Capital Punishment in Modern British Law and Culture
by T. P. Uschanov

1. Capital punishment in Britain before 1965
1.1. The law on capital punishment prior to 1957
1.2. The 1955-1957 debate and the 1957 Homicide Act

2. The abolition of capital punishment after 1965
2.1. Total abolition as part of the 1965 Murder Act
2.2. Attempts to reintroduce capital punishment

3. The public and the modern Execution Experience



1.1. The law on capital punishment prior to 1957

What is often forgotten these days is that before the historic decisions in 1964 and 1965, the possibility of hanging had already been restricted in Britain to a very small number of murders with special circumstances. In fact a big factor in the final abolition bill's success was that it was widely felt that a sensible division to capital and non-capital murders, as attempted with the legislation then in effect, had turned out to be impossible. Parliament's finally finding hangings entirely inappropriate was the end result of a long process.

The use of death as punishment, already known from the earliest history of Britain, reached its all-time peak in the 18th century, when Parliament continuously enlarged the already long list of capital crimes. Finally over two hundred offences were punishable by death, among them stealing in a shop to the value of five shillings, stealing anything at all privily from a person, sending threatening letters, sacrilege, and cutting down a tree (Trevelyan 1944:304-5; Bishop 1965:185). Starting in the 1820s, this 'bloody code' was gradually repealed, partly owing to the general rise of humanitarianism and enlightenment, but also because juries were less and less willing to convict people for theft and other minor felonies if that meant they were to die (Trevelyan 1944:305 and 446-7).

Eventually, in 1861, murder became the only offence for which the death penalty was used in peacetime. For that crime the judges were, however, bound to impose it, and the juries could only add a recommendation for mercy for the Home Secretary and the Court of Criminal Appeal to consider when the conviction was being appealed against. In 1868, a notable reform was made when the gallows were placed inside prison walls, inaccessible to the public.

The rise of the Labour party introduced to Britain for the first time a major political force that seemed to be against all hangings. In January 1927 the party published a 'Manifesto on Capital Punishment,' signed by twenty-seven prominent Labour politicians and strongly advocating abolition (Duff 1961:139). However, when a Labour Government was elected, it became apparent that it only committed itself to the abolitionist cause in principle. A report was ordered from a Parliamentary Select Committee in 1930, and it recommended suspending executions for an experimental period of five years, but the taking of any further steps was not considered by the Government.

When the Criminal Justice Act was undergoing major renovations in another Labour-led House of Commons early in 1948, an MP invoked the 1930 report when he attached an amendment to the effect of its conclusion to the bill. The nation was flabbergasted when the Commons passed the bill intact, after heated debate, by 245 votes to 222. The House of Lords, however, quickly came to the 'rescue' and used their rarely-exercised power to throw out an entire Commons-approved measure (Hopkins 1963:213-4).

To try and put the minds of the overridden MPs at ease, the Government set up another Royal Commission in 1949, under the chairmanship of Sir Ernest Gowers. It was not supposed to consider the respective advantages of abolition and retention per se, but 'whether the liability to suffer capital punishment should be limited or modified'. The objective of the Government was to reduce resistance to executions, possibly by introducing a more modern method of execution, and exempting from the death penalty some kinds of non-premeditated murder and murder committed by the mentally unstable.

A big anomaly in the English law was indeed the lack of a concept of 'diminished responsibility' between 'criminal insanity' and guilt – when the murderer had not been insane, but not in a normal mental state either, the jury could only find him guilty and send a recommendation for mercy to the Home Secretary. This problem got enormous publicity late in 1952, when a sixteen-year-old Croydon boy, Christopher Craig, murdered a policeman during a burglary attempt. His accomplice, the nineteen-year-old Derek Bentley, had been held by the police for a while by the moment Craig fired the fatal shot, but they were both found guilty of the murder. The case became even more outrageous when Craig escaped hanging because of his age, but Bentley, under arrest when the murder was committed and mentally on the level of a child, was sentenced to death. The sentiment of the public was clearly on his side, and petitions for mercy were signed by huge numbers of people, including 200 MPs from all parties. But the Home Secretary, Sir David Maxwell-Fyfe, was known for being exceptionally blunt towards murderers' appeals, and even the pleas of his fellow Conservative politicians in the name of political expediency failed to convince him. Bentley was hanged in January 1953 (Hopkins 1963:214-6). Later that year, the Gowers Commission released its extensive report, one not fulfilling the wishes of the Government. If there was to be any reform in death penalty law, it concluded, it should be the abolition of capital punishment. Again no action whatsoever was taken by the Government, and executions went on.


1.2. The 1955-1957 debate and the 1957 Homicide Act

On 13 July 1955 Ruth Ellis was hanged at Holloway Prison, London. In some ways her execution aroused the public interest, and sympathy, even more than that of Bentley. She was a troubled mother of two who was tired of everything in the world, but especially her faithless lover, whom she shot. Her attitude towards her fate was really one of total indifference. She had thanked the judge upon hearing her sentence. There was nothing solemn or chastening about her death. It was mainly this execution that sparked off a new wave of controversy which led to hangings being suspended in Britain for almost two years and an important legislative step being taken towards no capital punishment.

A nationwide anti-hanging campaign was organised in 1955-1956, led by Sydney Silverman, the Labour MP for Nelson and Colne, and Victor Gollancz, the publisher. Several notable names published books on the subject, including Arthur Koestler, who had himself been sentenced to death in Spain during the civil war, and Albert Camus. The debate went on and on in the media and the House of Commons, enhanced by the premature resignation in 1956 of Albert Pierrepoint, Britain's chief hangman for decades – for reasons of conscience, it was said. Another abolition bill, in the name of Silverman, was finally given its third reading by the Commons on a free vote in June 1956, but again the Lords blocked the project, by a convincing vote of 238-95 (Bromhead 1966:59).

Government's, and to some extent the abolitionists', face was thought saved when an apologetic compromise bill was authored by Sir David Maxwell-Fyfe and presented to the Commons. It restricted capital punishment to six special kinds of murder regarded as being the 'worst' of all homicides, and introduced the concept of diminished responsibility carrying a reduction of the charge to manslaughter (Hopkins 1963:217). Approved by both Houses, it became law as the Homicide Act, 1957, and the murders for which the death penalty remained on the book were:



2.1. Total abolition as part of the 1965 Murder Act

It was soon apparent to everybody that in spite of high hopes, the new Homicide Act wasn't a good measure. Despite the diminished responsibility clause, it allowed the executions of Gόnther Podola, who did according to medical witnesses suffer from amnesia at the time of the crime, and Hendryk Niemasz, who had apparently murdered while sleepwalking! And those who had committed a crime of passion by shooting or killed a man accidentally while stealing a few pennies from him were liable to get hanged, while those who had planned their murder in cold blood but done it with poison or a knife were safe from execution.

The 1957 Act actually gave Britain a good taste of what total abolition of hanging would be like. It dramatically reduced the number of executions – in the first six years of the 1950s there were eighty-seven hangings, around fifteen a year, when in the eight years from 1957 to 1964 there were twenty-nine, less than four a year (The Times, 12 April 1965). In 1963 and 1964 there was just one double execution each year. Despite this there was no notable increase in homicides. Similar evidence was offered by many abolitionist countries – in the early 1960s Britain and France were in fact the only two democratic countries in Europe to carry out executions, and nowhere was society near collapse. (The final guillotinings in France occurred in 1977.)

The victory of the Labour party in the 1964 General Election gave new hope to the abolitionists, who thought that even the House of Lords had probably changed its general attitude since 1956. After the House of Commons had once again recorded its favouring total abolition of capital punishment on a free vote in December 1964, another Private Member's bill by Sydney Silverman was taken into consideration. After much discussion and attempted abolition-limiting amendments in committee and then in the Commons, the bill got its third reading by a crunching 200 votes to 98 (The Times, 14 July 1965). A week later, in spite of the pathetically furious protests of Lord Kilmuir, the former Sir David Maxwell-Fyfe, the House of Lords also approved of the bill with a similar 2-to-1 majority, 204 to 104 (The Times, 21 July 1965). After the bill received its Royal Assent the Murder Act, 1965, was born.

The Act included an amendment introduced by Henry Brooke, the previous Conservative Home Secretary, to the effect that it was to expire in five years unless both Houses voted to keep it permanent. After four and a half years it was inevitable that the experiment had been a success. Murders were continuously decreasing during an era that saw a considerable rise in other forms of violent crime, and although there had been an increase in murders by shooting, there had also been a similar increase in suicides following those murders. James Callaghan, the then Home Secretary, moved a motion to remove the five-year clause from the Act, and it was carried by both Houses on 18 December 1969.


2.2. Attempts to reintroduce capital punishment

Today, Britain remains the only country in western Europe where a return to capital punishment is regularly proposed seriously. The leaders of the Conservative party reluctantly have to face their hanging lobby at the party conference every autumn, and in recent years bills to restore the death penalty for all murderers or the murderers of police officers have been introduced in the House of Commons by Conservative back-benchers every time they have had the chance. The motions have most often been moved by Elizabeth Peacock, the self-appointed leader of the pro-hanging Conservatives. But the bills have invariably been rejected on free vote by vast majorities – the most recent results, on 21 February 1994, were 406-161 for all murders and 385-188 for police murders (Boothroyd 1995).

The back-benchers usually emphasise that they are not seeking mere revenge and that capital punishment is a better deterrent than imprisonment. They have, however, never managed to produce any concrete evidence for this. Instead they have cool-headedly tried to misinterpret the actual statistics, for example by comparing the pre-abolition murder rate with the naturally much higher post-abolition homicide (murder, manslaughter and infanticide) rate. In fact, the annual number of murders in Britain in the late 1980s was between 130 and 170, down from the approximately 290 of the early sixties (Holway 1991).

The rise of international terrorism in the seventies and eighties led to MPs' invoking the specific threat of terrorist acts in defending hanging. But their opponents have been quick to point out that terrorist murders are the ones for which the death penalty is most inappropriate: first, the martyrdom created by execution may actually entice terrorists to commit murder to win publicity for their cause, and second, the great number of people involved in terrorism cases might result in especially tremendous miscarriages of justice.

According to a statement by David Maclean, the Home Secretary, in the House of Commons on 13 December 1993, only nine persons convicted of murder in Britain since 1969 and subsequently released had committed murder again by 1993. On the other hand the number of innocent people convicted in the seventies of the Birmingham and Guildford pub bombings alone was ten (Ewing and Gearty 1990:18-19 and 252). As regards miscarriages of justice, there are also the earlier cases of James Hanratty, executed in 1962 for a murder Peter Alphon later confessed to committing and framing Hanratty for, and Timothy Evans, hanged in 1950 for the murder of his wife and daughter three years before it was found out that his neighbour, John Christie, was a serial killer.

The pro-hanging people are a vociferous minority, even within those who vote Conservative. The 1992 British Election Study indicates that only 49 per cent of Conservative supporters would endorse the restoration of hanging (Whiteley, Seyd, and Richardson 1994:66). To the Labour and Liberal Democratic parties and their supporters the death penalty remains the non-issue it is in all other Western European countries. The fact is that there is no real threat of a person being judicially hanged in Britain ever again, even for high treason or piracy on the high seas, the two remaining capital offences unaffected by the Murder Act.



To Michel Foucault (1975:15) the abolition of public executions, in Britain in 1868 and in France as late as 1939, signifies the death penalty's ceasing to be a great spectacle directly involving the general public and becoming 'a strange secret between the law and those it condemns'. That may well have been its intended role, but in fact the great Execution Experience of the public entered a phase even more fascinating than before.

The relative openness of European government quickly allowed the protocol for secret executions to become public knowledge. Its time-table and other details – the stressing of the rope with sandbags, the tot of brandy just before the last walk, the death certificate always describing the execution as having been carried out 'expeditiously and without a hitch' – surely crossed the minds of millions of people every time a well-publicised execution took place. The secrecy of modern executions actually contributed to the arousal of morbid interest in a way resembling the one in which the 'mind's eye' of the reader makes novels appear more realistic.

Especially when the hangee was thought to be a victim of circumstances, there was a hint of moral regret and ambivalence in this voyeurism; the collective mind saw a haunted creature gliding towards inevitable but merciful doom, somewhat like the Lady of Shalott. In an introduction to a volume of 'classic' murder trials, John Mortimer (1984:7-8) remarks that

There is a school of writers on famous trials which would attribute some decline in the quality of murder cases to the abolition of the death penalty. 'It was the fatal question, and as it was asked those in Court felt they saw the shadow of the scaffold fall across the wretched Jones' was the sort of sentence which figured often in their accounts. Indeed, the writers included here sometimes rely on the outcome of a capital trial for their dramatic effects. 'Death was dealt to him [Armstrong, the poisoner], writes Filson Young, 'on that May morning, while the birds in Cusop Dingle were singing about the house where his children were awaking, with the swift and merciful efficiency of modern methods; and for the sins that he committed he paid up to the full measure of his capacity to pay -'.

Even if the 'fears' of the school of writers referred to above are justified, there are other ways of still reaching an approximation of the Execution Experience in contemporary society – this time by underlining the very fact of hangings' being no more.

First there are the phenomena accompanying nearly every murder trial of any notoriety, and especially the trials of serial murderers such as Rosemary West or Brady and Hindley, the Moors murderers. Relatives of the victims, and even those of the defendants, make sob-filled pleas for (or sometimes against) a return to hanging. Shallow talk shows and the tabloids feast upon dubious phone-polls. Television no longer has to do with old newsreels of legendary hangings, since the stories of both Derek Bentley and Ruth Ellis have been filmed during the past decade (as Let Him Have It, 1991, and Dance with a Stranger, 1985, starring Miranda Richardson as Ellis). The media repeat once more all the old arguments purporting to give the man in the street a chance to do his own soul-searching on the issue, which has in fact stripped itself of all real political relevance and entered the realm of what Jacqueline Rose (1988) has appositely called 'public fantasy life'.

But many still remember the time when people were actually hanged, and once they get past the distress of well-publicised murders the sentiments of most are ones of regret. The hangees that are liable to be remembered are the unlucky ones, like Ellis and Hanratty, while the memory of more loathsome murderers like Christie has faded out, partly because they are no longer alive. The recurrent hanging-withdrawal symptoms are presented with suitable catharsis when the people remember the actual rigidity of the law as it was, the inevitable miscarriages of justice, and the fact that there is still no proof whatsoever that executions are a better deterrent against murder than lengthy imprisonment. Just like British 'stiff upper lip' stoicism once made an excuse for the prevalence of executions, it can now help in lugubriously accepting their obsolescence.




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