Tidying away the death penalty

One good reason for not killing the police bill

Protestors seeking to “kill” the Police, Crime, Sentencing and Courts Bill seem not to have noticed that its parliamentary passage has stalled. Although MPs gave the bill a second reading on 16 March, no arrangements have yet been made for its committee stage.

That’s understandable, given the parliamentary timetable. MPs return on 13 April after their Easter break and there will then be less than four weeks before parliament is prorogued ahead of the Queen’s Speech on 11 May.

But the bill will not have to start its parliamentary passage again: MPs have already agreed that it can be carried over to the new session. Perhaps the lord chancellor and the home secretary are using this breathing space to reconsider some of the bill’s public order provisions. We can but hope.

As I wrote three weeks ago, if it had not been for more urgent concerns I would have said something about clause 165 of the bill. That seeks to amend section 16 of the Juries Act 1974, which allows criminal trials in England and Wales to continue after a juror dies or is discharged provided the number of jurors does not fall below nine. Section 16(2) is to be repealed so that it no longer provides an exception for defendants facing “any offence punishable with death”.

Matthew Scott, who writes the authoritative and highly readable BarristerBlogger commentaries, published a series of tweets about clause 165 yesterday. This was his conclusion:

That strikes me as more than a little curious. The only thing section 16(2) did was to give a person facing the death penalty a veto on being tried by fewer than 12 jurors. The prosecution in a capital case could also have insisted on a full jury — and no doubt would have done so if the issue had ever arisen.

Readers may think it even stranger, though, that legislation passed in 1974 should refer to an “offence punishable with death”. Surely the death penalty had been abolished a decade earlier?

Not quite — although nobody has been executed in the United Kingdom since 13 August 1964, two months before Harold Wilson’s Labour government was elected.1

The Murder (Abolition of the Death Penalty) Act 1965 came into force in November of that year. It put the death penalty for capital murder in England, Scotland and Wales2 on hold for five years.3 The suspension was made permanent in 1969.

But the 1965 act abolished the death penalty only for murder. Death remained an available penalty for high treason, piracy with violence, arson in the royal dockyards and capital offences under military law.

Capital punishment for setting fire to a royal dockyard was abolished by the Criminal Damage Act 1971. But hanging was not finally done away with until 1998. Section 36 of the Crime and Disorder Act 1998 abolished the death penalty for treason and piracy. And section 21(5) of the Human Rights Act 1998 abolished capital offences under military law.

That section of the Human Rights Act was repealed by the Armed Forces Act 2006. But the same act amended the 1965 act by removing an exception that had previously applied to service personnel. It was, in other words, a tidying-up provision. And so is clause 165 of the bill currently before parliament.

It is entirely right that the statute book should be cleansed of all vestiges of a punishment that is both barbaric and irreversible. The last attempt to reintroduce the death penalty was defeated in 1994, when MPs voted it down by 403 votes to 159. The former home secretary Michael Howard, now Lord Howard of Lympne, told the Commons he had previously been in favour of reintroducing hanging but had changed his mind because he had come to realise that a system that he previously regarded as infallible could make mistakes.

No minister in the current government could propose the reintroduction of capital punishment. That is because it is government policy that the United Kingdom should remain a signatory to the European Convention on Human Rights, which prohibits the death penalty in all circumstances.

So there is nothing to be gained by retaining section 16(2) of the Juries Act 1974. In my view, it is inconceivable that the death penalty could now be restored in the United Kingdom. I consider it equally inconceivable that a modern jury would convict a defendant facing a capital charge. Most judges these days — if not all — would think the same way.

Maybe you can conceive of drumhead tribunals sentencing rioters to summary execution under martial law. If that ever happens, the last thing anyone will be worrying about is how many people should sit on a jury.

Update: In response to this piece, Matthew Scott points out on Twitter that the bill “could easily have removed all vestiges of the death penalty from the statute book, but it hasn’t done that at all”. He gives the example of the Capital Punishment Amendment Act 1868, which ended public executions. Under section 2,

Judgment of death to be executed on any prisoner sentenced on any indictment or inquisition for murder shall be carried into effect within the walls of the prison in which the offender is confined at the time of execution.

Much of that act, he observes, still seems to be in force.

Again, not quite.

The 1868 act was repealed by the 1965 act “except as applied by any other enactment”. It’s one of the enactments listed in the 1965 act’s schedule of repeals:

That repeal is not immediately obvious because the schedule, and section 3(2) of the 1965 act which gave effect to it, were themselves repealed by paragraph 1 of part XI of schedule 1 of the Statute Law (Repeals) Act 1974 (see page 36 of the printed copy). But the original version of the 1965 act, reproduced above, can be found on the government’s legislation website if you choose “original (as enacted)” in preference to “latest available (revised)”.

What happens if a repeal is itself repealed? Does the original act spring back into life? No. Section 15 of the Interpretation Act 1978 says that

Where an act repeals a repealing enactment, the repeal does not revive any enactment previously repealed unless words are added reviving it.

Sections 16 and 17 of the Interpretation Act put the position beyond doubt.

Where does this leave the 1868 act? As Matthew Scott points out, the highly authoritative and much admired Westlaw database published by Thomson Reuters suggests that most of it is still law:

But look the note at the foot of each page of the act on Westlaw:

Act repealed, except as applied by any other enactment, by Murder (Abolition of Death Penalty) Act 1965 (c. 71), Sch.

So the 1868 act exists only to the extent that it is applied by any other legislation. And is there any other legislation in force that applies the 1868 act? I believe not.

However, Matthew Scott raises an important point. If the 1868 act still exists in some form or other, it should be swept away. It’s quite a while since that last Statute Law (Repeals) Act.

On the other hand, the 1868 act cannot be repealed if it no longer exists. I asked the Law Commission, whose lawyers scour the statute book for unwanted or confusing legislation, whether it was possible for parliament to repeal a statute “to the extent that it remains in force”. They told me they had no immediate plans to invite parliament to do so.

Here’s a much more elegant suggestion from one of my readers:

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1

Most of the information in the following paragraphs is taken from The Abolition of the Death Penalty in the United Kingdom, by Julian Knowles QC (now Mr Justice Julian Knowles), published in 2015 by the Death Penalty Project.

2

The death penalty for murder in Northern Ireland was abolished in 1973 by the Northern Ireland (Emergency Provisions) Act 1973.

3

Sixteen men who were under sentence of death at the time were reprieved.