Criminal Justice Law Dissertation Proposal

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

An Introduction to Criminal Justice Law

The death penalty for murder was abolished following great demand in the United Kingdom with the advent of Mr Sydney Silverman’s, MP, Private Member’s Bill on 25 October, 1965 and the last executions took place on 13 August 1964 . Remaining active death penalty incursions did however continue to exist for crimes of treason and piracy, as well as a number of offences under military law although no executions actually took place following the reforms of 1965. The civilian residual death penalties were finally removed 33 years later when, on 20 May 1998, parliament voted in favour of the incorporation of Protocol No 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. This then led to the amendment of the Criminal Justice Act for the removal of the death penalty for the crimes of piracy and treason and, in 2001, the Armed Forces Act was amended to fall in line with the United Kingdom’s domestic incorporation of the European Human Rights provisions that are embodied in s 21(5) of the Human Rights Act 1998 .

The concept of reintroducing the death penalty in the UK of course carries multifaceted legal and political effects that make this topic a very interesting area of research. In legal terms, this is particularly true given that, as will be shown below, European and International Law policies are vehemently against Capital Punishment despite US persistence to retain such a sentence and the ways in which such a contradiction can exist presents a key weakness of international law. This piece will therefore present a hypothesis of effects following reintroduction of capital punishment in the less domineering jurisdiction of the UK.

This will require ascertainment of the political jurisprudence of the European Union concept on the subject of capital punishment, since, as an EU member State, European ideology is central to the UK’s modern role in the global climate of post-empire domination. This is also true for the relationship between the UK and the United Nations.

Part One – The legal effects of reintroducing capital punishment to the British Criminal Justice System

1. The effect on Protocols 6 and 13

To illustrate the exactness of EU policy on the death sentence, Article 1 of Protocol 6, concerning the abolition of the death penalty, states categorically that:

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

In addition to this clear communication of the Council of Europe’s stance, Article 4 states that there shall be no reservation of protocol 6 under the auspice of Article 57 of the European Convention of Human Rights (ECHR). The equivalent applies for Protocol 13, only without reservation for allowing the punishment in times of war . Therefore, reintroduction of the death penalty in the UK would constitute a two pronged breach of EU law.

In the first instance, the death penalty statute would breach the Human Rights Act 1998, and of course, the ECHR. This would constitute a breach of s 4(2) of the 1998 Act which prohibits the passing of legislation that is incompatible with the Convention. Therefore, in order for the UK to pass a successful death penalty statute, the Human Rights Act 1998 would require to be repealed. In the second instance, this repeal would in itself constitute a failure to adhere to the required conditions for EU Membership .

2. Comparison with the US Model – explaining the need to repeal UK Human Rights Provisions

Comparison with the United States is crucial at this point as this country has both a Bill of Rights and the death penalty. The clear difference lies in the express prohibition of the death penalty within the ECHR provisions as opposed to the absence of any such undertaking in the US Bill of Rights. It is for this reason that outright repeal of the UK Human Rights provisions is wholly necessary. This is in stark contrast to a mere reinterpretation of the Constitution, as was the case for the Supreme Court in the 1976 moratorium that declared the death penalty to be a matter of individual State jurisdiction after four years of suspension . While this may seem to represent a disadvantage to any pro capital punishment lobbyists, it must be realised that the UK Human Rights provisions do not merit the status of Constitutional provisions, as they do in other States such as the USA and Germany. The result is that, in strict practical terms, the Human Rights statute can be overturned by simply legislating to the effect via the conventional means that Westminster uses to pass regular laws .

3. The Legal Consequences for Britain as an EU Member State

If Britain were to carry on despite the clear breaches of EU law, murder cases would be taken all the way to the European Court of Human Rights and promptly overturned on account of the incompatibility with the ECHR. Britain would be fined for the breach and given a deadline by the Court to remove the death penalty from its new Criminal Justice Act. Further to this, abolition of the death penalty is a fundamental prerequisite to EU membership . In simple terms, Britain would have to renounce membership of the EU in order to uphold a new statute on the death penalty.

4. Contrasting with the legal effects for international law treaties

The UN’s Universal Declaration of Human Rights does not expressly stipulate a prohibition on the death penalty but the stated safeguard of the right to life and the right not to be subjected to cruel, inhuman or degrading treatment or punishment is easily interpreted as a provision that is anti capital punishment. Indeed, this is the stance taken by Amnesty International . However despite this, the legal effect of contradiction of such provisions has proven to be toothless given that the US, as a member of the UN, manages to maintain capital punishment on the narrow basis that the methods adopted for the actual killing process do not constitute ‘cruel and unusual’ punishment. Prokosh of Amnesty International manages to slay this ratio by equating the psychological effects of death row, execution rehearsals and the actual physical assault itself to acts of cruelty and torture .

The US is therefore the great contradictor of International Law on the stance of Capital Punishment.

Part Two – The political effects of reintroducing capital punishment to the British Criminal Justice System

1. Internal Politics. The end of the United Kingdom?

The UK is a devolved political entity and it therefore cannot be ignored that Scotland has an entirely separate legal system. As specified in the Scotland Act 1998, Crime is one area where the Scottish Parliament has obtained independent jurisdiction . If Scotland were to be against the re-introduction of the death penalty, the political rift between these two States would resurface with extreme consequences. As with the Human Rights Act 1998, Westminster does have the power to repeal the Scotland Act 1998 in order to remove the Scottish autonomy on the issue of the death penalty. The result of such a move could easily result in a declaration of independence that would gain infinite support from Europe and other rich, anti-death penalty nations. This would provide Scotland with the economic strength needed to secure confidence to sever from England and prosper as a separate EU member. The result of such a move would of course instil a further campaign in Northern Ireland, only this time it would carry an overwhelming support from the rest of the EU. Even if Westminster were to remain content with a death penalty that is exclusive to England, Wales and Northern Ireland, this vast gap in political policy between North and South, coupled with nationwide injuries to trade, would exert enough pressure for Scotland to sever from England.

2. Contrasting with the International Arena – the resultant alienation of the United Kingdom

2.1 EU Political Policy

The EU has adopted the moral and educative stance for the abolition of the death penalty, since, as well as ensuring total eradication of the death sentence among its Member States, in 1998 the EU also embarked on a diplomatic campaign to influence other nations. The paper written for this campaign constitutes the, ‘Guidelines to European Union Policy towards Third Countries on the Death Penalty ‘ and clearly states that:

‘The death penalty has no place in the penal systems of modern civilised societies…abolition of the death penalty contributes to the enhancement of human dignity and the progressive development of human rights. ‘

The political stance of the EU on the subject of the death penalty is therefore that it must never be a matter of national sovereignty that is made justifiable on ludicrously PC grounds of religion and culture. Instead, abolition is seen as a matter that has to take the level of an international norm .

2.2 The alteration of International political alliances with the UK

The effect of the EU policy contrasting with a pro death sentence policy in the United Kingdom is a clear political alienation from the rest of Europe that would be aggravated with the immediate obligations of EU neighbours of Britain, namely Ireland, Holland, France, and Norway, to harbour and protect asylum seekers who face the threat of death in the UK.

2.1.2 A USA/UK alliance?

The UK as small as it is, would effectively become a dependent of the USA on the international arena. Without the bargaining chip of oil, valuable minerals or a vast military force, they would be at the mercy of the international political community that, with enough passion for the cause, could execute an economic assault involving justified trade sanctions that would be immune to breaches of the multilateral international trade agreements of the GATS and the GATT, as well as the myriad of bilateral agreements that the UK holds with other sovereign states. The USA, it is assumed, would not be a party to such treatment but it is glaringly obvious that any resulting political alliance would be strictly one-sided with the USA having the upper hand on making demands for serious foreign direct investment perks.

2.1.2 The weakening of the UK’s participation in the international fight against tyrannical regimes and terrorism

Regardless of the verbal stance of the USA on the fight against terrorism, the only aspect of their campaign that forces the rest of the world to listen is the sheer size of their economic position in the world. Further to this, the USA carefully targets tyrannical states, such as Iraq, for economic reasons associated with Iraqi oil reserves as opposed to any professed campaign for global liberty, and this is evidenced by the blatant apathy towards the situation in the less valuable Zimbabwe. Regardless of the policies of the rest of the international community on a number of political issues that include, the death penalty, the recognition of Israel as a sovereign state, the Kyoto protocol and Iraq, the USA effectively does what it likes and it does so because it can . The UK would have no such power and consequently, Britain’s efforts in the international campaign against terrorism and political tyranny would loose even more respect than that already sacrificed over Iraq.

Conclusion

The above discussion merely touches upon the legal and political effects that would befall the UK as a result of reintroduction of Capital Punishment. However, analysis at this broad level does reveal two key points. Firstly, the jurisprudential ideology of Human Rights takes second place to the blind eye of international economics in that super powers such as the USA are simply immune to political consequences of breaches of international law. Secondly, the opposite is true for smaller countries such as the UK, which today fulfils the modest role of a liberal EU Member States. The UK’s current position on Human Rights therefore constitutes a voluntary adherence to international standards from which there can be no opting out without severe economic consequences.

Bibliography

Legislation

Universal Declaration of Human Rights (UN)

Scotland Act 1998

Human Rights Act 1998 (ECHR)

Case Law

Gregg v. Georgia (428 U.S. 153)

Jurek v. Texas (428 U.S. 262)

Proffitt v. Florida (428 U.S. 242).

Furman v Georgia (408 U.S. 238)

Textbook Publications

Bennet, H, July 2004, Constitutional and Administrative Law, (5th edn, Cavendish Publishing Ltd) at p 122

Hood. R and Kovalev. S, 2000, The Death Penalty Abolition in Europe, (Council of Europe Publishing, Germany

Mello, M, 1996, Against the Death Penalty, The Relentless Dissents of Justices Brennan and Marshall, Northeastern University Press, Boston

Tuttle, E. O, 1961, The Crusade against Capital Punishment in Great Britain, London Stevens and Sons Limited, Chicago Quadrangle Books, inc

Government Publications

House of Commons, 20 March 2000, Human Rights in the EU, The Charter of Fundamental Rights, Research Paper 00/32 [Online] At: http://www.parliament.uk/commons/lib/research/rp2000/rp00-032.pdf

European Council, ‘Guidelines to European Union Policy towards Third Countries on the Death Penalty’Available Online At: http://europa.eu.int/comm/external_relations/human_rights/adp/guide_en.htm

Articles

Abolition of the Death Penalty’ [Online] At: http://europa.eu.int/comm/external_relations/human_rights/adp/

Capital Punishment in the UK [Online Website] At: http://www.richard.clark32.btinternet.co.uk/abolish.html

Roberts A.J, Case Comment, Death Penalty – United States, Crim. L. R. 2005, JUN, 501-502