UK Supreme Court justices are hearing death penalty cases

And it’s not a ‘dirty little secret’

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The United Kingdom’s Supreme Court is one of the most cherished institutes in the country.

Nestled away beneath the towers of Parliament Square, many would say the cornerstone of the court’s work is to uphold British laws and, in the same breath, British values. Yet, Supreme Court justices are hearing death penalty cases.

In their capacity on the Judicial Committee of the Privy Council (JCPC), all eleven of the Supreme Court’s justices hear cases from a number of Commonwealth countries, plus UK overseas territories, crown dependencies and military sovereign base areas. These countries include the Bahamas, Bermuda, Jamaica and Saint Lucia.

A number of these countries still use capital punishment, and the JCPC typically hears appeals on this two to three times a year. Two cases of the sort — namely Lovelace and Hernandez — are currently ongoing.

The first concerns an appeal from Eastern Caribbean Court of Appeal, St Vincent and the Grenadines. Appellant Patrick Lovelace was sentenced to death for murdering a 12-year-old girl in 2010. According to local news reports, the young victim’s naked body was found hanging from a mango tree in an area called London Road.

Lovelace, a former long distance runner, is appealing his sentence. He is arguing he should have been given a term of imprisonment instead. The JCPC is considering the following:

1. Was the Court of Appeal correct to find it lacked jurisdiction to allow the appellant’s application to extend time to appeal his death sentence?

2. Should permission to appeal against the death sentence be granted because it was unlawfully imposed and/or because five years have elapsed since conviction?

Heard on 8 November 2016 by Lord Kerr, Lord Wilson, Lord Reed, Lord Hughes and Lord Toulson, no judgment hand-down date has yet been confirmed.

In the second case, Hernandez, the court is considering whether the death sentence imposed on the appellant is unlawful ‘ab initio’ because of his very low IQ (57) and, as a result, whether his sentence should be reduced.

The appellant was convicted of two murders in Trinidad. Although he originally confessed to the crime, at trial he recanted his confession. He was sentenced to death in 2004.

Lady Hale, Lord Kerr, Lord Clarke, Lord Hughes and Lord Toulson sat on 16-17 May 2016 to hear this case and, like Lovelace, no judgment is expected at least by the end of this term (mid-April).

Though it’s not hard to find information on the JCPC’s death penalty jurisdiction, what’s harder to grapple with is its moral implication. Capital cases being heard in Parliament Square doesn’t quite sit right, with one Legal Cheek commenter going as far as to describe the practice as “our judiciary’s dirty little secret”.

Yet having spoken to a number of experts on this, it seems describing this practice as a secret, not least a dirty one, is perhaps a bit unfair. A JCPC spokesperson, for a start, was quick to make clear the court adopts an open and honest approach, as it does with all its cases. He says:

We publish case details for death penalty appeals in the same way as for any other case, and this material has helped inform award-winning journalism on the subject.

Indeed, James Lee — an academic at King’s College London — points out to us that a number of justices have given speeches about their roles in the JCPC in recent years; hardly a cover-up operation.

Legal Cheek also spoke to Birmingham Law School’s Dr Bharat Malkani on this. A specialist in human rights law and how it impacts on the criminal justice system, Malkani similarly resists claims the JCPC’s Caribbean jurisdiction is kept under wraps. He tells us:

The JCPC has been very open about its death penalty cases. Maybe there should be greater public knowledge on this issue, but I wouldn’t lay the blame for this at the door of the JCPC.

Though the moral implications of this jurisdiction are “thorny” (“it smacks of colonialism”, he says), Malkani can see the good in it too. He told us:

The JCPC has done a lot to restrict the use of the death penalty in these countries and through this is saving lives. It’s great the court can exert its influence over other legal systems and help them develop.

For the foreseeable future at least, there is little to no appetite for the abolition of the JCPC or its death penalty jurisdiction. For now the court rumbles on; so too does its positive influence.

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46 Comments

Anonymous

What a nothing article. Shock horror, the members of the Supreme Court also sit as the Privy Council – something that’s learned on day 1 of constitutional law. May as well also write an article entitled “The Queen-in-Parliament enacts legislation”.

(64)(19)
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Anonymous

Presumably we couldn’t deport to these jurisdictions a person at risk of the death penalty. Yet members of our highest court can rule on their capital cases. Strange.

(10)(6)
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Anonymous

I think I would rather be sentenced to death by the justices than read another of your diabolically poor articles KK.

Your concluding paragraph made me want to eat my own eyes.

(36)(21)
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Paul Magrath @maggotlaw

If people genuinely don’t know about the SC Justices’ residual jurisdiction to hear appeals from commonwealth and former colonial jurisdictions, it is surely not from any want of transparency on their part. The judgments have always been available, and many of them are reported (including by me, for ICLR) in the Law Reports. They are all available on BAILII or at the National Archives. What has changed recently is the move to Westminster Square, and the ease of public access (the open justice) of the Judicial Committee hearings there. Before the move, the court (or the “board”) sat in a room in an unnumbered (actually No 9) building in Downing Street. Though open to the public, it was for obvious reasons far less accessible.

(11)(0)
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Anonymous

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(1)(0)
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Anonymous

Nothing new.

Let’s say someone happened to watch that awful Silks program.

Nearly all of it was bollocks but a death case was heard there.

Sensationalism already been done on this. Slow news day?

(5)(3)
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Need Advice

I’ve been offered a vacation scheme by both Pinsent Masons and Eversheds. The dates clash so I can’t do both. Which one would you (generally) recommend? I feel like the former is more up my street in terms of work culture. I also suspect that I stand a better chance of parlaying their VS into a TC.

(0)(7)
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The Dementor

The hearings of the two cases mentioned were actually video recorded and can be accessed on the JCPC website.

Very open and matter of fact discussions about the death penalty and even the merits of imposing it (Lovelace probably constitutes a “worst of the worst” case and so may well be upheld.)

The interesting difference between these cases and US cases is that our judges have held that if the death penalty is to be imposed, execution should follow swiftly, and that no-one should spend longer than five years on death row.

It’s an interesting example of how capital litigation would probably have evolved if we had kept the death penalty here.

A basic distillation of the Common law position on the death penalty (where it still exists) is:

– It should be reserved for the “worst of the worst” cases.
– It should only be imposed where there is no reasonable prospect of reform.
– Execution should be carried out swiftly when all appeals have failed.
– No-one should spend more than five years on death row.

It’s also the case that in the Carribean, the method of execution is British-style long-drop hanging, whereby the condemned cell is right next door to the cell with the trapdoor, and the condemned is led straight into it and dropped with a minimum of ceremony and delay, breaking the neck and causing instant death. This takes about 15 seconds from beginning to end.

Far quicker and more humane than the ridiculous, drawn out and easily botched lethal injection procedure practiced in the USA.

The scary thing is, a majority of British voters would be happy to see capital punishment return on this basis in the UK because it seems so damn reasonable.

Perhaps the Bradys Sutcliffes and Huntleys of the world should be dispatched quickly and humanely.

Ten years ago Brexit would have been unthinkable- who’s to say capital punishment won’t be debated within the next ten?

(11)(0)
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Gus

The last time the JCPC refused to commute a death sentence was in 2015, so it’s not a foregone conclusion that the colonial whitey masters will save the condemned.

(0)(0)
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Gus

Hardly. Got nothing to do with US Deep South history.

The JCPC puts some of the most stringent safeguards in place for Common Law jurisdictions that exercise their right to retain capital punishment.

Anything but a lynch mob, frankly.

(2)(0)
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Sheldon Cooper

More fun facts for you:

Hanging as practised in the UK and colonies was the fastest and most humane method of execution ever devised, with the added bonus of the lack of bodily mutilation that would accompany equally fast methods such as shooting or the guillotine.

While the Americans devised more “scientific” methods of execution that were actually slower and more drawn out (electric chair, gas chamber and lethal injection), the U.K. refined and perfected hanging so that it was quick, clean and very very fast.

In 1953 the Royal Commission on capital punishment actually considered whether the UK should replace hanging with electrocution, gassing or lethal injection but decided that hanging was better.

(1)(0)
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Anonymous

There’s a Channel 4 drama documentary on YouTube from 2009 called The Execution of Gary Glitter which takes place in a fictional UK where the death penalty has been brought back for murder and sexual offences against children.

In it, Glitter is tried, convicted and hanged. The gallows used in the hanging scene is a real, working gallows in a closed Belfast prison, last used in the 1960s.

Gripping stuff!

(0)(0)
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Dave Barrister

I have never properly put my mind to it, but SC justices making a ruling (while in the UK) which deprives someone else of their life, notwithstanding under the proper application of the laws of a foreign legal system, smacks of a breach of article 2 HRA.

I really cannot see much probative distinction between the above and allowing deportation to a state likely to inflict the death penalty on the deportee…

Food for thought, or perhaps I am missing something obvious.

(1)(0)
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An Barrister

They are in effect sitting as judges of the final court of appeal for the jurisdiction in which the condemned was sentenced, so if said jurisdiction is not a party to the ECHR then it would not be applicable to their territory, and as the justices are not sitting in their UK capacity, then geography notwithstanding there is no breach of Article 2.

For what it’s worth, Article 2 of the ECHR actually permits the use of the death penalty. It is the later optional protocols 6 and 13 that prohibit it.

(2)(0)
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