Capital Punishment Essay Part VI - Detterence and Finality
The finality of the death sentence in all its meaning.
1. The Principle of Deterrence
To argue deterrence some say is a firm bulwark of sentencing policy generally. “Pour encourager les autres” as the French say euphemistically. Others argue crime is committed on the spur of the moment when the opportunity arises without thought of the legal repercussions. Even that sort of petty thief or criminal is pre-disposed to crime and capable of being deterred by the likely punitive effect to be imposed by the Courts. Deterrence is a good argument for prison terms particularly when the crimes are prevalent as the London Stipendiaries used to say. Penal policy is designed to reduce and curb criminal behaviour at bottom.
2. Life Imprisonment
The Court of Appeal Criminal Division supports the deterrent prison sentence in preference to the concept of retribution. Currently we are locked into life means life with some murder convicts. The reasoning behind that sentencing is:-
- The risk to law and order of releasing those murderers i.e. public outcry and lynching.
- The terrible abhorrent nature of these killings which make release unconscionable.
- Deterrence is a factor to support the non-release policy.
- The danger of re-offending.
- The grievous wrong to the victim’s families of showing any favour to the murderer of their loved ones by releasing him may be with a new identity.
My death penalty restoration policy will give the Court of Appeal Criminal Division a proper and just solution to this impasse and traumatic turmoil for the victim’s family and their entourage in this judicially imposed execution of the convicted murderer. The running sore and boil will be lanced finally never to return. Justice will have been done and seen to be done. Peace will return.
3. Deterrence in the Crime of Murder
The worst murders are pre-planned and methodically carried out. I can think of several such murderers some convicted some not convicted. Clearly these murders, some the result of conspiracy, will be carried out by persons or a person not intending to be caught and fully concealing their traces to deceive the police hue and cry. Thus what matters to these murderers is completing the murder not the punitive result of capture and charge. Clearly they are not deterred by the likely sentence in my submission. If caught several will wriggle and squirm and in the last resort escape from custody before trial maybe even after e.g. Biggs Great Train Robbery, (Wandsworth Prison) George Blake spy for Russia (1960’s) (Brixton Prison) Blake and Biggs post-conviction but not tried for murder and two Provisional IRA members accused of murder who escaped from Brixton Prison 1980’s. If these accused could escape so will other premeditated murderers with support from outside the prison walls. Nowadays the accent is on not being charged or evading conviction if caught or having the conviction quashed (Birmingham Six and Guildford Four). Thus these post restoration of Capital Punishment sophisticated murder conspirators and murderers will avoid being arrested and being convicted and if it comes to it they will secure release on appeal. The penalty of death will be no deterrent to them as they don’t intend to get to that stage in the criminal process. Some of these murderers do not act alone and they have support inside and outside the legal process to secure their release.
4. The Finality of the Death Penalty
I come back to this aspect. The police are very well equipped with knowledge and intelligence and knowhow and sophisticated forensic tools. In the pre-1990’s era this was not the case. The investigating detectives are well qualified and scrutinised. The problem lies in the political leadership in criminal justice which is not responding to the great advances made by these detectives and forensic science particularly in murder cases. The chances of miscarriage have thus greatly diminished and the checks carried out by the Director of Public Prosecutions and the Crown Prosecution Service with leading independent Crown Counsel have virtually eliminated a miscarriage currently happening in a murder trial. Of course presently the Jury directed by the trial Judge decide these issues. When I say miscarriage I mean wrongful conviction not mistaken acquittal. With trial by Judge alone as I submit – this murder trial process will be further refined. A murder trial Judge at this level may be relied upon to bring in the right and proper verdict with reasons. As I have urged it would be quite unacceptable for Juries to decide on guilt of murder in death sentence cases. It would be a matter for the single Judge alone as a matter of clear policy and decision making based on the new reality in Criminal Justice after the restoration of the death sentence.
Pilate said “what I have written I have written” (on the Cross of Jesus) namely ‘The King of the Jews’. He refused to change that epitaph and he had no second thoughts about passing the sentence of death on Christ. We should take a leaf out of his book and stick to our gun and decisions. The due process in murder cases of discovery, investigation and gathering evidence followed by charge, committal, arraignment and if proper plea of not guilty is entered trial by Judge alone and sentence of death is passed should be pursued subject to the full Court of Appeal Criminal Division quashing the murder conviction or overturning the Death Sentence. Of course we live in a free world and lobbyists and journalists may contradict the decisions of a trial court but matters may be sub judice (therefore only restricted comments). The right to criticise the decisions of a single Judge in public in murder cases and the Court Appeal in such cases should be curtailed under the inherent powers of the High Court Judges. This restriction could come within the ambit of the contempt of Court jurisdiction. Here again our leaving of the Union and the repeal of the Human Rights Convention in our law would be a sine qua non for the exercise of these High Court Queens Bench Division powers. With the checks and balances in murder trials and sentencing I have proposed such restriction on media comment fermenting ill will against our judicial process would be fully justified. We should defend our Judges and Crown Counsel and all connected with the prosecution process. No one should be intimidated and bullied in any way.