Declaratory Relief and Capital Punishment
This argument in my essay speaks for itself, but I would be untruthful to pretend I do not seek to drive a coach and horses through the ban on hanging for murder in the ECHR in our constitutional law. Yes I am breaking new ground and explorers like myself have to face the unknown. I publish this essay in the knowledge this legal challenge will not proceed as things presently stand.
1. My Aim
I wish to obtain a Declaration from the London High Court that the particular Article in the ECHR enacted in 1997-98 banning judicial executions for murder convicts in England & Wales outright is contrary to:
- The Magna Carta – 1215 Runnymede as concede by the Crown – King John
- The principles of Natural Justice
- The ancient Natural Law going back to the Greeks (the Stoics) and the Romans then the medievalists and to Grotius the Dutch writer in the 17th Century, until British Capital Punishment Justice during the 19th and 20th Centuries to Abolition in 1968.
I have a strictly limited goal at this stage. I accept Restoration of the Death Penalty is some way off. I agree that is my final aim. As regards all three of these subheadings quoted above they turn on the principles of Natural Justice to bring about the just result which is the Death Sentence for murder.
- I rely on the Magna Carta in its protection of our citizens for centuries by the common law crime of murder; based on the requirement any alleged murderer must face a trial by Judge and Jury subject to sufficient evidence being found. Furthermore, such an accused was, if convicted, liable to judicial execution for this grave crime since the Magna Carta by the Judge’s Death Sentence. Finally, the rights of the innocent subject were further defined by the officers of the Crown ensuring this Sentence of Death was duly expedited. This Article in the ECHR has done away with any Restoration of the Death Sentence and prevented any return of these historic rights. We cannot restore the fundamental protection of the Death Sentence until this Article is declared invalid, which puts a bar on judicial executions since 1997-98.
- With Natural Justice the wrong I seek to right is the failure to consult the people before this particular Article in the ECHR was made law in England & Wales. The ECHR was passed in 1997-98 under Blair’s first Administration. The people were not consulted in a general election on the specific issue nor by referendum. I submit this failure to consult the electorate borders on the unreasonable for such a cardinal principle of our freedom being abandoned to enjoy the penalty of Death for those who commit murder under our Rule of Law. Moreover, I verily believe from my canvassing of the people by letter and face to face documented and proven since 2013, there is a significant and large groundswell of support to restore the Death Sentence for convicted murderers by the Jury found guilty. This to be on the Trial Judge’s discretion for the Death Penalty. This support has not been represented by a public speaker in politics and morality since 1945, save in the Death Sentence debates in the post War years mainly the 1940’s and 1950’s. Since 1968 there has been no lively debate in Parliament or the Country. The matter has gone dormant.
3. Counsel will be familiar with the known principles of Natural Justice:
- Audi alterem partem – “To hear the other side” in other words in English.
Effectively by this Article, Blair in 1997-98 removed this crucial protection of the citizenry from murder by cementing in our law the end of Capital Punishment for murder as in the Convention. Believe it or not the Death Sentence makes the potential offender think twice. It is a real deterrent to the principal actor in murder and his accomplices and conspirators to murder. The Death Penalty protects the innocent life first and foremost by this deterrent and by punishing the guilty taker of life. To remove this protection is to go against the right to permit citizens to live innocently and lawfully. This argument has not been pursued before. Blair simply pushed the ECHR through not even on a conscience vote for this Article.
The supporters in the Country of the pro-Death Sentence case in 1997-98 were not given a hearing. Parliament did not appeal to the public. Was this Article of the ECHR mentioned in the Party manifestos so dealing with the Death Penalty in the 1997 election? Doubtful I say in answer. It was a “dead letter” this Death Penalty with the two main parties in that general election, (Blair vs. Major). The eventual vote in Parliament for the ECHR to become English & Welsh Law in 1997-98 went through on the nod I suspect, very soon after Blair’s election. There was no one equipped then, such as myself, to argue the pro-Death Penalty case by website, Kindle, e-mail and Hardcopy or verbally as I do now.
This case of such vital importance to the people and cherished in their hearts was silenced. I was a practising solicitor and not yet a protagonist in 1997-98.
- Ultra vires – Can Parliament by itself abrogate Magna Carta and ride rough shod over the ancient Natural Law, both of which rely on the Death Sentence for murder? Yes, as Lord Justice Denning said in 1954, what would happen if Parliament abolished the independence of the judiciary or freedom of speech? (The listener, 25 February 1954.) Parliament is supreme he said, but in that event I would submit Parliament has acted unconstitutionally and invalidly. It is not fanciful for our Judges to be facing that degree of unconstitutionality even in 2015. The Judges of England would be duty bound to step in and declare such legislative provisions unlawful at the least. (See Professor A.P. d’Entreves – Natural Law – Hutchinson – 1970 – page 135.)
- Unreasonableness – It is a well known principle of Natural Justice in Administrative Law in England that an administrative decision may be declared unlawful for Wednesbury unreasonableness. This may be used to reinforce the Natural Justice case against Parliament. Lack of consultation with the voters springs to mind.
This is not a matter of interpretation primarily, but I do raise the conflicting ECHR Articles. I am striking at the core of this one single ECHR Article by the inherent jurisdiction of this English High Court. I submit the Natural Law is based historically and presently on the principle of Capital Punishment for murderers when convicted by due process. This Natural Law is unwritten and left to our Judges to elucidate. I argue the Death Sentence for murder is a right of protection from murder to each citizen as I have written herein. I crown my case by arguing that Natural Law invalidates this Article barring the Death Sentence form our criminal courts for murder, in the same way that Natural Law would invalidate legislation taking away Freedom of Speech and squandering the independence of the English High Court judiciary. The Judges in England are fully entitled to act to declare this particular Article of the ECHR invalid and unconstitutional if they are in agreement with my polemic and reasons.
Very few Judges in Rhodesia were prepared to rule in the 1960’s that Ian Smith’s regime under UDI (1965 Constitution) was unconstitutional. There is no doubt it was unlawful. The question of the lawfulness of Ian Smith’s Rhodesian Whites only regime came up for our Privy Council to rule upon on 23 July 1968 in London regarding a Rhodesian detainee’s claim he had been illegally detained by Smith’s governing elite: (Madzimbamuta vs. Lardner-Burke). Lord Reid gave the binding majority judgement as follows: -
- The detention of this detainee by the Rhodesian Government was invalid, regardless of whether the written pre-Independence or post-Independence 1965 Constitution were considered effective.
- Lord Reid declared the latter constitution “revolutionary” and an illegal Constitution.
- He ruled the English Parliament by the Southern Rhodesia Act of 1965 had overridden the 1965 Ian Smith lead constitution, which 1965 Act had also outlawed the Rhodesian legislative, legal and administrative authorities in British Law.
- He described Smith’s government as a “usurper” because the UK Government was still trying to regain control. He argued the UK retained the de Jure right to govern Rhodesia.
- The Rhodesian emergency measures were unconstitutional in British eyes he said as the measures had been formalised by a post-Unilateral Declaration of Independence Officer Administering the Government.
- Lord Reid in this powerful and thunderous judgement of the majority of Judges ruled Madzimbamuta was illegally detained in Rhodesia by Ian Smith’s administration. The Rhodesian Judicial Bench almost to a man refused to recognise this Privy Council Judgement, as they considered the Privy Council had no jurisdiction in the Rhodesian Judicial hierarchy. I argue the circumstances are different, but for the reason of the Superior law and higher Natural Justice, including the Magna Carta quoted by myself, the principle is the same in this Death Sentence issue and the ECHR.
Lord Reid argued the Southern Rhodesia Act legislated out of our Westminster Parliament, was the higher law – I go higher still, not to strike down the whole ECHR edifice, but to have one particular Article of the ECHR declared unlawful. The English 2015 government may respond as it wishes if I am successful, and obviously be heard if I am granted Leave.
Freedom from murder is a fundamental Right of man. I argue the denial of the Death Sentence in this ECHR Article erodes this Right to live legally. May the Right to life in this ECHR (by that Article) enable the English High Court to declare the ban on the Judicial Death Penalty in that other Article is unlawful. Innocent life stands above the protection of the life of the convicted murderer in my view. That is axiomatic the Convention should be read that way.
I ask for Declaratory Relief only and I wish to avoid confrontation. The 1968 Act of Parliament, whereby the Death Sentence was abolished is not within my view presently. It cannot validate the ECHR in my view. I do seek to rely on the inherent jurisdiction of the English & Welsh High Court Judges to break new ground in my Application. The 1968 repeal was done before we joined the EC in 1972-73, and thus could not anticipate the ECHR thirty years later.
I seek a challenge in open Court, if I am granted Leave to apply for Judicial Review, leading to this purely Declaratory Relief. Only Parliament may change the Law to restore this Death Sentence so dear to my heart and the English Common Man as I concede. This case concerns the ultimate judicial power to sentence to death and bring the sentenced man’s life to an end, but lawfully. I do not believe there is an English precedent since 1900, probably not since 1800 either, for the Court overruling a statutory provision.
Habeas Corpus is a writ aimed at he who has the subject’s body; it does not aim to overturn a particular section in a statute. The Judges are entitled to “make law” if they see fit according to true principle; they are not limited to statutory powers thank God. The Death Sentence is not allowed presently as I accept. It is not torture, inhumanity or brutality to sentence to death and execute humanely I argue.
The Judge’s Death Sentence should be upheld if the Final Penalty is restored. There must be no muddled thinking. There is nothing intrinsically against good humane conduct, thinking and morality in the pro-Death Sentence case I wish to argue before this Divisional Court of the Queen’s Bench.