THE ROLE OF THE JUDICIARY

A moratorium during the 1960s culminated in a concerted chal­lenge in the US courts. But the classic decision in 1972 in Furman v Georgia⁶ found only two dissenters among the nine justices in favour of outright unconstitutionality. The majority opinion struck down state laws on the grounds that the death penalty operated dis- criminately, primarily against black defendants, particularly those whose victims were white. The Supreme Court’s failure to align itself with almost all the rest of the civilised world in fact provided an impetus to state legislatures perversely to revise their death pen­alty laws in Gregg v Georgia^[112] and other cases in 1976, in order to meet the objections raised in Furman v Georgia. This led to the so- called death row phenomenon, as the death row population expanded with each succeeding conviction for first degree murder in a handful of the 37 states that kept the death penalty.^{[113] [114] For the 30 years following Furman v Georgia the Supreme Court of the United States based its criteria for the perpetuation of the death penalty for murder in all its attendant aspects on the doctrine of ‘evolving standards of decency’. Whether those standards were attained depended on the Court concluding that there was a national con­sensus that aspects of homicide did not decently require the death penalty. Thus in 2003, ‘mentally retarded’ offenders became an exempted category from execution (by now almost always by lethal injection, rather than hanging or the electric chair). In March 2005 in Roper v Simmons,11 by a majority of 5:4, the Court, reversing its decision five years earlier, held that there now existed a national consensus which dictated exempting from the death penalty any­one under the age of 18 at the time of the commission of the crime. The majority of the Supreme Court, notably, prayed in aid the influ­ence of international law and practice as supportive of a general distaste for executing young offenders.}

The conclusion must be that the United States is still some way off abolition, either by judicial process or legislative action in most, if not all, of the state legislatures which retain capital punishment.^[115] At best the Supreme Court is inching towards standards of decency. And there is no sign of legislation in the US Congress; none of the candidates for the two parties, Republican or Democrat, has espoused abolition in Presidential elections this century (in 1988 Senator Michael Dukakis favoured abolition; he disastrously failed to be elected President). But the outlawing of capital punishment as being unnecessary to any legitimate goal of the modern civilised state, and thus incompatible with the dignity of man and the rational judicial process does not appear to be other than on the horizons of the American landscape. The movement towards abolition is due more to economic factors than to rational morality; the same eco­nomic influences are shaping criminal justice in England, with swathing cuts in publicly funded legal aid.

Until the Homicide Act 1957 it was possible to say that the Queen’s Bench judges of the High Court (at that time, only they were entrusted to try offenders charged on indictment for murder) were predomi­nantly in favour of capital punishment. Under the influence of the Lord Chief Justice, Lord Goddard (a scholar indeed, but a traditional relic of stern Victorian moral values) the view of the higher judiciary would have been pronounced publicly only by their actions as dic­tated by the law, or extrajudicially by the Lord Chief Justice.

This judicial outburst was ill-received by the Home Secretary (RA Butler), who protested to the Lord Chancellor about such extrajudi­cial pronouncement in a public forum. Unlike a successor 40 years later, ‘Rab’ Butler, himself privately an abolitionist, quietly fumed and continued to exercise the Prerogative of Mercy at much the same rate as his predecessors. Nowadays such tension between Ministers and judges is articulated in a digital world.

Lord Parker’s outburst was later, however, to have a hugely effec­tive legislative airing, by which time many of the High Court judges had come to share their chief’s hatred of the 1957 Homicide Act; some were abolitionist even by general inclination. By the time of the 1965 Bill, there was certainly no judicial opposition to the reform. Moreover, it became clear that not merely did the judiciary accept, without demur, the ending of capital punishment, but there was a positive desire that trial judges should have the exclusive task of selecting the appropriate term of imprisonment (or even a non-custodial sentence for mercy killings), up to a maximum of life imprisonment when it was considered at the time of conviction that it was not possible to decide when it would be safe to discharge the prisoner from custody. All this was manifest in the parliamentary events at the end of July 1965.

But an event, covered by Chatham House Rules about disclosing the contents of a private meeting without named attribution, took place in 1961. I quote the account of a meeting between the Lord Chief Justice and the Parliamentary press lobby in the Palace of Westminster. Here it is: it bears out my assertion that MPs were qui­etly aware, via the parliamentary journalists, of judicial approval of abolition. A note to file reported that:

Lord Parker gave his views on capital punishment to a group of Lobby and Press Gallery correspondents. The talk was off the record but it was clear that correspondents could use the information given so long as the views were not attributed to Lord Parker. In essence he said that although he was once against abolition he had become over the last three years an abolitionist himself. Not for sentimental, social or religious reasons but because of the anomalies of the present law. He gave examples of this. He felt, however, that some kind of deterrent was necessary to take the place of hanging, which, in his opinion, is a deterrent at present. Further, he felt that public opinion regarded it as a deterrent and would not be happy if it were abolished and not replaced with something else. He dismissed the possibility of going back to the position before the Homicide Act with the phrase ‘we must go forward and not back’... The solution which he favours, and which he thinks would be acceptable to the police and to public opinion, is to abolish capital punishment but to allow judges to place restrictive conditions on the life sentences which they must by law impose. These restrictions would not interfere with the Home Secretary’s functions but he would have regard to them when life sentences came up for review. I understand that in private conversation Lord Parker left the impression that this solution would be acceptable to ‘more than half the judges in England’.

The only concession to particularity in the sentence of life impris­onment was section 1(2) of the Murder (Abolition of Death Penalty) Act 1965, which stated that

The Court may at the same time [as passing the sentence] declare the period which it recommends to the Secretary of State as the minimum period which in its view should elapse before the Secretary of State orders the release of that person on licence.

In practice, the recommendation was little used - in less than 10 per cent of cases - and the appellate court pronounced in 1972 that the minimum recommendation should not be less than 12 years, indicating that the judges thought that the minimum recommenda­tion was designed to cater only for the dangerous prisoner, and did not permit short minima for cases of extreme mitigation, like mercy killings (Lord Parker in 1965 had said that judges were quite capa­ble and willing to be merciful as well as severe). A specific mini­mum recommended at trial was abolished in 2003. The future law and practice of sentencing murderers has thus provided Parliament’s unfinished business. The mandatory sentence of life imprisonment became for the next 40 years the battlefield of penal reform.

The argument against the mandatory element continued una­bated, accompanied by a bland, if even deafening, silence to meet the deficiency in prescribing any judicial discretion in the sentence of life imprisonment. The mandatory sentence reduces the court’s normal sentencing function to the level of a rubber stamp; it negates the idea of individualism in the sentencing of an offender. The mor­ally just and the morally reprehensible are similarly treated for their culpability in crime. Extenuating and aggravating circumstances count for nothing at the time of sentencing, although they are recog­nised if and when the prisoner’s case is reviewed with a prospect of release, often many years into the serving of the sentence. No con­sideration, no matter how valid or compelling, can affect the ques­tion of the sentence. The mandatory sentence cannot consider even the harsh and inequitable result that might flow from such a situa­tion. Judicial policy is opposed to mandatory sentences; indeed a separate function, even a distribution of power, should debar this legislative interference with judicial control. The sound adminis­tration of justice and its social image determines abolition in favour of a discretionary sentence. In terms of human rights law, human rights are not commodities; they are creatures inherently endowed with qualities that are ends in themselves, and not merely means to an end. One of the elements of the dignity of the individual is the ‘right to hope’ that an indeterminate sentence is always subject to a ‘dedicated review mechanism’ at the time of sentence.

When the Government announced its official review of the law of murder on 27 October 2004, and on 21 July 2005 the terms of refer­ence for the review, it assigned the first stage of the review to the Law Commission. The Government was insistent that the crime of murder would remain to be penalised by the mandatory sentence of life imprisonment. The categories of murder, including both the more heinous and the less morally culpable cases of murder, would be visited by the mandatory life sentence. This specific restriction on the terms of reference was absurd. How could the country’s legal reform agency - demonstrably independent - not consider at any stage the law and penalty for a crime? It was the same device that directed the Royal Commission on Capital Punishment in 1949 not to review the death penalty, but only how to reduce the mandate of the death penalty.

The Government intended to legislate on the law of murder before the 2010 General Election. The outcome became uncertain about the consequential shape of the law covering all unlawful killings. The prospect is, however, that the law of homicide, acknowledged to be a ‘mess’, will remain an unremedied mess well into the twenty- first century. No doubt public debate on the substantive law of mur­der will be lively, hopefully well-informed and intellectually based, as well as taking full cognisance of public opinion which must be fully tested, not by reliable pollsters, but the empirical evidence of social researchers. About the penalty, one must be less circumspect if the Government’s only intention is to keep the penalty in as ‘messy’ a state as it is.

If the Government adheres faithfully to the convention that Members of Parliament are free to vote according to their individual consciences, unwhipped by party officials and unaccountable to other constituencies, it may, however, not win the day. Prediction is always a matter of guesswork, however informed and persuasive. The history of the politics of abolition of the death penalty suggests a vote for common sense, and a sensible alternative. A rational sen­tencing framework set by the legislature, with maxima penalties for crime and a discretion to trial judges, acting under the guidance of the Sentencing Guidelines Council and controlled by the appellate courts in their guidance decisions, should doubtless be properly informed by considerations of penal policy. The unfinished busi­ness of almost 50 years ago is due for completion. Will the parlia­mentarians of tomorrow subscribe to sound penal philosophy, recalling the wise words of the philosopher George Santayana that ‘those who cannot remember the past are condemned to repeat it’?