Matthew Barrett: Britain should never have abandoned capital punishment - but it's now too late to return to it

By Matthew Barrett
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The debate over the death penalty is the classic public/political class divide. The public has backed the death penalty ever since it was abolished, while the political class has been against it for decades.

Why? It's hard to tell. The paradox within the public/political divide is that in general, working class Britons support the death penalty far more than do the middle classes, yet the only party which stood up for the death penalty in any meaningful way was the Conservative Party until the 1990s. Labour have been against it (as the Lib Dems have) for much of that party's history, despite most constituents in many Labour seats backing it. Ditto, historically the Tories defied their middle class constituents to vote in support of the death penalty. 

The penalty was abolished under the Murder (Abolition of Death Penalty) Act 1965. While this is a terribly official-sounding piece of legislation, it wasn't a grand government Bill. It was passed as a Private Members' Bill by the Labour MP Sydney Silverman. Silverman was an interesting figure on the hard-left of British politics. He refused to fight in the First World War on socialist grounds, he co-founded the CND, and was opposed to European rearmament after the Second World War. This latter cause meant he was expelled from the Labour Party twice during the 1950s and '60s. But his most important legacy, of course, was the abolition of the death penalty.

Hoping to capitalise on Britain's war-weary mood, Silverman first tried to get abolition through the House of Commons in 1948. After passing the lower house, the Lords rejected Silverman's Bill, so the Labour Home Secretary of the day, James Chuter Ede, created a Royal Commission instead to investigate "whether the liability to suffer capital punishment should be limited or modified". The Royal Commission made some recommendations regarding the treatment of mentally ill prisoners, and prison conditions, and even said that abolition would be preferable for ethical reasons, but the Commission's report concluded that unless there was overwhelming public support in favour of abolition, the death penalty should be retained.

While the Royal Commission was finding evidence, two prominent executions were carried out. Timothy Evans in 1950, and Derek Bentley in 1953, which were widely seen as the result of miscarriages of justice. The reputation of the death penalty was dealt a blow. Following the Royal Commission's conclusion, another execution was carried out which undermined the death penalty in the eyes of the public - Ruth Ellis in 1955. Silverman had another go, with the Death Penalty (Abolition) Bill, in 1956. Again, he could not pass his Bill, but was rewarded with another partial success: the Homicide Act 1957, which limited execution to only six categories of murder:

• in the course or furtherance of theft
• by shooting or causing an explosion
• while resisting arrest or during an escape
• of a police officer
• of a prison officer by a prisoner
• the second of two murders committed on different occasions

The police and the government believed that reserving the death penalty for murder by shooting helped stop gun crime from being widespread in Britain.

Public opinion has always treated murder in certain circumstances as being more deserving of the death penalty than murder in general. For example, an Ipsos-MORI poll (pdf) in July 2010 presented people with a list of crimes, and asked people which they thought should have the death penalty - 62% supported it for child murder, but only 51% supported it for adult murder in general. A YouGov poll (pdf) in November 2010 found 74% of people surveyed supported the death penalty for murder in some circumstances, but only 16% supported it for all murders.

Presuming the British public had roughly the same instincts in 2010 as in the 1950s, the Homicide Act 1957 was the right move: restrict the death penalty to specific offences which few could argue against. However, far from restoring public confidence, public support continued to be undermined by the fact that the Home Office decided, in secret, which death sentences should result in the death penalty. They were isolated from public opinion, and completely misjudged the public mood on a number of occasions during the '50s - as with Ellis, Evans and Bentley. As well as public opinion, the prison establishment was becoming more liberal, and began to favour ideas like "rehabilitation" of serious criminals instead of punishment.

After Labour's victory at the 1964 general election, Harold Wilson and his Home Secretary, Sir Frank Soskice, made abolition of the death penalty a priority for their government. Yet, knowing the public would ultimately decide to retain the highest punishment available, Labour did not include it in their manifesto. Sydney Silverman finally passed his Murder (Abolition of Death Penalty) Act 1965, which provided for a five-year trial abolition, to be made permanent if thought appropriate - effectively abolishing it in November 1965 (James Callaghan made abolition permanent in 1969 throughout Britain, although abolition in Northern Ireland came into effect in 1973).

The wisdom of abolition was immediately tested. Ian Brady and Myra Hindley were arrested at the same time as the Act was being passed through Parliament. A year later, Harry Roberts, John Witney and John Duddy murdered three police officers who were trying to question them.

I am in favour of the death penalty - not because I believe it is natural justice, or because I would enjoy the prospect of murderers being hanged, etc, etc, but because of its use as a deterrent. Note this chart, showing the instant rise in murder as soon as the death penalty was abolished:

Also note the fact that total murders did not top 100, even in 1968. Compare that to today's figure: 

"The number of murders and killings in England and Wales has fallen to the lowest level in nearly 30 years, Office for National Statistics figures show. Police recorded 550 homicides in 2011-12, 88 fewer than the previous year and the lowest number since 1983."

The population of Britain in 2011-12 is not five times bigger than in 1968. There haven't been drastic improvements in weapons technology over the last forty years which would explain the increase. So what changed? Culture. The criminal class has never been more free to commit murder without fear of genuine punishment.

As previously mentioned, public opinion favours a return to the death penalty, but, in 2010, the percentage who wanted the penalty to exist for adult murder in general was only at 51%. This is relevant because it shows public opinion is just about in favour of a return - and is slowly creeping towards those who oppose the death penalty, but also irrelevant, because no-one would today propose a blanket death penalty for all adult murder. What could explain the gradual slide against a return to the death penalty? A good number of percentage points over the last few decades could simply be explained by the death of older generations. That in itself tells us something - it's instructive that those who were alive at the time of the death penalty existing were in favour of it. 

David Cameron has argued against the death penalty. He said:

"[I]f someone murdered one of my children then emotionally, obviously I would want to kill them. How could you not? But there have been too many cases of things going wrong, of the wrong people being executed, of evidence coming to light after the execution, and sometimes there is just too much of an element of doubt. And I just don't honestly think that in a civilised society like ours that you can have the death penalty any more."

Technology is far too advanced now for it to be likely that judges would be in the position of sentencing people to death for crimes they did not commit. Attitudes are too different now for the mentally ill (Derek Bentley) to be hanged, or for those like Ruth Ellis to be given the death penalty. As for the second argument, that the abolition of the death penalty is a hallmark of a "civilised" country - why? What is civilised about a five-fold increase in murders over forty years? I would prefer to live in a country with a stiff and sometimes uncomfortable punishment to deter potential murderers than one in which the political and legal establishment congratulates itself for being "civilised" enough not to severely punish murder. 

What hope is there for the death penalty's return? There are few open parliamentary supporters of a return today. The last serious vote on the subject was held in 1994, and was comfortably decided in favour of abolition. The only reliable pro-death penalty MPs are those of the Democratic Unionist Party (I suggest it's not a coincidence that DUP MPs favour the death penalty when Northern Ireland has historically had (pdf) some of the highest murder rates in the European Union area). Some right-wing MPs have voiced their support of a return. Philip Davies and Andrew Turner have spoken out, as have Priti Patel and David Nuttall from the 2010 intake.

On the whole, however, Tories in parliament have shifted against a return. There are no longer any serious moves on the subject at conference, and there are no debates in the Commons. This is primarily for two reasons. Firstly, Tory MPs are aware, whether they agree with the situation or not, that it would potentially take years of legal wrangling with various European and international courts in order for a return to the death penalty to be possible. Secondly, they will be roughly aware of the polling which shows the death penalty to be less popular than in decades past.

Even amongst Tory members, rather than MPs or the public at large, support has also weakened. In a survey conducted by ConservativeHome last August, only 46.4% of members supported the death penalty for a serial killer, 45.4% for a terrorist killer, 35.6% for the murder of a policeman, 35.5% for child murderers, and only 21.4% for any murder. Without making generalised comments about Tory members, perhaps the stronger support for the death penalty amongst working class Britons, and weaker support amongst the middle classes helps explain this.

The death penalty, whether you agree with its ethical implications or not, was only abolished at the third attempt, without the democratic consent of the public in the form of a manifesto commitment, after a number of high profile miscarriages of justice which seem archaic now, made possible because of the strange decisions of a secretive and unaccountable Home Office establishment. It should not have been abolished without the public being allowed to vote for it in a manifesto, and the death penalty would not have produced the miscarriages of justice that made abolition acceptable if it still existed today.  Public opinion has always favoured its return - but the public's attitude appears to be turning, finally - and the last chance for proper punishment for murder may well have slipped from Britain's hand.