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UK Supreme Court justices are hearing death penalty cases

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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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