Tonight, I read an article on www.guardian.co.uk entitled 'The Human Rights Act is a British bill of rights'... It discusses within the fact that Conservative Party- in their manifesto, pledged to get rid of the Human Rights Act 1998 and replace it with a Human Rights that are wholly British made by Parliament and maintained by the Courts...
To those of you who are unsure- the Human Rights Act 1998 was passed so that the UK would become a part of the European Convention of Human Rights & Fundamental Freedoms (ECnHR) which was established in the 50's. By passing the Act, Britain permitted Parliament to bow its head in way of submission to Articles that we have all come to know so well such as the right to life, the prohibition of torture and even things such as the right to private and family life. It also meant that this convention law was now our own law and that a higher court above our own Supreme Court (was House of Lords) could effectively have the last say.
(refer back to blog: Soering v UK to see this in action)
The ECnHR is not a part of the European Union (yes they do share the same word European but never mind)... so for the UK to leave the convention, all they would, in effect, have to do is to repeal the Act of Parliament that says they are part of it. There is no beaurocracy nightmares as if we were leaving the whole of the EU- and those in favour of the EU needn't worry- the UK wouldn't be excommunicating itself from the fold (again).
In fact, it is easy to understand why alot of subjects and might I add, tax-payers might want the HRA 1998 to slip away as quietly as it came, and I found my evidence for this in the comments left by the dear old Guardian readers:
"The H.R.A. has become a tool for criminals and terrorists to avoid atonement for
their actions and or claim loads of taxpayers money in compensation for their
punishment. Its also been used by illegal immigrants to this country to avoid
deportation. Its become a joke"
"I am not an expert but I am aware of one thing. Foreign nationals
currently in the UK, who are either reliably suspected of or guilty of, serious
crime including terrorist activity, cannot be returned to their own countries to
face justice because of the HRA. That needs to change and I will vote
for anyone who will do it."
So perhaps this was a clever trick that every other party seemed to miss when creating their manifestos- "I will vote for anyone who does it."
And when the costs of an average prisoner are far higher than that for a school child- why should the tax payer have to fork out for foreign criminals who fled to England. Through the leniancy and loopholes of the ECHR, the UK taxpayers are essentially footing the bill for murderers etc- where, if they were to return to their own country, would be liable to pay the death penalty or come under degrading treatment.
Contrary to what a few people did comment- Britain did not have a Bill of Rights which protected individuals from the State- the Bill of Rights 1689 was created to protect Parliament and the Magna Carta was to protect Parliament from tyrannical Princes of Old. Yes, these do seem to have worked well enough for now... but what would happen if the rights of UK subjects were to fall into the hands of Parliament?
One comment said it would be a good thing because then the rights could be ammended to suit Britain (and presumably the British tax-payer) however surely this would be counter-intuitive to having human rights? A Bill of Rights- if their were to be such a creature- should be...untouchable?.... the rights within should be absolute (with some exceptions of course) and there should be a predictability about them so that subjects could go about their lives safe in the knowledge of where they are and aren't protected by the sanctity of these possible rights.
On that note, surely then, it is a good thing that the UK is signed up to the ECnHR? Because having the European Court of Human Rights means there is an...independant adjudicator if you will (just like Deal or No Deal) who can insure that there is no foul play on behalf of the government... I don't know about you, but I feel safe in the thought that if the UK were to breach these rights, they would recieve a slap on the wrist and a (rather) hefty fine as a result- but if there was no such body....
Could it see Parliament getting too big for its boots?...and us..the individuals trampled underneath with no appeal above the Supreme Court.
I believe the phrase would be- "You're on your own kid." and somewhere in Europe, a sarky pro-human rights reporter would write the words -you made your bed and now you can lie in it.-
So, it is clear that the media, after recieving a horrendous slap on the wrist by Parliament will now be forced to take responsibilities for their dodgy dealings all in the name of searching out the latest scoop.
The Leveson Inquiry (13/07/2011) is headed by Lord Justice Leveson and is a response to the uncovering of "phone-tapping scandals" over the last few years- where journalists and media moguls endorsed tapping into the mobile phones of current celebrities to learn secrets; or of the families of victims in current or past court cases which inevitably dragged the elephant into the room that is the right to privacy and family life.
We are now at the point in which the Leveson Inquiry is producing its findings and recommendations- that the British Press should either a) be regulated through Statutes and Parliament or b) through tough self-regulation.
The House of Commons has since been debating the merits of either outcome- and the Culture Secretary, Maria Miller, followed by a murmur of agreement on both benches stated that come what may '[the outcome] must be effective; it is a common ground and we must put aside the politics and turn our focus on the principles'...She is apparently rallying the parent that is Parliament to join forces- no matter what disagreements they may have elsewhere in policies- to come together and chastise the naughty child that is the errant media.
There was certainly a definitive air in the Culture Secretary's address as she stated that 'status quo was not an option' and that 'we will not accept a puppet show with the same people pulling the same strings'- she certainly was not going to let it slide- and for once, it seemed like there was quite an agreement- that huge corporations who have monopolies on everything and seemingly everyone, who are chaired by the same faces time and time again should not be able to just apologise, return to the comfortable leather seats and continue the malpractice that lead to 'suffering'.
However, with the future implications evidently at the forefront of her mind, Mrs Miller clearly was not in favour of a wholly statutory set of rules that would bind the media for example when she said that 'such legislation could have a profound effect on our ability to safeguard the freedom of the press in the future'- something which, Britain can stand proud to maintain- and it is clear that, should statutes regulate the press and prevent all manner of things from being written and the ways in which it is obtained, then surely it would devaluate its own permission of the freedom of the press!? There would be no freedom.
To paraphrase the Secretary, media is a form of free speech but as with all privileges there comes responsibilities- and that could include the responsibility not to abuse that privilege that could be so easily taken away!!! the responsibility to be ethical and moral in their practices and to not interfere in peoples lives in a way that could be considered traumatic...
So alas, as the inquiry rumbles on, it seems that so far, the outlook appears to be some form of self-regulation that will cause the media to sit up and take notice, pull up their socks and not push the boundaries so far that they accidentally fall into the phone lines themselves.
Ok...so its bedtime so I will make this a short one- but I have been on Jury Service this week and it has got me to thinking about the institution of the Jury and its role in a criminal trial.
The Jury are basically the "judges" of the trial and decide- on the merits of the evidence and the cases put forward by the Prosecution and Defence- whether the Defendant is guilty or not. They are made up of 12 Laymen which means the normal person on the street with normal common sense who has normally not had a background in legal education.
So far, although I have not been called, it has been so interesting just being with other people who are potential jury members and listening to their opinions of the system... it has been a whole lot of waiting around to be called only to be sent home after 4 hours or sadly more today. But they have come up with some interesting points about the Jury:
The Jury are reimbursed for the time they are in court (if they are employed) and can also claim back costs of standard travel and also food up to a certain amount. This has been paid for out of the tax-payers money- and yet so far, for the 16 of us who are waiting to be selected; this seems to have all been for vain- is the system really operating at its best!? Is there really no easier way in which the Jury can be summoned so that time can be saved, people can stay in work and tax-payers money is not poured down the drain!?
It is difficult to say because what else could they do? Do the ballot before hand and then call everybody in an hour before the trial? but what would happen if they could not get hold of the juror- would they then be in contempt of court? what happens if they could not get in on time? would the costs of holding up the trial be more crippling than keeping that person in all day on the off chance that the beaurocracy is completed in time?
But then my fellow potential jurors also questioned who should actually make up the jurors: should it always be a stubborn 6 men and 6 women?! If a man were to be tried for domestic abuse of some sort with a jury of predominantly women- is that not half the battle lost already? Surely that goes against Art 6 of ECHR - the right to a fair trial?!
But this idea has been bought up before me once before- when my flatmate and I went and watched a court case in the Old Bailey.
It was a murder trial where the victim was a toddler and the defendant a young boy of around 17 (probably about my brothers age) and the one thing that my flatmate said that really stayed with me was that the jury had been made up of 7 women and 5 men- he said that the young lad did not stand a chance in hell against a jury comprised of women- many of whom were probably mothers- and...I think he's right! As a woman- I can safely say that men have a certain objectivity about them that allows them to see past their own feelings which I believe is so important to a fair trial.
The same could be said that there should be a wide range of ages because of the diversity of opinions that can change the outlook and the opinions of others.
However the two points adressed above do seem to be tackled slightly by the Courts- because initially, 16 people are taken into the court to be selected at random down to 12 who are then sworn in as jurors however the prosecution or defence do have the oportunity to question a juror- and it is times like this where too many women can be substituted for a more even number of men.... but still- could this not all be prevent by making categories by gender and then selecting 6 from each!?
Who's to know... especially not me...as for now I must wait until the coming week in the hopes of being assigned.
In light of the current cases that demand for an extradition
of suspected terrorists, it is important to refer to the law that prevents
these men from being extradited to the countries who want them- what is it in
our common law that stops the extraditions to countries whose penal systems
feature torture, degrading treatment or the death penalty.
Soering v UK is still registered as a positive or neutral
decision under Westlaw which means that the case is still current law and will
be used in arguments against any extradition.
In this blog, I am going to examine 1 element gleaned from
this case- why Article 3 (the right not to be tortured or suffer inhumane or
degrading treatment) of the European Convention on Human Rights(ECHR) prevented the
UK from extraditing Soering to the USA to face charges of capital murder.
Facts of the Case
Jans Soering was a German national living in Virginia (USA) who,
in 1985, at the age of 18 with his girlfriend, killed her
parents. It was reported that ‘their deaths were the result of multiple and
massive stab and slash wounds to the neck, throat and body’. It is not under
dispute whether Soering killed the parents however it was only in 1986 when he
was arrested in the UK for a cheque fraud that the issue became real.
The Problem:
As we can see above, there were 3 countries with a stake in
the claim for the extradition of Soering; the first was the UK because it
was where he was found as a fugitive (however he could not be tried in the UK),
secondly; Germany because he was a native and third: the Commonwealth
State of Virginia within the USA.
Neither Germany or the UK have the death penalty as it has been abolished by all EU members however the state of Virginia still used the death penalty at the time of the case. In order to escape death if he was extradited, Soering used up all his appeals within the UK and brought a claim against the UK to the European Commission of Human Rights to prevent his being extradited.
He argued that by extraditing him, they would be in breach of Article 3, the UK argued that they would not be.
The Argument:
In the UK, Courts deciding whether Soering should be extradited held that the death penalty was permissable as an exception under Article 2 (right to life) of ECHR which would mean that Soering would be returned to Virginia to face punishment. However Soering chose to base his arguments instead partly around Article 3. He argued that if he were to be extradited to Virginia, the UK would be in breach of Article 3: the prohibition of torture or inhumane or degrading treatmentbecause he would be forced to live on death row. The case referred to this as the "death row phenomena."
Would the "Death Row Phenomena" Breach Article 3 ECHR?
The Judges first examined what was meant by the death row phenomena... they deciphered what would be the conditions under which Soering would be kept whilst he was on death row:
The size of the death-row inmates' cell is 3m x 2.2m
6-7 hours recreation (seasonal)
Permission to leave the cell on occassions such as to recieve visitors.
A death row inmate is moved to the Death House 15 days before he is due to be executed.
Whilst in the Death House, an inmate is isolated and has no light in his cell- there is only light outside in the corridor.
The cell is next to the Death Chamber itself.
The Applicant (Soering) adduced that for these reasons a death row inmate would be exposed to extreme stress, psychological deterioration and an increased risk of homosexual abuse and physical attack.
Ergo, this would be a breach of Article 3 which states the "absolute prohibition on torture and inhuman and degrading treatment or punishment"
In this instance, Soering argued he would be suffering degrading punishment owing to the conditions he would be kept in.
What If Virginia Swore Not to Execute Him?
In 1986 the British Embassy in Washington wrote to Virginia:
"Because the death penalty has been abolished in Great Britain, the Embassy has been instructed to seek an assurance with the terms of the extradition treaty that in the event of Mr Soering being surrendered and being convicted of the crimes for which he has been indicted, the death penalty, if imposed, will not be carried out.
Should it not be possile on Constitutional grounds for the US Government to give such an assurance, the UK Authorities ask that the US Government undertake to recommend to the appropriate authorities that the death penalty should not be imposed, or if imposed, not to be executed."
With this, the UK argued against Soering that the assurance recieved from the US must at least significantly reduce the factor of Capital Punishment being imposed or carried out and therefore, if he was extradited, he would probably not face the death row phenomena. However Soering retaliated that the representations (above) concerning the wishes of a foreign government would not be admissable as a matter of law and would not be a concrete promise that he would not be executed.
The European Commission's Decision:
Unfortunately for Soering, a 6 votes to 5 majority held that the extradition would not result in treatment that would lead to a breach of Article 3 in this particular case. However it did state that "in cases where it is certain that the person will be subjected to torture or inhumane treatment the deportation or extradition, in itself, under circumstances constitute inhuman treatment"
What Did He Do Next?
Soering anticipated that this would be the decision of the Commission and so instead began to file a claim with the European Court of Human Rights in 1989. The Court actually disregarded the decision of the Commission and decided in favour of Soering.
Firstly, In the Courts view, having regard to the very long period of time spent on death row in such extreme conditions with the ever-mounting anguish of awaiting execution, and, to the personal circumstances of the applicant, especially his age and mental state, the extradition to the US would expose him to a real risk of treatment going beyond the threshold of Article 3.
Secondly, the Court did not give any assurance from Virginia much weight which suggested that they did not trust the promise that they would not execute him enough to not see it is a risk high enough to merit a breach.
Why is Soering v UK So Important to Current Law?
1) It widens the responsibility of the UK to other states- they must now look into what might happen to the applicant after they have been extradited or deported and must try and recieve assurances against any inhuman treatment.
2) The Convention on Human Rights effectively overrided any agreements between member states and non-member states e.g UK and the USA or Germany and the USA.
3) It makes it difficult or even impossible for the USA to request extradition in cases such as the above.
The Oxford Dictionary definition of capital punishment
noun
[mass noun]
the legally authorized killing of someone as punishment for a crime: the abolition of capital punishment
under which the semantic Death Penalty resides. There are still many countries on this planet which inculcate in capital punishment (e.g China, Iran, Iraq) however I would like to focus my blog on the US whose deaths under capital punishment rank 5th in the world.
I chose the USA because more than half their States feature it in their individual jursidictions and simply because of their proximity to us; the UK.
Just what has made our counterparts in the US decide to accept capital punishment where we have long since abolished it?
So how do they do it?
In 2012, for all the death row inmates in the USA the method of execution has been the lethal injection which is a mix of drugs; however the main drug is Pentobarbital which is from a class of drugs known as barbiturates and depresses the activity in your brain and nervous system.
Other famous methods include the electric chair which involves pulsing 2000V through the restrained human body; and hanging; the 'long drop' which is designed to break the neck, sever the spine and cause blood pressure to drop in a matter of seconds.
Crimes punishable by death.
The majority of States in the USA which do have the death penalty decree that crimes punishable by death are either premeditated 1st degree murder or capital murder. A few states such as New Hampshire have a suprisingly large list of crimes including murder committed in the course of rape, kidnapping, or drug crimes; killing of a police officer, judge or prosecutor; murder for hire or murder by an inmate while serving a sentence of life without parole; and Wyoming requiresfirst-degree murder; murder during the commission of sexual assault, sexual abuse of a minor, arson, robbery, burglary, escape, resisting arrest, kidnapping, or abuse of a minor under 16.
However, the concept of a state-by-state law is entirely alien for a British subject raised on Parliamentary Sovereignty where Parliament makes the rules and nobody can question them- this is because the USA's judicial system runs on the basis of a federal system in which all states exist under Congress who create and ratify treaties (but require the Supreme Court to pass them)- this is known as federal law and coupled with the law of the American Constitution exist as a higher entity of law. States on the whole can grant individuals rights as long as they do not infringe upon federal or constitutional law.
Why States such as Alabama, California and Texas have the death penalty but Connecticut, Illinois and Maine don't is because they chose to under: Title 18 USC (US.Code) 'Crimes and Criminal Procedure' and it is up to the individuals of each state to vote whether they would like it or not. For example, in 2012 Californians voted on Proposition 34 (the retroactive decision to repeal the death penalty) with a 53:47 percentage majority in favour of keeping the death penalty.
Is the policy viable?
One of the reasons why the margin between votes was 6% is because there is a growing argument that it is uneconomical to use capital punishment. The argument as stated by CNN News is that 'California taxpayers have spent $4 billion since 1978 to execute just 13 convicts, according to a 2011 study by federal appeals Judge Arthur Alarcon and his law clerk Paula Mitchell...that equates to more than $300 million per execution' It reasoned that nearly half the states costs go to providing legal representation for those on death row so in effect there is a farcical round-about procedure in which the tax-payer always loses.
Conversely, the administrative law of the UK would argue that the state owes a fiduciary duty to the tax payer not to waste money.
'Killing Californias Costly Death Penalty' Youtube
Is it morally acceptable?
It is a subject of great debate as to whether Capital Punishment should be used over whether it could be used.
Bruce Fein JD (A constitutional lawyer for the death penalty) stated that 'the death penalty honours human dignity by treating the defendant as a free moral actor able to control his own destiny for good or for ill; it does not treat him as an animal with no moral sense' which in lay-mans' terms means that a human makes the choice to do right or wrong with the knowledge of any consequences his actions might have in the forefront of his mind. However others will always argue that it is not for the government to kill individuals especially in a judicial system that is known to favour the rich over the innocent poor. The USA is still a god-fearing place and it is clear that the parable 'an eye for an eye' factors strongly into their equations however, Gandhi; a civil rights activist rebutted it with 'an eye for an eye will make the whole world blind'
As well as this, there have been more than a few notable miscarriages of justice which leads one to question whether the Death Penalty is truly fulfilling its objective- to execute criminals.
Lewis E. Lawes a warden from Sing Sing in 1933 is quoted in 'Condemned: Inside the Sing Sing Death House'as saying that if the 20 souls in death row 'signified that only ten or twenty murders were committed each year in New York State, then one could say correctly perhaps, that the death penalty in capital cases was effective and accomplished its purpose. But actually far less than 1% of those who commit murder are executed' Although this statement is around 80 years old, it is still a very contemporary argument which suggests that it is far more trouble than it is worth.
'The Youngest American Ever Executed?' Youtube
What does the International Community think?
The European Union (27 member states predominantly residing within the Eurozone) of which the UK, France, Germany and the Benelux countries are members are banned from executing prisoners. The EU demonstrates its oposition to the death penalty in several ways:
It bans exports of the drugs used to create the lethal injection. In it's report of the EU Commissions actions the BBC wrote: It [The EU Commission] wanted to ensure
that no drugs were being exported from the union for use in "capital punishment,
torture or other cruel, inhuman or degrading treatment or punishment". Drugs banned from being exported to the US include Pentobarbital and Sodium Thiopental.
It makes petitions to halt executions where D is ill or potentially innocent.
Funds anti-death organisations and charities.
In 2007 members of the UN met at the sixty-second General Assembly, Third Committee , (30th & 31st Meetings (AM & PM)) to discuss Capital Punishment where countries such as China argued that capital punishment was not a human rights issue however the EU and other countries such as Switzerland oposed. Overall it was held that capital punishment was not prohibited under international law and was clearly an individual country decision.
Living on Death Row
Experiences of death row differ depending on the State and the prison however most prisoners spend around 23 hours of the day in solitude in a single cell with a solid-door. Some are allowed family contact and contact with lawyers however some are not... 'I miss the stars you know. I havent seen the stars in years and years and years. I miss the rain. I miss food. I miss all these things. But what it comes down to the most -- and this is the thing that will scar me the most and that I'll carry with me as a scar the longest -- the thing I miss the most is being treated like a human being.' CNN interview with Damien Echols on Arkansas death row since 1993 (Jan. 13, 2011) (released August 2011).
The Infamous Last Meal
It is a veritable 'desert-island' question- what would you have for your last meal? However it seems to be a very serious and quite macabre subject. So Macabre in fact that photographer Helen Thompson set her work around the theme of last-meals and displayed it within the Embankment Galleries earlier this year. Even scientific studies have looked into the choices people make when deciding what their last meal will be- for example, people often go for higher calorie more unhealthy foods such as fast food, ice-cream and sweet treats as opposed to fruits and salads... why do humans do this? Gorge on everything they know they shouldn't- treat themselves? Why is it even an issue at all when you are going to die and it no longer matters to your body what you will eat?! But on the other hand- if one is being executed should there be some formality to the finality?
The State of Texas seems to think along these lines too as CNN reports that Senator John Whitmire abolished the ritual of the last meal arguing that 'it is extremely inappropriate to give a person sentenced to death such a privilege' and some argue it is all because of the hefty order of one prisoner who then failed to eat any of it. However couldn't one argue that every other privilege including the highest of all- the right to life is being taken from them and therefore the choice of their last meal after X number of years in regimented incarceration is but a small mercy?!
The Victims Families
The Death Penalty sentencing is a long and drawn out affair that will scar victim's families- it asks them to relive the pain of losing a family-member over and over until all appeal avenues are exhausted by the defendant; if the money were chanelled to other areas of crime prevention more families would not become victims of the process and the fact that the whole process is focussed on the punitive measures and not on how people can begin to rebuild their lives.
On the other hand, one could argue that seeing the murderer executed is a way of release and closure for family members however- this is not a way that is conducive to moral behaviour and as Francis Bacon once said 'Revenge is a kind of wild justice which the more mans nature runs to the more the law ought weed it out'
'Murder Victims Families Debate Death Sentence' Youtube
Where do I stand
Putting someone to death seems to be a very archaic form of justice- dating back to the Cave and yet it still features within a civilised countries judicial system. Democracy dictates that the people decide through the vote how it should be done (which was demonstrated by California) however, how far can the justice system really rely on the lay-man to direct the punitive methods!? What does a lay-man know or understand truly about how crimes ought be deterred and punished!
The lay-man is too easily riled by the media who are used to hype up cases for or against an inmate on death row so that they are chanelling one particular emotion without truly seeing the case from both sides- this is how miscarriages of justice happen in the first place- where there is a mistake in thinking that justice must be seen to be done over justice actually being done.
I am currently studying Evidence and Advocacy as a module in my degree and so the following quote almost had me spit out my cup of tea all over my laptop in horror: Steven D. Steward JD. Prosecuting Attorney for Clark County Indiana: 'No system of justice can produce results which are 100% certain all the time. Mistakes will be made in any system which relies upon human testimony as proof... The inevitability of a mistake should not serve as grounds to eliminate the death penalty.'
This prosecuting attorney is saying that just because there is a likelihood of getting it wrong it doesn't mean that people should not be executed anyway... the way I read it, is that as long as there is a scape goat at the end of the day, whether the person who goes into the electric chair is guilty or not guilty is inevitably unimportant to this prosecutor.
So I say to you, US Citizens- your hunger to point the finger of blame toward anyone will see your minds clouded with angry misjudgement, prejudice and hatred. The eyes of the law must remain unbiased and reasonable so that despite what the newspaper says- the truth will out.
Few times has UK public opinion so influenced a judgement as it does in America that the only time that I can call to memory is 'Venables' and the murder of the toddler Jamie Bulger which saw the English age of criminal responsibility lowered to 10 y.o.
Halt the call for blood, stay the circus-trials and see the people for who they really are... and besides- if you are going to kill one murderer- then kill them all or it is just plain discrimination. period.
Links:
Here are some interesting links that I used whilst compiling this blog:
If anyone should happen across this blog... My name is Charlotte and I am a student living in London learning the law as my trade :P
Currently this page is disgustingly empty and boring because I am working on my first blog- I plan on blogging maybe every week or fortnight depending on my uni work-load or what I'm writing about!
Currently writing about the Death Penalty (and it's not just because I've been watching Prison Break I promise!)
Stay tuned
Char x
