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The legal and political effects of re-introducing capital punishment into the British Criminal Justice System.
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.
“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Extract from ‘The Heretic’ by Nicola Louise Tysoe (unpublished, copyright Nicola L Tysoe)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)
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.
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, the vagrancy of soldiers and sailors 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.
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, 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 and the punishment of being hung, drawn and quartered was condemned to the history books in 1870.
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. 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. 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.
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. 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. 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 and Mahmood Mattan and Derek Bently in 1998.
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.
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.
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.
1.2.1 Relevant Provisions of the ECHR, Identifying the relationship between the original convention and further human rights provisions.
126.96.36.199 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.
188.8.131.52 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. This therefore made it also contrary to the European Convention to legislate for lawful capital punishment during times of war.
184.108.40.206 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 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 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.
1.3.1 Brief Background of the legal circumstances that permit the death penalty in the USA.
220.127.116.11 Judicial interpretation of the Eighth and Fourteenth Amendments – Furman v Georgia
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”.
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.”
In 1972, the case of Furman v Georgia 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.”
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.
18.104.22.168 Reinterpretation – Gregg v Georgia
The decision of Furman v Georgia was however overturned in Gregg v Georgia 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”
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:
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…”
1.3.2 Commentary of the Re-interpretation in Gregg v Georgia
GreenhalghÙ states that there are two problems with this interpretation of Amendments in Gregg v Georgia. 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. 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.
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, as well as complete disregard for the issue of race disparity on death row. 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. 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.”
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.”
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.
1.4.1 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
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