One: The Legal Effects of the Re-introduction of Capital Punishment

1.1 History

1.1.2 The early days – reducing the scope of the offence

The first death penalty reforms were introduced by Samuel Romilly in 1808, who sought to remove this form of punishment from over two-hundred various crimes. These crimes were referred to as England’s “Bloody Code” and included such offences as remaining in the company of gypsies for a minimum of one month[1], the vagrancy of soldiers and sailors[2] and ‘strong evidence of malice’ in children ranging between the ages of seven and fourteen years. Following this early era of reform the early 1830s saw the removal of the penalty for petty crimes such as shop lifting, sacrilege and the theft of mail. The emphasis at this time was a clear campaign to remove the disproportionate trends of the criminal justice system.

The result of these reforms did however reveal a higher instance of convictions but it is widely held that poverty and starvation were an additional contributing factor to the occurrence of these lesser crimes[3].

The reforms continued through to 1843 with the removal of gibbeting, which entailed the public display of the executed dead in cages and, finally, by 1861 the death penalty remained for only four separate and serious offences, which were murder, arson in royal dockyards, piracy with violence and, treason[4], of which the latter two crimes continued to carry the death sentence until the enactment of the Crime and Disorder Act 1998.

1.1.3 Limiting the mode of execution

As well as limiting the number of crimes that fell within the scope for the death penalty, the methods of execution were also reduced. In 1868, public hanging was outlawed[5] and the punishment of being hung, drawn and quartered was condemned to the history books in 1870[6].

By the start of the 20th century the compulsory form of death for murder was hanging.

1.1.4 A picture of the early 20th century dilema

There did however exist the discretion of the jury to aid the ‘recommendation to mercy’ but this was fully reversible by the Home Secretary[7]. Further to this, appeals in the Court of Appeal were to be heard only once and only for the points of law that had amounted to the prima facie case for conviction. House of Lords appeals were strictly allowable at the exclusive discretion of the Attorney General who was to decide whether the particular case involved significant points of law that merited further examination[8]. The result of any successful appeal was the reduction of sentencing to that of life imprisonment but the Home Secretary did later obtain the power to obtain the opinion of a medical panel to determine the mental capacity of the condemned offender[9].

1.1.5 After the world wars

The issue of controversy over the death penalty did not once again grab full media and political attention until after the end of the second world war, when capital punishment became a focus of the British media[10]. The delay in reform was of course a direct result of the suspension of legislative reform that took place during the war, and was the ultimate reason for the shelving of the original 1938 Commons vote to abolish the death sentence over an experimental period of five years[11]. Following the war there were in fact a number of lobbies both for and against the death penalty as well as overall concerns over the innocence of many of those condemned to die. To date, since 1945, there have been three posthumous pardons for Mr Timothy Evans in 1966[12] and Mahmood Mattan and Derek Bently in 1998[13].

1.1.6 The emergence of new but flawed limitations to Capital Punishment

In 1948 the then Labour Government created the Royal Commission on the death penalty but it was not until the election of the Conservative Government when a true legislative compromise was introduced in the form of the Homicide Act 1957. This act was in fact a direct result of the gross miscarriages of justice that had taken place in the years since the war and acted to reduce the scope of the sentence to a mere six kinds of murder. The first was murder executed in the furtherance of theft, followed by murder as a result of shooting or causing an explosion. The third scenario was murder carried out within the course of resisting arrest or while attempting to escape. The fourth and fifth was the murder of a police officer or prison officer while in prison and finally, the sixth murder charge that carried the death penalty was when there were at least two murders on separate occasions.

It is clear that the ethos behind this restriction was to reserve the most profound of sentence to the most acute and extreme manifestations of the crime of murder, thereby theoretically condemning to death those few criminals who were deemed to deserve to die[14].

There were however three problems associated with this so-called compromise. In the first place, while this rationale was a step up from the carte blanche capital punishment of all murderers it is clear from analysis of the selected forms of death bearing murders that there was no justifiable reason for such a profound distinction between murder by stabbing and murder by gunshot wound. Secondly, the ultimate flaw here was that the distinctions were wholly based on the actus reus of the crime and not on the mens rea with the result that, in order to avoid the death penalty, perpetrators would become aware of the law and choose their method wisely. Thirdly the provisions of the Homicide Act 1957 did absolutely nothing to curb the suspicions of miscarriages of justice that remained for such cases as that of James Hanratty, who was executed in April of 1962 for shooting Michael Gregsten[15].

Finally, the last executions in Britain, which were of Peter Anthony Allen and Gwynne Owen Evans took place in August 1964 who together murdered John West while robbing his home earlier in the same year.

1.1.7 The abolishment of Capital Punishment in the UK

In 1965 Sidney Silverman produced his private members bill that proposed a five year trial for the abolishment of the death penalty, which was indoctrinated in the Murder (Abolition of the Death Penalty) Act 1965. A further vote in 1969 in the House of Commons sealed the fate of the death penalty in Britain as it slipped into the history books and was abolished for good. This status followed in 1973 in Northern Ireland and neither portion of the British Isles have looked back since.

1.1.8 Since Abolishment

While there have been more that ten attempts to reintroduce the death penalty in the UK, the last pre-Human Rights Act, Commons vote for hanging as a result of shooting a police officer on duty resulted in a 197 majority in favour of continued abolition. In addition to clear political favour against hanging, there are a number of high profile cases that, since the abolishment of the death penalty, would have resulted in death by hanging but were later revealed to have been gross miscarriages of justice of which the Birmingham Six is one of the most notable examples.

Until the enactment of the Crime and Disorder Act 1998, the death penalty remained in force for treason and piracy with violence although at no point in the time since the abolishment for murder were these sentences ever carried out. Finally, sovereignty over the matter of the death penalty was officially removed in 1999 when Jack Straw signed the Sixth Protocol of the European Convention of Human Rights and in 2002, the Thirteenth Protocol was also signed. The full effects of this are set out below in part 1.2.

1.2 Effects of the Human Rights Act 1998 and the ECHR

1.2.1 Relevant Provisions of the ECHR, Identifying the relationship between the original convention and further human rights provisions.

1.2.1.1 The general applicable provisions

The preamble of the ECHR (European Convention on the Protection of Human Rights and Fundamental Freedoms) states that signatories:

"reaffirming their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other hand by a common understanding and observance of the human rights upon which they depend; being resolved, as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration…"

The concept of a foundation for justice and peace, as is stated above and was written in 1950, did not at first encompass abolishment of the death penalty but this changed with the enactment of the sixth protocol, which directly concerns the abolishment of the death penalty as an extrapolation of the more general provision under Article 2 of the Convention and stipulates the basic right to life. Article 2(1) states:

1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”

It is this breadth of wording that facilitates both wide interpretation and, in relation to the right to life in particular, a wide scope for discretion to exclude or include issues based solely on the political climate of the day. Indeed, at the time of the assignation to the ECHR in 1951, the campaign for the abolishment of the death penalty did not gather huge momentum in light of this provision.

1.2.1.2 The Addition of formal, specific ratifications on the abolishment of the death penalty.

Jack Straw MP signed the 6th protocol of 1983 on January 29, 1999, in which Article 1 states that:

The death penalty shall be abolished. No one shall be condemned to such penalty or executed.”

While the provision is extremely clear cut on this basis, there was an exception provided for under Article 2 of Protocol 6, which provided that:

“A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions. The State shall communicate to the Secretary General of the Council of Europe the relevant provisions of that law.”

The exception to the death penalty abolishment to times of war was repealed following ratification of Protocol 13 in 2002, which came into force on 1 July, 2003.[16] This therefore made it also contrary to the European Convention to legislate for lawful capital punishment during times of war.

1.2.1.3 The overall impact of ratification of specific death penalty provisions

Prior to enactment of the Human Rights Act 1998, ratification of the ECHR alone meant that recourse could only be had to it when raised at the European Court of Human Rights in Strasbourg. In relation to Articles 8 on the right to privacy and Article 14 on the prohibition of discrimination, there is a myriad of case law on this point, some of which was successful such as P v S & Cornwall County Council[17] on the coverage of gender reassignment as falling within the scope of Article. However some cases did fall prey to the overtly wide provisions of the ECHR and failed. An example is that of Grant v Southwest Trains Ltd[18] in which it was held that the definition of ‘sex’ under the provision of Article 14 did not encompass sexual orientation.

With regard to the 6th and 13th Protocols, there exists no such danger of judicial discretion in the exercise of provision interpretation for the simple reason that the wording of these annexes are sufficiently precise to ensure that all signatories to these protocols will harbour citizens who may consciously rely on the provisions under EU jurisdiction.

It will however be shown in part two that, despite this misgiving, there is a further political tool for the inclusion of abolition of the death penalty at European level, which is that indoctrination facilitates the use of this policy as a condition of EU Membership. It is in precisely this area that Turkey is having severe setbacks on their journey to EU Membership, and this is set out below under Part 1.4.

1.3 Comparison with the USA the need to repeal the human rights Act

1.3.1 Brief Background of the legal circumstances that permit the death penalty in the USA.

1.3.1.1 Judicial interpretation of the Eighth and Fourteenth Amendments – Furman v Georgia[19]

The death penalty in the USA is constantly debated on account of there being heated disagreement over whether or not Capital punishment is caught by the Eighth Amendment, which states that:

“Excessive Bail shall not be required, nor excessive fines imposed nor cruel and unusual punishments inflicted[20]”.

The Fourteenth Amendment (Section 1) is also relevant for the consideration of applicable Constitution provisions that regulate the rights that are affected by the imposition of the death penalty. This states that:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities o citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.[21]

In 1972, the case of Furman v Georgia[22] it was held that the imposition of the death penalty did amount to ‘cruel and unusual punishment’ that contradicted the Eighth Amendment and was also a moral affront to the perceptions of justice by the American people. Justice Brennan remarked that:

“Today death is a uniquely and unusually severe punishment. When examined by the principles applicable under the Cruel and Unusual Punishments Clause, death stands condemned as fatally offensive to human dignity. The punishment of death is therefore "cruel and unusual," and the States may no longer inflict it as a punishment for crimes.[23]

In relation to the Fourteenth Amendment, it was successfully argued that the obvious disparity in the provision of adequate legal advice was a clear cause of depravity of due process. The crux of the argument on this matter surrounded the fact that the rich would be able to afford the best legal advice, the poor would be provided with the best legal advice and the middle classes would receive little aid and with their more modest financial resources, were able to afford counsel, although not the best.

1.3.1.2 Reinterpretation – Gregg v Georgia[24]

The decision of Furman v Georgia was however overturned in Gregg v Georgia[25] in which Justice Brennan maintained his stance and dissented. The judgement was however split eight to three, and of those who lent a hand to re-impose the death penalty it was stated that the Georgian law on the matter did not impose a cruel or unusual form of punishment as the death penalty in general constituted a form of retribution that would not be against the morals of the American people and that arguments against its effects as a significant deterrent were deemed to be inconclusive and therefore, unreliable. With regard to retribution, Justice Stewart quoted from his own concurring opinion in Furman v Georgia, in which he stated that:

“The instinct for retribution is part of the nature of man, and channelling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they "deserve," then there are sown the seeds of anarchy -- of self-help, vigilante justice, and lynch law[26]

As retaliation to the above notion of anarchy, Justice Stewart quoted from the dissenting answer by Justice Powell, who said that in relation to anarchy:

“Retribution is no longer the dominant objective of the criminal law,[27]” but neither is it a forbidden objective, nor one inconsistent with our respect for the dignity of men[28]

With regard to the accusation of breach of the Fourteenth Amendment, the Georgian statute was deemed to have been precise enough to prevent the capricious and arbitrary application of the death penalty on account of there being specific guidelines for the jury on the matter of deciding the case. On the basis of this argument is was therefore held that there was adequate ‘due process’ that would prevent the death sentence from falling foul of the Fourteenth Amendment. On this matter, Justice Stewart stated that the Georgian Statute:

“…focus(es) the jury's attention on the particularized nature of the crime and the particularized characteristics of the individual defendant. While the jury is permitted to consider any aggravating or mitigating circumstances, it must find and identify at least one statutory aggravating factor before it may impose a penalty of death. In this way, the jury's discretion is channelled. No longer can a jury wantonly and freakishly impose the death sentence; it is always circumscribed by the legislative guidelines…[29]

1.3.2 Commentary of the Re-interpretation in Gregg v Georgia[30]

GreenhalghÙ­ states that there are two problems with this interpretation of Amendments in Gregg v Georgia.[31] Firstly, the opinions of the concurring judges weakly distinguished the prohibition of cruel and unusual punishment in the Eighth Amendment with the death penalty on the basis of the mode of execution. Recently, Georgia has abolished use of the electric chair and now only the lethal injection is the acceptable mode of execution that may be carried out in this State[32]. However, the method of execution continues to be the wrong focus for the ascertainment of Criminal Justice and the Supreme Court fully failed to argue that the deprivation of life or punishment, where the result is actual death, was both cruel and unusual. The method of execution is therefore irrelevant and need not have been dissected as a point of distinction in law[33].

Secondly, Greenhalgh continues by stating that there was equally wrongful focus on the determination that due process under the Fourteenth Amendment was fulfilled on the basis of ten aggravating circumstances that were to correctly guide the jury. There was equally inadequate examination of the argument over ability to afford the better counsel for the defence[34], as well as complete disregard for the issue of race disparity on death row[35]. The correct path to have taken was that due process is never fulfilled where counsel for the defendant is faced with the task of saving a man’s life every time he acts within his duty in a capital offence trial. Further to this, due process is equally flawed where the prosecution is set the task of persuading the jury to condemn the defendant to death. The argument here therefore, is that, in non warlike scenarios, and where self defence does not enter the equation, no one should be required to engage in the facilitation of involuntary killing as part of their career.

There is also a second argument, namely that due process extends beyond the trial and continues throughout the sentence so that appeals may be lodged where new evidence comes to light. Senator Patrick Leahy of Vermont stated in 2001 that he was greatly concerned over the fact that, since 1976, 85 prisoners on death row were exonerated on the basis of new evidence and that a number of these had occurred only days before execution[36]. He asserts that the issue is not one of a mere state or two, but is nationwide, thereby making academic analysis of the US system an ideal national focus as opposed to mere State-to-State comparison. The Senator states:

“The appalling number of exonerations, and the fact that they span so many States—a substantial majority of the States that have the death penalty—makes it clearer than ever that the crisis I spoke of last year is real, and that it is national in its scope. This is not an “Illinois problem” or a “Texas problem.[37]

Clearly, for those that are exonerated after death, there is utter futility and pointlessness with the exception of empty and shell like, posthumous dignity. In order to combat this, the Innocence Protection Act was passed in 2001 with the aim of:

“…reducing the risk that innocent persons may be executed. Most urgently, the bill would afford greater access to DNA testing by convicted offenders, and help States improve the quality of legal representation in capital cases.[38]

This is once again an attempt to gloss over the deprivation of due process that is taken at the point of death and is clearly a savage desire to retain the death penalty to the expensive extent to installing legislation for the purpose of ensuring as fair a trial as possible.

1.3.3 Comparison with the ECHR – The requirement to abolish the Human Rights Act 1998

Like the wording of Article 2 of the ECHR, the scope of meaning for the vocabulary of both the Eighth and Fourteenth Amendments is utterly imprecise. This therefore allows for the common but unannounced practice of reverse judgement whereby a decision is reached prior to the submission of counsel for both the prosecution and the defence and ratio are devised in order to justify he finding in law.

However, unlike the ECHR, there is no express prohibition of the death penalty, as located under protocols 6 and 13 to the Convention, which means that the whole question of abolishment lies in the exclusive hands of the Supreme Court of the United States. Therefore, as a matter of jurisdiction, the Supreme Court is set the task of independently interpreting the Constitution, whereas the EU has made it perfectly clear that this issue is far too profound to be considered judicially.

1.3.4 Is the UK’s only recourse to repeal the Human Rights Act?

The result for the UK is therefore clear and repeal of the Human Rights Act 1998 would be wholly necessary in order to re-introduce the death penalty. This is explained in more detail under part 1.4 in relation to the full spectrum of legal requirements and consequences of re-introducing the death penalty in the UK.

1.4 The legal Consequences for Britain as an EU Member State and the Current Turkey Situation

1.4.1 The Legal Consequences for Britain

The standpoint of the EU on the concept of the death penalty is outwardly precise and any attempt of the UK to introduce this form of sentencing would cause a direct breach of protocol 13, thereby going against the policy under the s 3 (1) of the Act, which states that all legislation is to be read as being in accordance with the provisions of the ECHR. The enactment of incompatible legislation would fall foul of investigation by the House of Lords, who would be entitled under s 4 of the Act to decree that such legislation is incompatible. Hypothetically speaking, should the House of Lords decide not to take this step, private individuals would be entitled to seek recourse to the European Court of Human Rights in Strasbourg by pleading Protocol 13 outright and winning by a unanimous judicial decision on account of the UK ratification of this amendment to the ECHR.

If the UK were to repeal the entire Human Rights Act 1998, this in its own right would pave the way for a direct violation of Article 1 of the ECHR, which was ratified by the UK in 1951 and states that:

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.[39]

This too would be taken to the European Court of Human Rights[40] and again, the UK would be warned that failure to repeal any new Capital Punishment legislation would result in breach of the ECHR, thereby directly violating Article 6(2) of the Treaty on the European Union, which states that:

“The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.”

Therefore, in essence, if the UK is truly determined to re-introduce the death penalty, they would have to take the drastic step of leaving the EU.

1.4.2 A further demonstration of legal consequences – Turkey’s campaign for EU Membership

The requirement to leave the EU in the event of re-introducing the death penalty is further demonstrated by the fact that the legal obligation for EU Membership entails the need to adhere to European Law and ratification of the Treaties, which in their own right, also specify that any country may join.

However, in addition to this, the 1993 EU summit in Copenhagen set out in the Copenhagen Criteria[41], specific conditions that would need to be satisfied in order to join the EU. There are four such criteria of which three are largely political in nature. The one and only legally based criteria is a proviso to the reception of EU law, which states that the candidate countries must have the requisite administrative infrastructure that would be able to uphold and utilize EU Law.

The regular progress report of November 8, 2000[42] for Turkey showed that by that year, protocol 6 had not yet been signed and the death penalty had therefore still not been abolished[43]. The European Commission did however acknowledge that the de facto moratorium of 1984, to carrying out the process of abolishing the death penalty had been adhered to. An example of the positive behaviour during this time was the promise of stay of proceedings for the prisoner Abdullah Öcalan, who was the militant leader of the Kurdish organisation, the PKK. This is discussed further in part two in a political context.

By the time of the most recent 2004 Report[44], Turkey has now in fact abolished the Death Penalty and did so in 2002 by signing the Sixth Protocol. Further to this, on January 9th, 2004, Numar Hazar, as Turkey's permanent representative of the Council of Europe, signed Protocol 13 in Strasbourg[45]. This therefore means that Turkey now outlaws the death penalty both in and out with peacetime and the country is well on its way to developing the legal structure that is necessary for EU Membership.

1.5 The legal effects of international law treaties – A ‘Contrast’

By contrast to the European Convention for the Protection of Human Rights and Fundamental Freedoms, international treaties do not carry the same bite and are not immediately reprehensible against in the event of breach. There is however an hierarchy of provisions, which are best described in descending order of rank.

1.5.1 The 1948 Universal Declaration of Human Rights

During the direct aftermath of the Second World War and the Nuremberg Trials, the newly founded United Nations drafted and passed the 1948 Universal Declaration of Human Rights. This document expresses international recognition of the guarantee of equality for all individuals. The contents of the declaration are themselves very much aimed at anti-discrimination and this is most clearly expressed in Article 2. However, in terms of the death penalty, there are two reasons why this specific declaration is not helpful. Firstly there are two useful sources of language for the death penalty. The first is the right to life under Article 3 and the second is Article 5 which states that:

the right not to be tortured or subject to any cruel, inhuman or degrading punishment [46]

However, pro-capital punishment lobbyists would argue that there is nothing in the declaration that prohibits retribution and that therefore, the right to life can be forfeited in extreme and justifiable circumstances[47]. Further to this and in contrast, anti-capital punishment lobbyists argue that torture and degrading punishment are integral to punishment by death, regardless of the reason[48]. Interpretation is therefore a question of discretion.

The second reason why the Universal Declaration is not useful is that, as an international agreement, assignation to it is wholly voluntary and, as will be shown below in relation to global political influences, super powers adhere to international agreements as and when they choose to do so but the feeling of obligation is wholly absent.

1.5.2 The 1966 International Covenant on Civil and Political Rights (ICCPR)

1.5.2.1 The Relevant Provisions

The ICCPR[49] marks the official view point of the international on the subject of the death penalty. Article 6 is a clear plea for States that continue to practice the penalty to abolish it outright. Further to this, Article 6(6) the ICCPR provides for the prohibition of action that would:

“…delay or…prevent the abolition of the capital punishment by any State Party to the present Covenant.[50]

With regard to the nature of obligations that must be adhered to by those States that ratify the ICCPR, the single requirement is for the limiting of the death penalty to only the most heinous of crimes[51]. Interestingly, paragraph 7 of General Comment 6 to the ICCPR also provides exception to the use of the penalty where there is maintenance of due process via trial safeguards, the right to review and the possibility for those condemned to death to seek a pardon or commutation of sentence to that of life imprisonment or less.

A further obligation was introduced in 1990, which is the Second Optional Protocol to the International Covenant on Civil and Political Rights. Rather than setting out to politely ask States to abolish the death penalty and set out limitations for those who do not, the Second Optional Protocol aims to actually abolish the practice altogether. The preamble of the Protocol is clear on this matter and states that the death penalty:

‘Contributes to enhancement of human dignity and progressive development of human rights.’

The Protocol continues in Article 1 by demanding the cessation of the death penalty and the adoption of all possible measures that would facilitate. By comparison to the Thirteenth Protocol of the ECHR, the ICCPR continues to allow for the use of the death penalty in times of war:

‘Pursuant to conviction for a most serious crime of a military mature committed during wartime.[52]

This reservation does at least have to be notified to the United Nations’ Secretary-General at the commencement and end of any period of war.

1.5.2.2 The Legal Effects of the ICCPR on the UK

In December 1999, the UK ratified the Second Optional Protocol, which means that any re-introduction of the death penalty would result in a direct breach of International Law. Therefore, in accordance with Article 41(1) of the ICCPR, another signatory State, such as France, would be able to remit a report in accordance with Article 41(1)(a), to the governing body of the ICCPR, which is called the Human Rights Committee[53]. The report would express grievances as to failure of the UK to ensure that steps are carried out to abolish the death penalty, which are in accordance with the Second Optional Protocol. If the matter is not resolved, an ad hoc Conciliation Commission will be set up to consider the issue in accordance with Article 42(1)(a) and the results of this will be remitted to the UN within an annual report[54] who could then see fit to place the matter into their own hands.

1.5.2.3 General Contrast

Despite the precission of vocabulary, the ICCPR is, after all, an optional obligation for UN Member States. The result of this is that countries that are not entirely against the death penalty simply need not ratify the Second OPTIONAL Protocol.

There is however also a political contrast between the written laws of a nation and international treaties, which is that superpowers will do as they please. This is demonstrated by the declaration of war on Iraq without the execution of permission via a UN Security Council Resolution. A further and far earlier example is demonstrated by President Truman’s statement that saw the formal recognition of Israel as an indepentent State by the USA. This was again a blatant move that vehemently ignored UN protocol[55]. The result of a history of defiance from the USA and the king making actions of the UK over Iraq only facilitate to weaken the strength of the entire International Law concept and the integrity of the reason for the existence of the UN. As will be shown in relation to the UK in Part Two, this kind of behavour seriously damages the image of States on the international, political scene.

Part Two: The political effects of the re-introduction of capital punishment

2.1 Internal Politics

2.1.1 The unwritten constitution, consequences and safeguards

2.1.1.1 Consequences

Without a formal Constitution, there is no higher UK law that carries with it a stringent procedure for amendment or repeal and the reason for this is that the UK Government’s political policy is to never bind a future Government[56]. This therefore means that the Human Rights Act 1998, which has become a vital artery of the unwritten[57] UK Constitution, could nevertheless be repealed by the conventional passing of a new Act.

2.1.1.2 Safeguards

There is however the political consideration of convention, which despite being wholly a matter of non-obligatory self-governance[58], will remain as a virtually solid reassurance of the promise of permanency for the Human Rights Act 1998. The potential for amendment will therefore only ensue where the purpose will be to enhance as opposed to reduce the protections under it.

2.1.2 The power of the majority viewpoint

However, politics are, by definition, defined by the majority and are always liable to change as the unending cultural journey of social perceptions of right and wrong constantly alter. In years to come it is highly likely that the current political climate will be known as the era of Human Rights and in the UK this time is at the very of core of reforms that took Human Rights from the unwritten to the written medium. Milton[59] argues that the last eight years in which New Labour has maintained the role of Government was a frenzied revolution in the area of public law that is now slowing down. The highlights of this heightened political activity were no doubt at their utmost peak during the passing of both the Human Rights Act 1998 and the Scotland Act 1998, which saw the re-creation of the Scottish Parliament. Unfortunately, controversy over the spending habits of the MSPs, as well as the outrageous cost of the pretentious Scottish Parliament[60] are backlashes that, in their own right, have weakened the integrity of New Labour’s restructured internal political system. Again Rowe, as a Conservative MP, is eager to press the point that devolution was a publicity stunt and establishes this by pointing out that the Scotland Act 1998 specifies an acutely limited spectrum of independent powers for those MPs who represent constituencies north of the border.

2.1.3 Predicting the Future of British Human Rights Policies – Are there any potential impacts for the death penalty?

It is therefore clear that this weakening of public confidence in public law reforms by Labour has abruptly placed constitutional reform onto the back shelf of manifesto policies and we should be in no doubt that a written UK constitution is not going to appear any time soon. However, whether this means that the Human Rights concept will become a matter of mere later 20th century, early 21st century buzz word is yet to be seen. The Human condition’s fickle notion of morality will play a huge role for the future of the Human Rights concept but it is imagined that only a political upheaval of monumental proportions would be capable of dislodging it from its indoctrination in law. In relation to the death penalty, the British stance on this form of punishment has a domestic history that is far older than the British journey through Human Rights. This therefore means that regardless of the stance that internal politics may take in the future with regard to Human Rights, the continued illegality of a death penalty will no doubt outlive this concept should subsequent regimes deem it obsolete. Further to this, UK internal and EU policies are matched on this point and the political significance of this is explained below under Part 2.2

2.2 The European Policy – The Relationship with the UK and the political journey of Turkey.

2.2.1 Political Motivations for the UK’s ratification of the 6th and 13th Protocols of the ECHR – The impact on sovereignty

2.2.1.1 Political Motivations

The UK’s current modest role as a player in European politics, by contrast to its imperial history as the leader of vast colonies, has been weakened by profound opposition to Iraq from other EU Member States. However, the UK displays clear allegiance to EU political policies by virtue of ratification of the ECHR, but can it be said that such ratification represented any strong move to surrender sovereignty?

2.2.1.2 The impact of ratification?

It is crucial to contemplate the ratification by Britain to the 6th protocol as late as 1999 by contrast to the execution of the provision by the EU 1983. Perhaps the reason for this delay was due to the fact that Britain had already abolished the death penalty earlier in 1965 and any subsequent affirmation by ratification to an EU Convention amendment would constitute a mere formality. This argument fits in extremely well when contemplated with the New Labour Government’s campaign to radically change the face of UK public law with the introduction of the Human Rights Act 1998. Clearly, by signing Protocol 6, the UK was making a positive move to deliberately incorporate it within the provisions of the 1998 Act as well as create a strengthened allegiance with the EU. It is therefore no surprise that the subsequent ratification of the Thirteenth Protocol took place in 2002 under the same Government with the same pro European policies.

2.2.2 The further function of the ECHR - Creating a political entrance test of allegiance to Human Rights – Turkey’s Ongoing Journey

2.2.2.1 The significance of the Copenhagen Criteria

Part 1.4 gave a brief overview of the legal side of the conditions for entry into the EU. In addition, the Copenhagen Criteria also sets out slightly more political requirements that are to be satisfied in order to successfully enter the EU. There are two politically orientated conditions, of which the first is that the candidate for EU membership must have a stable political infrastructure and institutions that guarantee the maintenance of democracy, adherence to the law, human rights and the protection of minority groups within their boarders. The second is that the country must have a functioning economy with a clear ability to handle the competition that is rife within the EU[61].

2.2.2.2 The effect of Copenhagen on the ECHR – Considering Turkey

While it is true that the main reason for the Protocol 6 amendment was in order to reflect the growing opposition to the death penalty across the EU[62] (EEC in 1983) it has developed a further far more crucial role. As strict doctrine of European law, the ECHR, including Protocols 6 and 13, are Convention provisions to be adopted by future EU Member States as a compulsory condition to their entry into the EU itself. However, further to this, the EU may intervene prior to Membership status where the applicant State is already a signatory to the ECHR. In November 1999, the European Court of Human Rights requested that Turkey defer the execution of Mr Öcalan so that the European Court would have the opportunity to examine the merits of Mr Öcalan’s complaints under the ECHR. This request was granted two months later in January 2000 until the end of ECHR proceedings. However it was generally felt at the time that this was a tightrope for the Turkish Government who would have been keen to seize the opportunity to demonstrate their intended allegiance to EU law but would have been aware of the political pawn that they had created with this criminal.

2.2.2.3 Turkey’s Current Political Climate – The possibility of positive influence of legal and political reform for European integration

As stated above, Turkey is, in legal terms taking progressive steps in order to fall in line with EU Human Rights policy. Unfortunately, this move is arguably an interesting insight into reverse legal evolution that could have a devastating effect for Europe. What is meant by this is that, as illustrated by part 1.1, the history of UK reforms that eventually led to the abolishment of the death penalty were self imposed commitments to a humane criminal justice system, influenced by the changing social and political climate. By contrast, Turkey is carrying out the legal revolution before there is the requisite political climate in its population that would demand such alterations. This is made clear by the grizzly fact that English printed news papers in the larger cities such as Istanbul and the Capital, Ankara, reveal that, on average, there are 5000 honour killings each year in Turkey[63]. The most startling fact is, additionally, that these killings are based not only on defiance of a daughter to marry the man chosen by her family, but this extends also to women seeking an education prior to marriage or independent employment for the purpose of personal sufficiency.

The revelation of this contrast between the legal reforms in Turkey and their very Middle Eastern based political and social policy represents a deep concern for the potential futility of the subsequent legal reforms. With reference to the current task of examining the political effects of re-introducing the death penalty into Britain, this is a clear affirmation of the natural progression of the fact that the political climate creates complimentary law and this does not work vice versa without causing instability. A clear example of this is also found in Iran where westernisation reforms eventually led to the Iranian Islamic Revolution[64] and the exile of the Sha of Iran, due to a percentage of the population that was not prepared to adhere to the European lifestyle[65].

2.2.2.4 Analysis of the delicate operation in Turkey in light of a potential re-introduction of the death penalty in the UK

While these deep concerns over the effectiveness of law reform in Turkey are very real, it is unlikely that this will have any immediate negative effects on Turkey’s abolishment of the death penalty and ratification of both the Sixth and Thirteenth Protocols. This would however change profoundly if a country as influential as the UK were to abandon EU policy and assume a stance of its own on Capital Punishment. This will be discussed in full in part 2.3.2 in relation to the alterations of international political alliances that would result from re-introduction of the death penalty.

2.3 The alterations of the international political alliances with the UK

On May 10, 2001, the Swedish president of the European Union presented to the US administration its policy on the death penalty.[66] This representation was also, clearly, the stance of the UK in both domestic and European Law. Therefore, any notions of physical backtracking over an internationally upheld policy would lead to profound alterations of the international political alliances with the UK. In total Rowe argues that there would be three distinct alterations for the UK in terms of international allegiance.

2.3.1 A Commonwealth Disaster!

All of the Commonwealth Countries are strongly against the death penalty and this stance was largely created as a result of political influence that originated in the UK itself! Any delusions that the UK might have about a commonwealth following over the death penalty would, in addition, be utterly naïve. As a far more modest country within the political structure of the EU, sudden EU excommunication would have the disastrous effect of leaving the UK out on a limb without the sympathetic security blanket of Commonwealth support, generated either through traditional allegiance or fear.

2.3.2 A Middle Eastern Bond

2.3.2.1 An increased Saudi Arabian Alliance with Turkey

While it is obvious that Turkey is not reluctant to adhere to EU policy, Euro sceptics within the country[67] would no doubt form political alliances with the UK Government and gain strength as a political force that could even lead to reversal of the process to join the EU. The political result would be a tenuous growth in allegiance between the now non EU Member UK and the powerful Middle East via the bridge of Turkey. A certain seeing of political eye-to-eye would additionally halt any hope for political climate reform in Turkey. In essence, the UK could well find a friend in Saudi Arabia but not without a price to pay. The possibility of execution of trade barriers within Europe would place the UK at the mercy of an alternative alliance that would be greatly heightened by the need for oil although this bargaining chip would not be as powerful as it seems and this is explained below.

2.3.2.2 The American big brother

With the USA resources in Texas drying up, the price of oil has increased to unprecedented levels but it is in fact the very mention of the US that would prevent Saudi Arabia from instigating any conditions to pull UK troops out of Iraq in return for supplying oil to the UK. Saudi Arabia effectively owns seven percent of the USA in terms of direct foreign investment[68] but this lucrative economic alliance has proved to be no real bargaining chip over Iraq. Any subsequent UK alliance due to EU exile would no doubt yield the same non-effect on account of the big American brother that would provide the catalyst for quashing any notion of demanding a military withdrawal from Iraq. Further to this, the USA would, with a price, provide pressure for Europe to withdraw any sanctions placed against the UK.

2.3.2.3 Chinese Indifference

There is very little that the Chinese would recognise as highly significant in the re-introduction of the death penalty however, if anything, current barriers to trade into the UK in the form of quotas would no doubt be lifted in order to curb any foreign investment downturns as a result of the re-introduction of the death penalty. This would be done in order to facilitate freer investment between the two states.

2.4 Resultant weakness of the UK’s participation in international politics

The above bargains that would see the European exiled UK would have severely detrimental effects on the UK’s voice over international Human Rights concerns. As far as Greenhalgh is concerned it is extremely likely that, if the USA were to abolish its death penalty and join in on the campaign to remove its use from the face of the Earth, virtually all capital punishment endorsing States would follow suit, albeit for economic reasons[69].

Therefore, in relation to the UK, its part as a major campaigner for Human Rights, especially in the fight against terrorism would be severely damaged and any international representation on the matter would be viewed by other nations as a mere extension of America’s UN contravening campaign. From now on, the marionette doll of the UK would be regarded as a quasi 51st State, both sheltered and controlled by the US. A prediction of the results of the effects of this annexation of the UK to the USA are explained below by comparing with the current political alliance.

2.5 A USA/UK Alliance? – Comparing today with a UK that endorses Capital Punishment

2.5.1 The UK and the USA today

In terms of current politics, there are three separate scenarios that illustrate the allied relationship between the UK and the USA. In the first place there is the UK stance on the Kyoto protocol, which is in stark contrast to that of the USA. In fact, pressure is being asserted from the UK and other Kyoto adhering countries to persuade the US that they are making a grave error of judgement in maintaining that CO2 emissions are unrelated to the greenhouse effect[70].

The second scenario, which differs profoundly from that of the former, is of course the campaign in Iraq. However, it must be established that there were two common aims in this process. The two countries were politically linked by the oath to combat terror but there was always opposition from virtually the rest of the world due to the fact that, once troops had infiltrated the country, no weapons of mass destruction had been found[71]


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