The Common Law position

Similarly, it was in turn this reticence on the part of some, but by no means all, jurors that was one of the motivations behind deportation to Australia: a simple recognition of the fact that the Common Law's response could be unduly harsh. But, and this is absolutely vital, that was a statutory intervention. The Common Law did not respond to the collective consciences of jurors. How could it? It was Parliament that mitigated the Common Law rule. Which, of course, is as it should be.

The Administrative and Executive arms of government acting as a check on what would otherwise be an excessive response on the part of the Common Law as applied by the Judiciary. Now step forward 250 years or so, and what we find is a post war re-evaluation of the power held by the Executive. Now this was no bad thing. One only needs to read Lord Atkin's compelling dissent in Liversidge v Anderson [1942] A C 206 (for which he was ostracised by his fellow Law Lords, dying in professional isolation shortly afterwards) to realise that the Executive needed reigning in.

The response achieved by the Judiciary in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 has spawned its own discrete area of law and was, after Donoghue v Stevenson [1932] A C 562, the most influential decision of the last century. But the pendulum has, in my view, now swung too far. The reason for that assertion is that one area that has in recent years been subjected to inappropriate intervention in the form of judicial review has been that of executive discretion in murder cases. I mentioned earlier that the Common Law's response to felonies – all felonies – was the imposition of the death penalty.

But that was not the end of the story, because the Crown, albeit exercised in modern times through the Executive, has always had the prerogative of mercy. A death sentence could be commuted if it was felt that mercy was appropriate. So, in every students' favourite criminal case, R v Dudley & Stephens (1884) 14 Q B D 273, the seamen who ate the apparently "acquiescent" cabin boy had their death sentences commuted by the Home Secretary to six months imprisonment. The crucial issue though is that the Judiciary had no discretion over its response.

Until Parliament stepped in and mitigated the harshness of the Common Law, the Judiciary were bound to sentence all convicted felons to death. Even those who only committed murder because they were hungry. Beyond that it was the prerogative of mercy or the gallows. End of story (literally if the Executive didn't step in). At Common Law the Judiciary had no discretion unless granted it by Parliament. Discretion was the exclusive realm of the Executive. Which makes the manner in which the Judiciary have behaved in relation to mandatory life sentences for murder over about the past twenty years all the more difficult to understand.

Now I should probably say at this stage that this is not about to become an impassioned plea for the reintroduction of the death penalty. From a purely pragmatic perspective there have been too many miscarriages of justice for that to be a viable proposition, whilst the theoretical Biblical underpinnings of the Western justifications for execution in murder cases were thoroughly debunked by Professor George P Fletcher in Rethinking Criminal Law over 30 years ago. However there is, according to the tabloid press at any rate, still considerable support amongst the general public for the reintroduction of the death penalty.

And just as execution has it supporters today, so too it had them in 1965 when the death penalty was effectively abolished in England. The relevance of this is that in a liberal democracy our Members of Parliament are duty bound to give effect to the wishes of the electorate. It is the nature of party politics that many MPs do not always do so, but the death penalty has always been a highly charged issue, and has always had a number of supporters in Parliament, especially but not exclusively on the Right.

Which proved rather awkward when the Bill that became the Murder (Abolition of the Death Penalty) Act 1965 was first proposed. The reason for that was that a compromise had to be effected between those who favoured abolition and those who didn't. In part, the compromise was that the 1965 Act merely suspended the death penalty for a five-year period, after which MPs were given a free vote on the matter, but the compromise achieved also involved the much maligned and often misunderstood, but nevertheless still completely appropriate, exercise of Executive discretion.

The compromise was the recognition of the fact that a condemned individual's life is forfeit. They have no control over their own destiny. The time and manner of their demise is determined by others. Equally, any exercise of the prerogative of mercy is a matter for others. They have, in short, lost all control over their very existence. Permanently. It was this that proved such a sticking point for those who opposed the abolition of the death penalty, and it was also this that resulted in the imposition of what is now a rather misunderstood concept, namely the sentence of life imprisonment.

Now those who favour the death penalty can frequently be heard protesting that the reason they favour that solution is because life should mean life. In fact it already does. An individual sentenced to life imprisonment is in the same position as those who were previously sentenced to death. Their lives are wholly forfeit, subject only to the possibility of Executive discretion. They may be released after 15 or so years, but the Home Secretary always retains the right to revoke their life licences and return them to jail.

Nor is this some idle possibility: the Home Secretary exercises this power approximately five or six times a year. That was the compromise. The response to murder now is not the automatic ending of life. Rather it is the total loss of the ability to control one's own life, so that, subject only to the exercise of the prerogative of mercy, life already does mean life. Furthermore, it is entirely appropriate that the right to exercise the prerogative of mercy should lie with the Executive. That is where it has always resided, and more importantly, it provides a check upon the powers of the Judiciary.

Yet in recent years we have seen the Executive's right to exercise the prerogative of mercy in respect of those sentenced to life imprisonment called into question time and time again. This, I repeat, is inappropriate. Parliament did not sanction the abolition of the death penalty, rather it introduced rules that prevented the sentence from being carried out and which replaced it with a rule that made the convict's life forfeit. Objections to the imposition of minimum tariffs by the Home Secretary are accordingly irrelevant.

The point is that if the Home Secretary chooses to allow a convict to be executed, or more accurately now refuses to allow him to be released on life licence, that is simply a politician in a liberal democracy giving effect to the wishes of the electorate. Which brings us full circle to the related appeals heard by the Privy Council. Giving judgement in Reyes, Lord Bingham of Cornhill held that 'the provision requiring sentence of death to be passed on the defendant on his conviction of murder by shooting subjected him to inhuman or degrading punishment or other treatment incompatible with his right under…

the Constitution in that it required sentence of death to be passed and precluded any judicial consideration of the humanity of condemning him to death. ' (at 256, para 43). With respect to the Privy Council, that is simply to miss the point. Whilst the human rights jurisprudence of European law may in certain circumstances dictate an increased judicial consideration of such issues in England that does not alter the Common Law position applicable in Commonwealth jurisdictions such as the Caribbean states that were the subject of these appeals.

At Common Law the legislature has dictated a mandatory death penalty in certain circumstances and it is for the Executive, not the Judiciary, to consider whether there are any mitigating circumstances that might justify the exercise of the prerogative of mercy. Admittedly, the Judiciary may not like it when someone else gets to consider the question of mitigation, but the alternative is to do away altogether with our separation of powers doctrine. At the risk of pointing out the obvious, I'm not sure that that is a road I want to travel down.