This lecture explores the death penalty's roots, its abolition in England and Wales, and its continuation in the Commonwealth Caribbean. Analysing the Privy Council's role in perpetuating this practice, this punishment is examined closely.
Is it a colonial relic which reinforces societal injustices? Is it time for its complete abolition?
A lecture by Leslie Thomas KC recorded on 28 September 2023 at Barnard's Inn Hall, London
The transcript and downloadable versions of the lecture are available from the Gresham College website: https://www.gresham.ac.uk/watch-now/death-law
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<laugh>, is it working? Yeah. Yeah. Great.<laugh> good. Okay, perfect. Well, good evening everyone, and, uh, thank you for joining us. Uh, just a short announcement before we, uh, start this lecture. Uh, we are now using Slido for all our lecture to collect, uh, the questions for the q and a session at the end. Um, so it's very easy to use. All you need to do is to, uh, point your camera, phone the, uh, towards the QR code and follow the link, uh, to submit your question. But if you don't have a phone, don't worry. Uh, a member of the team will, uh, still go around at the end. Um, tonight we are absolutely delighted to welcome back Professor Leslie Thomas for his fourth year as a Gresham professor of law, and tonight he will be speaking to us on the death penalty, a Colonial Relic. Thank you. Thank you for coming. Um, this is my last lecture series. This is my last year as a, um, GRE Gresham professor of law. And I wanted to have something challenging, uh, to, to go out with. So this lecture series is entitled Hard Choices. The Laws Struggle with Ethical Dilemmas. Um, before I start this lecture, which is on the death penalty, a colonial re relic, I want to just say thank you to you for your support over the last, um, uh, three or four years. And I also want to thank, uh, Sally McLaren, assistant librarian at the Inna Temple for helping me, uh, put this lecture together. And also to David Neil, who's a researcher at Garden Court Chambers, who you know, did, did a considerable amount of work pulling the materials together for me. He deserved death, deserve it. I dare say he does. Many that live deserve death and some that die deserve life. Can you give it to them then? Don't be too eager to deal out death in judgment for even the very wise cannot see all ends. J r r Tolkin in a world rife with inequality, violence, and the struggle for justice, one question looms large, why should the state be constitutionally entitled to kill people in the Commonwealth Caribbean and not in the uk? Is it a simple vestige of colonial law, or is there something more insidious, deeper reason rooted in our understanding of justice, punishment, and human rights as we navigate through the labyrinth of this topic today? It is a big topic let's us be unflinching in our scrutiny for the issues, speak to the very heart of what society deems justifiable, what we believe about human life and ultimately what we hold sacred. The death penalty is a highly contentious political and legal issue in the Commonwealth, uh, Caribbean. While the death penalty has long been abolished in the uk, it continues to be practiced throughout the Commonwealth Caribbean and has given rise to more constitutional litigation in that region than any other issue. Even though the practice of execution by hanging is a relic of British colonialism, many Caribbean people continue to support it. Indeed, paradoxically, some people in the Caribbean argue that attempts to abolish or restrict capital punishment are a constitu, uh, a colonialist in position of European values on the Caribbean. So what are the pros? The question inevitably invites argument in favor of the death penalty. Some contend it serves a powerful deterrent against violent crimes. Others see it as a form of justice. The notion of cultural autonomy looms large as well, a certain that the Commonwealth Caribbean has a legal prerogative to enshrine, to enshrine its own ethical norms. Lastly, proponents claim that it delivers a sense of closure to families and communities devastated by heinous horrendous crimes. We have to respect these arguments because they're not trivial and they deserve our scrutiny. So what are the cons? While these points may at first glance seem compelling, when we take a closer look, we see the inherent flaws that are called into question the very foundation of such arguments. Firstly, any claim to deterrent efficacy is marred by inconclusive and contradictory empirical data. Secondly, the death penalty risk extinguishing innocent lives, a fatal error that can never be corrected. Thirdly, the application of capsule punishment is often marred by systemic bias and injustice and undeniable stain on any legal system. Fourthly, the ethics of state sanctioned killing remains murky, putting us in an uncomfortable position of combatant violence with even more violence. And lastly, one must grapple with the human capacity for change in redemption. You see, the death penalty offers no space for such possibilities, instead delivering a grim and irreversible verdict. But all of that to come, I'm getting ahead of myself. So where to begin? We're gonna start by looking at the history and the origins of the death penalty in the in Britain's Caribbean colonies. Next we're going to look at the key developments constitutional litigation about the death penalty since independence and the way in which the Privy Council and the Caribbean Court of Justice have restricted its imposition. And finally, we're going to look at the moral and political arguments commonly proffered for the death penalty and the reasons why they don't stack up. So let's turn to the origins. The Commonwealth Caribbean inherited its legal system from England, and that includes the death penalty. As I mentioned in a previous lecture, there was a time when the death penalty was extremely widely used In England. In the late 18th century and early 19th century, there were hundreds of capital crimes, including many property crimes that were trivial by modern standards, including many property crimes. There was a body of law known as the bloody code. During the course of the 19th century. These were gradually whittled down, and by 1861, there were only five capital crimes, murder, treason, espionage, arson in the royal dockyards and piracy with violence at common law. In England, the death penalty was mandatory for murder. Everyone convicted of murder had to be sentenced to death regardless of any mitigating circumstances. The rule obviously had harsh effects, but, and over time it was mitigated by various statutory reforms. The Infanticide Act of 1922 made special provisions for mothers who killed their children in the 12 months after birth due to postnatal depression and similar conditions rather than murder. The Homicide Act 1957 restricted the death penalty for certain cases of murder only, and the 1957 Act also created partial defenses such as provocation and diminished responsibility, which reduced murder to manslaughter. Finally, the death penalty for murder was abolished the England and Wells by the murder, abolition, and death Penalties Act of 1965, English law was exported to the colonies, but there's always been an important difference between English laws and colonial laws In early times, the most important difference was the existence of slavery. In Britain's Caribbean colonies with slavery came extraordinarily brutal laws aimed at controlling the enslaved population. As Anthony Phillips notes, the Barbados Act of 1688 sets this out plainly. Quote, for as much as the said Negroes and other slaves brought under the people of this island are barbarous, wild savage of nature. And as such, renders them wholly unqualified to be governed by the laws, customs, and practices of our nation. It is therefore becoming absolutely necessary that such other constitution laws and orders should be in this island, framed and enacted for the good regulating and ordering of them as may restrain the disorders repins and inhumanities to which they are naturally prone and inclined. End quote, Phillips highlights that in Barbados they're not nor colonies. It was held that the common law did not apply to slaves. Enslaved people were considered property, not people. Slaves could be and often were punished by their masters. And those also a slave court, a special tribunal composed of two justices of the peace and three freeholders slaves had no right to trial by jury. Punishments handed out by the court included the death penalty and whipping with the Cato nine tales. As most people know, slavery in the British Caribbean was abolished by the Slavery Abolition Act of 1833. However, the death penalty was not in relation to Barbados. Lindsey Black and others write that quote, following the ending of slavery, practices of punishment continue to serve theocracy through their control and coercion of labor. Crucially, the number of capital statues increase significantly in these years In Barbados, the classification of property offenses as capital offenses occurred during a period in which the reverse was happening in Britain. In other words, while the death penalty was in decline in the metropolitan core, it was being expanded as a means of control of British colonial subjects in the Caribbean. Black and others acknowledge that there is evidence that capital punishment was actually not frequently used in the Caribbean in these decades, but they highlighted that death worked as one of the tools of coercive network that could be deployed in the colonies, and that criminal justice was integral to the maintenance of colonial order. So that is the context of the British Caribbean death penalty. It was imposed by our former colonial masters as a racialized means of controlling the colonial subjects both before and after the abolition of slavery. It is not an accident that the method of execution used throughout the Commonwealth Caribbean is hanging, which was historically the British method of execution. It's noteworthy that the enduring legacy of the death penalty in the Caribbean isn't unique, but rather part of the broad pattern of colonial imposition that extended across the globe from Africa to Asia. The British colonial administration promulgated its penal code codes, tailoring the strictness of laws and the sociopolitical context of each territory. So while English law was exported to the colonies, the law was often harsher in the colonies than in the Metropolitan Court. Crucially, the British colonies of the Caribbean absorbed the English common law rule that the only sentence that could be pronounced on a person convicted of murder was death. Many retain this rule up to and after their independence from the UK in the sixties, seventies and eighties. Today, Trinidad and Tobago is the only commonwealth Caribbean jurisdiction that retains the mandatory death penalty for reasons that we will look at shortly. However, each independent state of the Commonwealth Caribbean retains the death penalty in some form Constitutional litigation about the death penalty. As I've mentioned, the sixties, seventies and eighties, most of form of British colonies of the Commonwealth Caribbean became independent states. They adopted constitutions which contained bills of rights. Unlike the UK Human Rights Act, the Bill Bill of Rights in the Caribbean constitution prevail over country legislation so that legislation can be struck down, um, by the courts if it is held to violate the constitutional rights. The constitutional, uh, Caribbean states also retained a judicial committee of the Privy Council in London as the highest court of appeal. Although as of explained in a previous lecture, some states have now replaced the Privy Council with the Caribbean Court of Justice as the heist court. We'll return to that significance in, in, in a moment, the Bill of Rights of Caribbean constitutions, however expressly allow for the death penalty. For example, section four, the Constitution of Antiguan Barbuda states no person shall be deprived of his life, intentionally save in execution of a sentence of a court in respect of a crime of treason or murder of which he has been convicted. Another limit on the protection provided by Caribbean constitutions is that most of them contain saving clauses to a greater or lesser extent immunizes laws from constitutional challenge where those laws predate the Constitution. The wording of the saving clause is differs significantly between constitutions and we'll come back to that significance. But the saving clauses have an input significant break on the development of constitutional jurisprudence in the Commonwealth Caribbean. As Margaret Burnham states, the saving clause has become a constitutional Frankenstein's monster destroying the founding instruments of central covenants and leaving behind a pitiful pile of unrealized hopes. Clearly given that Caribbean constitutions expressly allow for the death penalty, there was no wrong to argue that the death penalty per se was unconstitutional. And although hanging is now regarded internationally as an unnecessarily brutal method of execution, the Privy Council held in Bora against Baptiste that hanging was immunized from Unconstitutionality by Trinidad and, uh, togo's saving clause. However, that did not mean there was no room for constitutional challenge to death sentences. The Privy Council found this a difficult issue as illustrated by the number of times it has overruled its own decisions in this area sometime within a very short space of time. This affiliation by the Privy Council highlights the complexity of navigating moral, legal and social terrains on the issue of the death penalty. Each overturning decision reflects not only an internal judicial debate, but also broader convent con conversations about human rights, state sovereignty, and evolving standards and decency. One important area of challenge was the delay in the carrying out of the death penalty. Historically, both in England and throughout the Commonwealth, executions had been carried out quickly after the imposition of sentence, and the idea of executing the person after long delay was considered a barren. In fact, 1947, in 1947, questions were asked in the House of Commons about a case in the British colony of the Gold Coast now Ghana, in which a number of men had been six times brought up for execution over a period of years with Winston Churchill calling this an affront to every decent tradition of British administration. And Clement Clement Davis stating that never in history of this country has a postponed capital sentence been carried out as it has realized that this would deeply shock public sentiment. But by the late 20th century, things have changed due to increased availability of appeals and other routes of challenge, such as petitions to the UN Human Rights Committee or the Inter-American Convention on Human Rights. In a landmark case of Pratt against Morgan Pratt and Morgan against the, uh, attorney General of Jamaica, the Privy Council held that to execute a condemned man after a delay of 14 years was unconstitutional. They anticipated that the the appeals process should normally take no more than two years, and the applications to international bodies should normally take no more than about 18 months. They held that in any case in which an execution is to take place more than five years after sentence, there will be strong grounds for believing that such a delay constituted in inhuman and degrading punishment or other treatment within the mean of the Constitution. The Pratt Morgan ruling was a watershed moment, not only for the jurisprudence of the Commonwealth Caribbean, but also for global human rights dialogue. The decision resonated well beyond the Caribbean influencing other jurisdictions and international bodies. In considering the ethics and constitutionality of prolonged delays in executing a death sentence. The the five year period was a rule of thumb. It did not mean that delays of less than five years would inevitably be upheld as constitutional in Guerrera and Baptist. A delay of four years and 10 months was held to be unconstitutional in the circumstances of the case in Henfield against the Attorney General of The Bahamas. It was held that the general limit in The Bahamas was three and a half years because The Bahamas was not a signatory to international covenants on civil and political rights and to the, uh, optional protocol, meaning that time did not have to be allowed for a petition to the Human Rights Committee in Fisher against the Ministry of Public Safety and Immigration. The Privy Council held that executing the person before their petition to the Inter-American Commission on Human Rights had been dealt with, did not constitute in human treatment contrary to the Constitution of Bahamas. I'll say that again. Held that executing the person before their permission to the Intercon, uh, inter-American Commission on Human Rights had been dealt with, did not constitute in human treatment cons, contrary to the constitution of The Bahamas, Fisher also held that pretrial delay did not count towards the maximum period in Pratt Morgan. It was also noted that in Henfield it had been overlooked that the Baha Bahamians did have an opportunity to apply to the Inter-American Commission on Human Rights pursuant to the charter of organizations of American states, meaning that the reduction in henfield of the relevant period from three and a half years to five years had been incorrect. Fisher was qualified by Thomas against Baptist, in which the Privy Council, uh, held that the constitutional right to due process of law under the constitution of Trinidad and Tobago did require execution to be delayed until the inter-American Commission had dealt with a petition it held by ratifying a treaty which provided for individual access to an international body. The government had made the process part of the domestic criminal justice system, thereby temporarily at least extending the scope of the due process clause in the Constitution. And while it could take away that right for the future, it could not do so retrospectively. On the other hand, in Higgs against the Ministry of National Security, it held that the same did not apply to The Bahamas, which had not ratified the Inter-American Convention on Human Rights. And in respect of which the Inter-American Commission jurisdiction was more limited, this line of jurisprudence was extremely controversial in the Commonwealth Caribbean. David Simmons qc as he then was the then Attorney General of the Barbados, said in a 2000 in election in 2000 quote, the cognitive effect of the decisions of the judicial Committee of the Privy Council and the attitude of of international human rights body have engendered the greatest uncertainty in the region about the ability of governments to carry out death penalties in suitable cases. Our people believe that British judges are making a mockery of the death penalty and by policy decisions are virtually abolishing the penalty for the Caribbean in order to make the region comply with u with a European movement for its universal. Abolition Simmons argue that the Commonwealth Caribbean countries were between a rock and a hard place since they were required to wait for the outcomes of petitions to international bodies before executing the person, but were not permitted to execute them if the five year limit were exceeded. The phrase rock in a hard place aptly encapsulates the conundrum faced by Caribbean states, it points to an intricate web of national imperatives, regional pressures and international obligations that make straightforward policymaking in this area almost impossible. These multi-layered complexities are an essential backdrop against which constitutional litigation occurs. This kind of populace rec rhetoric is not uncommon in the Commonwealth Caribbean. Despite the death penalty itself being a product of British colonialism, many Caribbean politicians have ironically decried the Privy Council's telman of executions as a colonial imposition by British judges against the will of Caribbean people. This ironic turn of events presents a compelling study in political rhetoric while the death penalty originated as a tool of colonial control. Its current critique by British judicial bodies is framed as yet another form of colonialism. This complex entanglement of past and present colonial and colonizer merits closest scrutiny for it reflects the deeper anxieties about identity or autonomy and justice that plague post-colonial societies. Meanwhile, there are other innovations in death penalty jurisprudence in Lewis against the Attorney General of Jamaica. The Privy Council overruled its dec its own decision in Deus against Benny and directly against the ministry of, uh, uh, of public safety and immigration to hold that a person sentenced to death who was being considered for the exercise of the prerogative of mercy by the Jamaican Privy Council, had the right to see the material on which the council was to rely and to make representations as to why their sentences should be commuted. Another important area of constitutional challenge was the mandatory nature of the death penalty in most Caribbean territories. As long ago as 1976, the United States Supreme Court of Woodson against North Carolina held that the mandatory death penalty for murder without consideration of the circumstances of the particular offense, constituted cruel and unusual punishment, which violated the eighth amendment of the United States, um, constitution. Now there's been obviously room for similar changes in the Commonwealth Caribbean. This came to fruition in Raise against the Queen, a case from Belize in which the Privy Council held that the mandatory deaths penalty without regard to the individual circumstances of the offender constituted inhuman and degraded punishment. The Raises case serves as a crucial pivot in, in the discourse surrounding the mandatory death penalty. Draw attention to the importance of considering individual circumstances. It opened the door for one that is not merely punitive, but also attentive to the complexities of human behavior and social context. By setting this precedent, the court indirectly challenged the Caribbean states to reevaluate not just the application, but the very essence of the death penalty as it stood in their constitutions. But there was a snag, which was the saving clauses. This was not an issue in raise because the constitution of Belize does not have saving clauses, but it had to be confronted in the case of other Caribbean states. I discussed this in my previous lecture on the Caribbean, um, court of Justice, but I'll summarize it again here quickly. In Hughes Crown against Hughes and Fox against the Queen, the Privy Council construed the saving clause in St. Lucia and St. Kitts Nevis. In both cases, they held that the saving clause did not immunize the mandatory death penalty from constitutional challenge. The reason for this laying the precise word of the saving clause in St. Lucia, the saving clause is contained in the case of Hughes Red. Quote, nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention with section five of the Constitution. To the extent that the law in question authorizes the infliction of any description of punishment that was lawful in St. Lucia immediately before the 1st of March, 1967, the Privy Council held that this did not protect the mandatory death penalty because the Impune law did not merely authorize judges to impose the death penalty, but required them to do so. But other constitutions whose saving clauses were more broadly worded presented a greater problem in respect of Jamaica. The saving clause did not protect the mandatory death penalty from unconstitutionality in Watson against the Queen because Jamaica had amended its death penalty statute since the since independent to create categories of capital and non-capital murder. So it was not an existing law to which the saving clause applied in Rual against the state of Trinidad and Tobago. The Privy Council held with the saving clause of Trinidad and Tobago, which provided that an existing law could not be held to be inconsistent with or in contravention or with fundamental rights that was self-evidently much broader than the saving clause considered in the cases of Hughes and Fox. The Privy Council found a workaround. They relied on Section five, one of the Constitution of 1976, the instrument which brought the constitution into force, which provided that quote, the existing laws shall be construed with such modifications, adaptions qualifications, and exceptions as may be necessary to bring them into conformity with this act. End of quote, the Privy Council used this as a modification power to construe the mandatory death penalty as a discretionary death penalty. This work around by the Privy Council illuminates the often complicated dance between constitutional text and judicial interpretation. When an explicit constitutional provision such as a saving clause comes into direct conflict with evolving norms and human rights standards, courts may find themselves navigating labyrinth of legal, ethical, and public pressures. The utilization of a modification power in this context is not merely a judicial maneuver. It's a testament to dynamic nature of constitutional law, especially when it intersects with matters as deeply contentious such as the death penalty. However, there was a dramatic turnaround less than a year later in the case of Boce against the Queen, in which a nine judge panel of the Privy Council overruled rual and upheld the constitutionality of the mandatory death penalty in Barbados. On broadly, uh, so on the basis of a broadly worded saving clause, although I previously delivered a full lecture on this subject, I want to add a coder about the role of the Caribbean Court of Justice. You see, the shift from the Privy Council to the Caribbean Court of Justice in some states doesn't merely signify the end of colonial judicial control, but opens up new questions about judicial legitimacy and public trust when it comes to matters as polarizing as the death penalty, this shift can be seen as a quest for regional autonomy, albeit with varying degrees of public approval. For some Caribbean politicians. A key motive for replacing the Privy Council with the Caribbean court was a desire to break away from the Privy Council's restrictive jurisprudence on the death penalty. As Julian Knowles wrote in 2004, there is no doubt that the court is intended first and foremost to speed up the rate of executions. End of quote, he said, rather than unfairly, he said, he said rather unfairly with hindsight that quote, the Caribbean Court of Justice is therefore little more than a cynical political exercise, which has more to do with political expedience than we've improving the quality of justice in the Caribbean. End of quote, Noel's latter prediction has been proved wrong by subsequent events. As I highlighted in my lecture on the subject, the Caribbean court in Neve's and Regina overruled the Privy Council's decision in Bo and held at the mandatory death penalty in Barbados to be unconstitutional. The Neva judgment is an impressive one, which I described in my lecture as an elegant, eloquent PanIN to the constitutional principle. In contrast, the Privy Council has re has recently pushed back in the case of Chandler against the state of Trinidad and Tobago reaffirming boce and declining to follow Nase. We are therefore now in a position where the Caribbean Court of Justice is more progressive than the Privy Council as regards to death penalty. If the purpose of the Caribbean court was to speed up the rate of execution, it has done the very opposite. We can conclude that the legal position in the Commonwealth Caribbean region is now as follows. First, the death penalty in itself is constitutionally permitted. Second, however, the mandatory death penalty is unconstitutional except where it has been preserved by savings clause. Third, following Neva, a saving clause would not now immunize the death penalty from constitutional challenge in those jurisdictions which has, which have adopted the Caribbean Court of Justice as their highest court. Fourth, executed the person after a long delay is likely to be held as unconstitutional. Let's examine the case for the death penalty. The death penalty enjoys strong support among many people in the Commonwealth Caribbean. As we've seen, while the parameters of the death penalty have much been litigated, there is no doubt that the death penalty itself remains constitutional in principle. Yet when we examine the moral and political arguments for the death penalty and consider them against the available evidence, they don't stack up. Let's look at why the main practical argument offered often proffered for the death penalty is deterrence. After all the argument goes, some commonwealth Caribbean jurisdictions have a high murder rate and problems with gang violence isn't the death penalty necessary as a deterrent? The reality, however, is that the evidence of the death penalty's efficacy as a deterrent is unconvincing. In 1973, Dr. Isaac Elrich published an influential and highly controversial paper which argued using, uh, ec econometric methods that executions in the United States deter murders. However, El Rich's study has much been criticized. There have been numerous empirical studies over subsequent decades producing widely varying and indeed contradictory conclusions. In 2006, Dr. Jeffrey Fagan published a robust critique of various studies purportedly showing that executions had a deterrent effect. He identified numerous errors and omissions in the methodologies of these studies. He said, quote, the new deterrence literature fails to provide a stable foundation of scientific evidence on which to base law or policy. He went on to say, quote, the fragility of the new deterrence evidence a function of the fundamental empirical and theoretical errors in this body of work raises concerns greater than simple. Simply just doubt the conclusions in this body of work are wrong. There was no reliable evidence of deterrence. The only scientifically and ethically acceptable conclusion from the complete body of existence, social science literature on deterrence and the death penalty is that it is impossible to tell whether deterrent effects are strong or weak or whether they exist at all. Similarly, a comprehensive review of the evidence was carried out in 2012 by committee of National Research Council of the National, uh, uh, academies in in the United States. The committee reached a conclusion that quote, research to date on the effect of capital punishment on homicide is not informative about whether capital punishment decreases increases, or has no effect on homicide rates. Therefore, the committee recommends that these studies not be used to inform deliberations requiring judgments about the effect of the death penalty on homicide. So in other words, there are good reasons to think that the empirical evidence we supposedly have is fundamentally flawed and of no value in answering the question, we simply do not know to what extent death penalty deters murder. To be fair, scholars continue to disagree about this issue and there continues to be some studies that purport to show a deterrent effect. Now, we don't have time for detailed review of the literature, but given the real doubts about the rigor of the research in this area, the point is we simply don't know with any confidence whether the death penalty is a deterrent or not. There are good common sense reasons to think that it may not be. After all, people who commit murder are often not in a rational frame of mind. They may not be acting, sorry, forgive me. They may be acting impulsively. They may be drunk on drugs or experiencing a mental health crisis. They may not have the knowledge of the law or the consequences of their act. And although the correlation is not causation, we can see that jurisdictions which abolish the death penalty don't ty typically see murder rates spike. For example, a recent study by Stephen Oliphant showed that there was no increase in homicide rates after the death penalty. Moratoriums were imposed in the United States of Illinois, New Jersey, Washington, and Pennsylvania. This ambiguity in empirical evidence raises a crucial question. If we lack conclusive proof regarding the death penalty's efficacy as a deterrent, should we err on the side of caution and not implement a punishment that is irreversible? This principle, often referred to as the precautionary principle argues for avoidant actions that once done cannot be undone, especially when the empirical data support and such actions is inconclusive when applied to the death penalty, the precautionary principle suggests that it might be wiser to adopt an alternative sentence in options that can be restricted in the view in the event of new evidence of or wrongful convictions. With this in mind, given the pity of actual evidence of that the death penalty actually deters murder, can we really justify killing human beings on the basis of mere intuition that it ought to be a deterrent? My view is we cannot. Another argument for the death penalty is Just desserts. The idea that someone who commits murder deserves to be killed. This is not an empirical claim, but a moral and philosophical one. And so we can't test it against the evidence, but there are a number of obvious problems with it. The first is to state the obvious. Not everyone who commits or who c is convicted of a crime is actually guilty. The problem is, of course, not unique to the commonwealth Caribbean. Here in England, we've had numerous atrocious miscarriages of justice over the years. The recent case of Andrew Malson who served 17 years in prison after wrongly being convicted of rape, illustrates this so too do the cases of three women, Sally Clark, Donna Anthony, Angela Cannons wrongly convicted of murder in their children on the basis of flawed statistical evidence, the harm of being wrongly imprisoned for a crime one did not commit is of course, incalculable. As Mr. Wilkinson's mother told the B B C, what has been done to him cannot be undone, but the harm is greater still. When the person is executed for a crime they did not commit, in which case no power on earth can bring them back. Again, this isn't theoretical. Timothy Evans was executed in 1950, having wrongly been convicted of the murder of his wife and daughter who were actually killed by the serial killer John Christie. The risk of, uh, wrongful execution poses not just an individual, but also systemic crisis of credibility, uh, for the justice system. When a system meets out an irreversible ultimate punishment based on flawed or incomplete evidence, it not only fails the individual involved, but also undermines public trust. The risks are even greater in the Commonwealth Caribbean, where legal aid for those charged with crimes is grossly inadequate, and where the legal system is under resourced, as Margaret Burnham wrote in 2005 quote, the increased use of the death penalty in the Commonwealth Caribbean in the 1980s induced a criminal justice crisis for those jurisdictions did not have an adequate legal infrastructure to administer properly the increase in number of capital crimes. Prison conditions were harsh and not suited for the long term death row incarcerations. Lawyers and judges were ill prepared to handle the cases which were notoriously complex. Inadequate legal aid programs left defendants at the mercy of poorly trained junior lawyers were not paid to assist their clients during critical pretrial and post-trial proceedings and were not provided with adequate forensic investigative or medical expertise. There was no right to legal assistance at the post-trial phase. In consequence, the integrity of the of the system was undermined. As flawed convictions were overturned by appellate courts in Belize, more than half of those sentenced to death won their appeals. Some of these defendants were likely innocent. In a 2002 case from Jamaica, a privy council reversed a capital conviction for a Western Union office robbery and murder because the prosecution neglected to provide the defense with a, with a videotape of the crime in progress, which would've cleared the defendant. This particular instant highlights another ethical dilemma. The responsibility of the prosecution in capital cases in a system already fraught with inadequacies, we can be assured that the prosecution is always acting. Sorry. Can we be assured that the prosecution is always acting in the best interest of justice rather than securing a conviction? This further underscores the fragility of a system wherein life and death decisions can hinge on procedural oversights or withheld evidence. Of course, the possibility of innocence is an easy argument against the death penalty, but a truly principled stance on the opposition to death penalty must also confront cases where there is no doubt about guilt, and I will not shy away from doing so. While murder is an atrocious act, it is important to recognize that human beings do not make free choices in a vacuum. We are products of our environment. Many people commit murder have suffered severe trauma. Many are suffering from mental health issues. Many have lived their whole lives and die poverty. Many have been caught up against their wishes in gang violence. In most real life cases of murder, there are considerable mitigate and circumstances, and even people who have committed murder can change their character fundamentally over the course of a lifetime. You see, the consider consideration of mitigating circumstances brings us to a complex area of the ethical debate around retribution and justice. Do we have the moral authority to dismiss these factors and apply a one size fits all punishment like the death penalty? If we accept that mitigating factors like trauma, poverty, mental health can profoundly influence behavior, then we must also accept that our penal system should be designed not merely to punish, but also to understand and rehabilitate wherever possible. The eminent barrister and my former mentor, Lord Tony Gifford of King's counsel eloquently expressed his own reasons for opposing the death penalty. Quote. I am against it because I believe it to be wrong for the state to kill except necessary and in immediate self-defense defense, I'm against it because it encourages people to believe that violence and vengeance are proper responses to crime. I'm against it because I believe in the possibility of redemption of the human soul, and I have met many ex death row inmates who have confirmed that belief. I am against it because in any system of justice, especially in the under-resourced systems in our region, the innocent will be executed. He's right on all counts. Finally, let us look at another key argument for the death penalty in the Caribbean. The idea that the death penalty reflects the value the values of Caribbean people, and that the movement to abolish it constitutes a colonial imposition of European values. This argument is often made by Caribbean politicians, but it is disingenuous as we have seen the death penalty as practiced in the Caribbean, including the method by hanging is an artifact of British colonial rule. It is a deeply colonial institution addressing the notion that the death penalty reflects local values. The counterargument that it is a Colonial II imposition allows us to confront a multifaceted issue the way history, culture, and politics inter intertwine in its rhetoric around capital punishment. When considering the death penalty in the Commonwealth Caribbean or indeed anywhere, it's imperative to decouple the practice from its historical and colonial legacies and examine it through the lens of modern ethics, human rights, and empirical evidence. Lord Gifford mentions in his lecture that in South Africa during the dismantling of apartheid, the constitutional court held in one case the death penalty to be unconstitutional. This case deserves closer attention in a masterly concurrent judgment, Mr. Justice Albi Sachs highlighted that the death penalty was generally not used in traditional African societies that inhabited what is now South Africa accept in cases of witchcraft. He said, quote, the relatively well-developed judicial processes of indigenous societies did not in general encompass capital punishment for murder. He quotes the scholar who summed up the traditional attitude in a single sentence, why sacrifice a second life for one already lost. In contrast, he highlighted the Dutch colonialists who introduced a gruesome modes of execution design to produce maximum pain, greatest indignity over the longest period of time with torture being used until the end of the 18th century as an inable part of the judicial pope process. This case, of course, concern the culture and customs of South Africa rather than those in the Caribbean, but Mr. Justice sack's point still holds true. So as we draw this lecture to a close, let us revisit the fundamental reason why the notion that the state should be constitutionally entitled to kill people in the commonwealth. Caribbean should be firmly rejected. Firstly, the death penalty fails to serve as reliable deterrent against violent crimes. Secondly, it opens up a Pandora's box of judicial errors that can never be corrected. Thirdly, it challenges the very tenants of human rights that form the gro backbone of any progressive society. Fourthly, it is di it disproportionately punishes the most vulnerable amongst us. And lastly, it serves as a grim reminder of a colonial past that was based on subjugation and the de dehumanization of people. The ultimate weakness of violence is that it is a descending spiral begetting the very thing it seeks to destroy. Instead of diminishing evil, it multiplies it. Martin Luther King Jr. The death penalty as we know it today is a colonial imposition. Surely it's time to end it. Thank you. Thank you very much. Uh, professor Thomas. So we are now have time to take a couple of questions. Um, first one is, is perhaps more of a comment and you described it very well. The, the abolitionist argument is often dismissed as a, as a form of neocolonialism. Um, do we actually have an idea of the percentage of, um, Caribbean living in the countries you've described who are in favor of death penalty? We don't, and here's the interesting thing. Um, being a person of um, um, Caribbean descent, often you will hear politicians in the region arguing that what they consider to be a populous cause, but there's no, um, referendum done on it. And indeed, uh, the the, the irony is, um, nobody knows what Caribbean people, um, think, uh, in terms of numbers. So it's often used as a populist way to push forward an agenda, um, because it's easy, um, to to to ring a law and order bell saying kill them. Let's, let's execute, um, criminals. It's an easy ticket to ride. Alright, we'll take now some questions from the audience.. Yeah, I don't need that. Um, well, thank you. I'm sure it's, uh, giving you a real headache. Um, you concentrated on the Caribbean, British law colonization was much wider than that. Yeah. Um, I've worked in perhaps 45 countries over 40 years. I can think of 10, top of the head, still have a couple of punishment by God's law. You don't have all this DSS and politics when you apply God's law, so let's apply God's law. But the other thing you mentioned a referendum, and I think I can guarantee that, uh, if you had a referendum here or where I in Canada then public, that an occupied with PC and MO would support the death penalty for the most evil and premeditated of crimes. Your whole presentation is in sympathy with those that commit murder and the most atrocious crimes. But the public, in my experience, uh, would support the death penalty for certain, um, very violent and premeditate acts. Can I come back on that? Having spent 40 years working in criminal defense system, I can assure you that, uh, the unreliability of our judicial system is such that, that I don't think anybody should ever fault death penalty no matter what we're trying. And therein, therein lies difficulty, um, in terms of trying to say or or trying to speak for a nation is very difficult because, you know, I I hear your view, I respect what you say, but your view is not universally held. You've not had a referendum. So another, another Question. Yeah, there's this one here. A of that is to say, um, what, what do we egregious offenders, what do we do? I a cliche, but what do we do with the, the Bradys of this world that the sadistic serial killers who can't be ever released, they'll never be safe to be released. They in a sense, um, that they, they've, it's aggrandizing for them to, to have public attention, to, to be alive and, and to, in a sense communicate from, from their jail cell or wherever they are, and in some cases, even to perpetrate the kind of a sadism on their victim's families. What? Well, I you, you say, what do we do? Um, we do what we are doing at the moment, uh, many, many of the most dangerous, um, perpetrators of, you know, really heinous crimes. Uh, life means life. They, that we have what's known as a whole life sentence, and that's what that, that is the punishment. So, uh, you know, I suppose what what I'm saying is we in this country have decided that the death penalty is abhorrent. That's why we don't kill people. Uh, the, the the, this lecture was about given our stance in, in England and wells, and given the fact that the, the death penalty was an import to many Caribbean countries, how do we justify the, you know, how do we justify the difference? I, I, I think there's, um, a, a hypocrisy trying to maintain, particularly amongst the, the Privy Council with the, the debate, with the saving clauses upholding it in some of the, um, um, Caribbean jurisdictions. I I have a real problem with that. I have a real problem with that as is clear from the indication I gave in the lecture on, on a number of levels. Um, I think, um, for similar reasons that Lord Gifford gives killing people is wrong. That, that, that's my belief. I think there's there's one at the very back. Yeah. One, One person at the back, one last question, please. I'm Trin and you know, directly this affects, you know, it was a crime and you know, perpetrator got the mandatory death sentence. Um, I disagree with the death sentence. Um, and I think there I would be probably unusual in the Caribbean. I think it's a bit disingenuous to say that no referendum has taken place. It actually takes place in every election, and every politician knows that. I mean, intrinsically knows the death penalty. One of the things that I would argue on behalf of my fellow Trinidadians is crime is such a terrifying thing. It rules everybody's life. They are scared. They lock the door as they go through it. They live, you know, in cages. Um, and it rules their life. And the perception I, and I know you a lot got a lot of what I I'm saying, but the perception is that, um, it is a colonial impost with the Privy Council, um, appeals because it's effectively a non death sentence. So I just feel that it is for Trinidadians knowing it's there, it is a medicine to keep them safe, otherwise they would be f feel like they've been left to the wolves. So you must understand that. But, but not from, from the bri the sort of British perspective, which is a crime. You know, these are poor criminals and we have to give them a second time. No, I don't agree with the death penalty, but I, I sympathize and empathize with my fellow Trinidadians. Your your your position though is, is, I, I'm trying to understand it. You say you don't agree with, because I don't think this is something that you can sit on the fence on either. You, you either you agree with the death penalty, you can be Conflicted in life. Yeah. That's, that's what being human is. Yeah. You have conflicting and you have to understand the Sign. Uh, I've been to tr I've been to Trin. Yeah. I'm sure you Know what the Reaction I do, probably not much goes. Yeah. I, I I know I I've been to Trinidad many times and I, and I agree with you, um, for those of us who live in the UK to live in a society where, you know, people have burglar bars on their doors and windows and they, and, and, and there's, but here's the thing, my friend, even though the death penalty is still there, it hasn't made a difference to, to the crime rates I Agree with. And part of your talk where you say that It doesn't, I'm sorry. Thank you very much. But, uh, we are <laugh>. I agree with that. Thank you very much. Thank you very much. Uh, Thank you you For this.