On the same day the Home Secretary Sajid Javid was revealed to have written to US attorney general Jeff Sessions disavowing the UK’s opposition to the death penalty, the Foreign Office proclaimed in its annual human rights report that the UK opposes capital punishment “in all circumstances as a matter of principle”. While Boris Johnson may have left the Foreign Office, the department has clearly maintained his famous policy of having one’s cake and eating it. Evidently the Home Secretary decided that opposing the death penalty “in all circumstances” actually meant “in all circumstances except some circumstances”.
As well as being incomprehensible, Javid’s stance abandons a long-standing policy position that the UK will not give support to prosecutions overseas without assurances they will not result in the death penalty – whether that support takes the form of extraditing prisoners or providing evidence or information which may be used in such prosecutions. This policy dates back to the famous Soering judgment of 1989, which ruled a prisoner could not be extradited to face execution in the United States.
Despite what the Home Secretary would have us believe, the UK’s refusal to participate in death penalty prosecutions doesn’t stop us helping countries like the US prosecute terrible crimes. It simply means we must seek assurances first that those charged will not face a death sentence. The UK has done this in many cases stretching back decades, and has been successful in receiving such assurances – raising the question of why the Home Secretary didn’t think he needed to bother.
The UK’s opposition to the death penalty is not based on abstract moral principle. It reflects the practical reality that “there is no conclusive evidence of its deterrent value, and that any miscarriage of justice leading to its imposition is irreversible and irreparable”. That’s a direct quote, in fact, from the FCO human rights report which was published on the same day the Home Secretary’s letter came to light.
The UK abolished the death penalty more than half a century ago, after a series of cases that shocked the conscience of the British public and their politicians. Examples included the case of Timothy Evans, who following his execution was proved to be entirely innocent of a murder carried out by his downstairs neighbour; or that of Derek Bentley, held responsible for the shooting of a police officer carried out by his teenage accomplice during a botched robbery.
While such irreversible miscarriages of justice no longer haunt the British justice system, they are ever present in US courtrooms. At least 162 people have been condemned to death in the US, only to be exonerated before their executions. Given the challenges US prisoners face in appealing death penalty convictions, we can only speculate as to the untold numbers of prisoners who were not so “lucky”.
Deterrence is one of the arguments supporters of the death penalty often use, but it is not backed by evidence from around the world. In America, research has shown that the highest murder rates take place in states that carry out 80 per cent of executions. In the north-east of the country – which accounts for only one per cent – the murder rate is lowest. In neighbouring Canada, the murder rate fell 44 per cent in the three decades after the death penalty was abolished.
We should under no circumstances hold up the US death penalty system as a model of effective justice. But that is exactly what the Home Secretary proposed in his letter to the US attorney general, when he suggested that supporting the prosecution of individuals who could face the death penalty would mean they “will be held up as an example of how we treat and deal with alleged Isis fighters”. Once more, this suggests he would like to have it both ways: maintaining the UK’s opposition to the death penalty while using it to set “an example” in any case he deems appropriate.
The Home Secretary’s claim that the US is “the most appropriate jurisdiction” in which to try the two men, who have never held US citizenship, also fails to address the problems US courts have faced in securing successful convictions of those charged with terrorism offences. The prosecution of “high value detainees” held at the Guantanamo Bay facility have been severely complicated by the use of torture and mistreatment. Of the 780 men ever detained at Guantánamo Bay, only five have ever been convicted.
Although the Home Secretary claimed his decision “does not reflect a change in our policy on assistance in US death penalty cases generally”, his actions clearly mean the government no longer believes this policy applies “in all circumstances as a matter of principle”. As the former attorney general Dominic Grieve noted yesterday in the House of Commons, this is in itself “a major departure from normal policy”.
We cannot underestimate the damage the government may do by abandoning Britain’s principled stance. By making an exception to this fundamental principle once, it dramatically undermines our ability to stand up against countries who continue to pursue the death penalty in the future. The Prime Minister should urgently correct this mistake, and make clear to the Trump administration that the UK will not cooperate with the death penalty in any circumstances.