America is not the only former British colony currently reflecting on capital punishment. However, while much of the talk in the US is focused on a (very) slow move towards abolition, other countries are clamouring for the death penalty.
Given the nature of capital punishment, one might expect the subject to provoke divisions within a country, but for several countries it is not their own political divisiveness that is preventing them from executing people but the legal system of their colonial past.
It may come as a surprise to many American (and British) readers, but for several Commonwealth nations (mostly from the Caribbean and the Pacific) their final court of appeal is not their own ‘supreme court’ but the Judicial Committee of the Privy Council (JCPC) in the United Kingdom. This is effectively the judges of the UK Supreme Court sitting under a different name.
In the days when these countries were part of the British Empire, the JCPC was the body responsible for hearing appeals from any of the empire’s overseas territories. Today the JCPC has two (main) strands to its jurisdiction – it retains its status as the final court of appeal for any of the UK’s remaining overseas territories (e.g. the Falkland Islands); and it offers Commonwealth countries the opportunity to take advantage of the skilled and experienced judiciary of the JCPC for complex cases, which many countries have accepted.
In some of these countries, particularly Trinidad and Tobago, the pressure is growing for those sentenced to death to be executed, mostly because advocates believe that bringing back executions will go some way to halting the huge increase of crime that is plaguing the country. While this kind of thinking is deeply flawed, it is not the subject of this particular article.
What is causing the controversy is that the JCPC is very reluctant to permit any death penalties actually being carried out. There are several reasons given for this, but in essence they stem from two factors.
Firstly, the JCPC often has deep concerns over the safety of the convictions themselves. The police and prosecutors in many of these countries are notoriously bad, with scant regard for procedural safeguards, evidence, or the mental health of the defendant (to name just three issues.)
Secondly, and more controversially, the JCPC has developed a distinct strand of jurisprudence that is very restrictive towards capital punishment. On the face of it, this is not surprising — the last criminal to be sentenced to death in the UK was executed in 1964 — and since then the UK has steadily abolished the death penalty for all crimes. The impact of this jurisprudence has been felt across the former territories of the British Empire — from successful appeals against unsafe convictions, to preventing such sentences being carried out, to constitutional challenges against the policy of a mandatory death sentence for murder.
But even for those of us who are against capital punishment, this situation is not without its problems. To begin with, there is an extent to which it is inappropriate for the UK’s highest court to be ruling on matters within countries that have long been independent of the UK. Leaving aside the cost in both money and time to an already stretched judiciary in the UK, there are many who find the imposition of rulings from London too reminiscent of the days when such territories were run entirely by the UK.
On the one hand, courts have always been the protectors of minorities – a check on the ‘tyranny of the majority’ – but on the other hand, it is easy to see why some countries are frustrated that overwhelming public support for the death penalty is stymied by an unaccountable judiciary on the other side of the globe. While some may applaud the prevention of the death penalty whatever the method, it would clearly be preferable if such countries could abandon the death penalty of their own accord.
There may yet be some hope for such an outcome. Several countries have stated their intent to abandon the JCPC for the new (and technologically advanced!) Caribbean Court of Justice (CCJ), although mostly in the hope that they will be allowed to execute people again. However, there is no guarantee that the CCJ will prove any more sympathetic to the death penalty. For one thing, the common law authority that holds up many of the JCPC’s decisions will still be viable and persuasive. One example of this is Uganda’s rejection of mandatory death penalties for murder following JCPC jurisprudence, despite no longer belonging to the JCPC’s jurisdiction. More importantly, it is highly unlikely that any court worthy of the name would permit the death penalty in cases where the conviction is so unsafe, as is unfortunately the case in so many cases in many of the countries in question.
It may be less crowd-pleasing than “bring back the rope”, but if such governments truly wanted to cut crime and punish the guilty then they would be advised to spend more time improving the quality of the police and prosecuting services than on greasing the gallows.
- The Death Penalty Project – Human Rights Litigation In The Caribbean (deathpenaltyproject.org)
- The global fight to end capital punishment (guardian.co.uk)
- The Judicial Committee of the Privy Council (jcpc.gov.uk)