Policy Executive, Secretary to our Criminal Law Committee and Scottish solicitor, Gillian Mawdsley discusses the death penalty, its implications in terms of human rights and abolition in the context of our 70 year history.
Back in in 1949, when the Law Society was in its first flush, a conviction for murder meant a sentence of capital punishment though very often, these sentences were reduced through successful pleas for clemency. Today, for most practising criminal lawyers, it would be hard to envisage prosecuting or defending in cases where the stakes could quite literally, not be any higher. It might be harder still to conceive of the return of the death penalty as we are only too familiar with wrongful convictions, including Timothy Evans, an English case that did much to fuel that sentence’s ultimate demise. Disturbing too is the thought of the ghoulish public attending the courts where reports from before the abolition of the death penalty noted 'more than half an hour before the trial began in North Court… [it] was packed to capacity... a queue assembled outside... numbered about 100 people, who had no hope of getting into court'.
Though no one convicted of murder in 1949 was sentenced to death, in 1950, the death penalty was carried out at Barlinnie on former police constable, James Robertson. He had murdered his lover, Catherine McCluskey. His failed attempt to make her death look like a road traffic accident resulted in his conviction for hitting her on the head with a rubber truncheon and then driving his car with false registration plates over her.
In 2018, there were 59 homicides in Scotland in contrast to 14 in 1948.
In January 1949, the Prime Minister, Clement Attlee set up a Royal Commission on capital punishment under Sir Ernest Gowers to 'consider and report on whether liability under the criminal law in Great Britain to suffer capital punishment for murder should be limited or modified'.
Interestingly, it did not debate its abolition. The Gowers Report, in 1953, recommended its retention unless there was overwhelming support for its abolition. Notwithstanding, changes came with section 5 of the Homicide Act 1957. The death penalty on conviction for murder was now restricted to particular circumstances such as during a theft, by shooting, in an explosion or the murder of police or prison officers. All other murders now carried the mandatory penalty of life imprisonment.
Fast-track to 1965 when the Murder (Abolition of Death Penalty) Act 1965 abolished the death penalty for murder in Great Britain and all capital sentences were then commuted to life imprisonment. A sunset clause (a measure within a statute, regulation or other law that provides that the law shall cease to have effect after a specific date) remained, providing for its expiry on 31 July 1970 unless both Houses of Parliament determined otherwise. Opinion had moved on considerably by 1969 when its abolition was to become permanent. In Scotland, Henry John Burnett was the last person executed on 15 August 1963. Death remained a penalty for various offences such as treason (well-remembered by law students in the course of their early criminal law studies) until it was also abolished for these crimes, by section 36 of the Crime and Disorder Act 1998.
Interest in the death penalty has made a resurgence with 51% and 45% supporting its return in YouGov's 2010 and 2014 polls (respectively) and the current Home Secretary, Ms Patel, stated in 2011 on the BBC’s Question Time: '..I would actually support the reintroduction of capital punishment to serve as a deterrent, because I do think we do not have enough deterrents in this country for criminals.'
What would its return mean for criminal lawyers in Scotland?
As the Rt Hon James Callaghan MP said in December 1969 (Hansard, cols 1168-1169) it would return us: 'to a time when capital punishment lowered the moral standard of the whole community... When society exacts this penalty, it acts on the same level as the murderer himself'.
Its reinstatement would be out of line with countries seeking membership of the European Union or the Council of Europe. 47 countries signed Protocol No. 6 to the European Convention on Human Rights (ECHR), concerning the abolition of the death penalty. EU member states are also signatories to Protocol 13 to the ECHR adopted in Vilnius in May 2002 that bans the death penalty in all circumstances, including war-time; and 13 EU governments will not extradite people accused of capital crimes to countries retaining the death penalty.
The discussions over the death penalty have continued throughout our 70-year history but in my opinion nothing seems to justify its reintroduction, from the absence of evidence to show that it is effective in combating crime, preventing genocide or war crimes to its inevitable conflict with the right to life (Article 8*) of the European Convention in Human Rights.
We can each perhaps think of difficult cases, that may cause us to question our own commitment to its abolition . However, since no human-run justice system can be completely free from error or personal bias, I wonder who would wish to be part of the decision-making process within that kind of a justice system?
We can all pause to reflect on recent murder convictions and consider the implications of the existence of a death penalty within our current system. Our greater knowledge and understanding of mental health conditions, adverse childhood effect, diminished responsibility and abusive control have had a significant effect on contemporary sentencing decisions. Remember that a sentence appeal today would involve a plea to clemency rather than to the extent of any imposition of a punishment part.
We have moved on since 1949 in terms of law and practice to reflect changing social practices and circumstances. I would hope that any of those in favour of the death penalty should have to prove why it should be reinstated as a penalty for the state when it is a right denied to us as private citizens.