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DUPS Amicus: The UK Government’s Stance on the Death Penalty

In July 2018, the Home Secretary, Sajid Javid, sent a letter to the US attorney general confirming that the UK will assist in extraditing and prosecuting two former British Citizens for crimes committed in Syria as members of an Islamic State (ISIS) cell[1]. In doing so, Javid stated that the UK will not seek assurances that the death penalty will not be imposed despite their former British status, marking a clear divergence from political tradition and the UK’s obligations under domestic and international law.


In 1965, the Murder (Abolition of Death Penalty) Act abolished capital punishment for all offences, and following the incorporation of the European Convention on Human Rights into UK law through the Human Rights Act 1998, capital punishment for murder was banned except “in times of war or imminent threat of war”[2]. Although only applicable domestically, the Government has historically remained consistent with this stance internationally, and as a result Ben Emmerson QC comments that Javid’s actions are “unprincipled, incompetent and almost certainly unlawful”[3]. Emmerson is suggesting that a rule of customary international law has been created. Customary international law stems from the idea that a legal rule or obligation can develop from a common and repeated practice; on the international playing field, once such a rule is proven to exist, it is binding on all states[4].


By deviating from such, the Government is vulnerable to legal action, and its strict political stance appears to have shifted: in October 2011, the Coalition government published a death penalty strategy, stating that the UK aims to increase the number of countries that have abolish the death penalty[5]. In addition, the Extradition Act 2003 allows the UK to extradite individuals to countries, including the US, but this is prohibited if that person could face the death penalty. Javid’s failure to seek “no death penalty” assurance inadvertently causes Britain’s complicity with capital punishment abroad[6], contrary to policy.


Human rights campaigners are concerned that this could pave the way for further assurances to be abandoned in future cases which have less evidence[7], and this in itself can increase the risk of the innocent being accused or subjected to the death penalty. It is hoped that consistency in policy is retained, and that the threat of terrorism and the resulting public outcry, as seen in the recent case of Shamima Begum[8], does not sway members of the Government away from the anti-death penalty position.


Ellie Wilson

DUPS Amicus

25 Feb 2019


 


[2] Part III, Sixth Protocol, Article 2 HRA 1998



[4] The North Sea Continental Shelf cases (FRG v Denmark; FRG v The Netherlands) (1969)



[6] https://blogs.lse.ac.uk/politicsandpolicy/complicity-in-the-death-penalty/


[7] https://www.theguardian.com/world/2018/jul/23/is-the-uk-governments-stance-on-the-death-penalty-shifting


[8] https://www.telegraph.co.uk/news/2019/02/15/shamima-begum-could-happen-isil-bride/



Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes above.

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