The UK And The Death Penalty Worldwide

The UK And The Death Penalty Worldwide Presented by: Mr. Malkani Date: 23 November 2020 Outline - The orthodox view is that the UK opposes the death penalty in all circumstances, and promotes abolition abroad - However, law, policy, and practice do not always reflect this position - To what extent can this mismatch between rhetoric and practice be explained with reference to legacies of colonialism? Orthodox View - The UK opposes the death penalty in all circumstances, and promotes abolition abroad • UK Statement on the Use of the Death Penalty, 26 Feb 2019, (at the Human Rights Council, Geneva)  "The UK's long-standing policy is to oppose the death penalty in all circumstances as a matter of principle...  The UK presses for the reduced use of the death penalty overseas, through multilateral institutions and through targeted bilateral interventions...  We encourage incremental reform and progress towards global abolition of the death penalty..." Policy Initiatives - 1998: • - Foreign and Commonwealth Office "Death Penalty Panel" 2010-2015: • - 2011: • - HMG Strategy for Abolition of the Death Penalty Overseas Security and Justice Assistance (Human Rights guidance) Post-2015: • Human rights and democracy programme Legal Measures - Extradition • - Extradition Act 2003, s.94 Mutual legal assistance • Crime (Overseas Production Orders) 2019 (s.16(3)) • Data Protection Act 2019 (Part 3) • UK/USA Agreement on Access to Electronic Data for the Purpose of Countering Serious Crime [CS USA No.6/2019] Other - Support to non-governmental organizations such as the Death Penalty Project, Reprieve, Amicus, etc. (and the actual work of those organizations) - All Party Parliamentary Group on the Death Penalty - Work of UK-based academics - Privy Council But... - Supply of chemicals needed for lethal injections (USA, 2010) - Provision of support for anti-drug trafficking initiatives which lead to executions (Iran, Pakistan, 2016) - DFID funding to Access to Security and Justice, and Justice Recovery Programs, leading to imposition of death sentences (Sierra Leone, 2016) - Failure to seek and obtain "no death penalty" assurances before providing assistance in criminal justice matters • Antigua - • Thailand (Zaw Lin and Wai Phyo) • USA (Kotey and El Sheikh) • Kenya (Ali Babutu Kololo) R (Zagorski and Baze) v Secretary of State for Business, Innovation, and Skills [2010] EWHC 3110 (Admin) - R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44 - R (El Gizouli) v Secretary of State for the Home Department [2019] EWHC 60 (Admin) Explaining And Understand The Divide Between Rhetoric And Practice - Realpolitik (USA) - Individual errors (Thailand, Antigua) - Creaky machinery of government (Sierra Leone) - Personal beliefs of those in government - Postcolonialism and the legacy of Empire: to what extent is the UK's contemporary relationship with the death penalty worldwide shaped by the role of the death penalty in the age of Empire? - Institutions, social structures, mindsets and ideologies of former imperial power are shaped by the history of empire • - "Britain [itself is] constituted by empire" (Darwin 2015, p.32): Therefore, the UK's political and legal approach to the death penalty worldwide today might also be shaped by the history of the death penalty in the colonies The Role Of The Death Penalty In Empire - Historians / criminologists: • David Anderson, Histories of the Hanged (2006) • Stacey Hynd, 'Killing the condemned: the practice and process of capital punishment in British Africa, 1900-1950s' (2008) 49 Journal of African History 403-418 • Clare Anderson, 'Execution and its Aftermath in the Nineteenth Century British Empire' in Ward (ed) A Global History of Execution and the Criminal Corpse (2015)  Capital punishment differed from one place to another, depending on local contexts  Judicial killing was "mutually constituted" - i.e., death penalty in the colonies shaped the death penalty in the metropole, and vice versa  Death penalty in the colonies was generally focused on control of indigenous people, rather than retribution - Literature • Franz Kafka, The Penal Colony • George Orwell, A Hanging  Tension / contradiction between colonial rule as a "civilizing mission" on the one hand, and the barbarity of the death penalty on the other - Postcolonial theorists: • Achille Mbembe, Necropolitics (2003)  Technologies of death utilized by imperial powers (necro-politics)  Sovereignty refers to the "capacity to define who matters and who does not, who is disposable and who is not".  "Colony represents the site where sovereignty consists fundamentally in the exercise of a power outside the law" • Giorgio Agamben, State of Exception (2002)  In the colonial era, the "state of exception was not really an exception because it created the conditions that made rule possible" (Kohn p.96) Elgizouli v SSHD [2020] UKSC 10 - Question: Whether it is unlawful for the Secretary of State to exercise his power to provide MLA so as to provide evidence to a foreign state that will facilitate the imposition of the death penalty in that state on the individual in respect of whom the evidence is sought - Held: Contrary to Part 3 of the Data Protection Act 2018, but no general common law rule prohibiting facilitation of the death penalty - Lord Kerr, dissenting: • "it is unlawful at common law for the state to facilitate the execution of the death penalty against its citizens or others within its jurisdiction anywhere in the world." [143] • "The only circumstances in which I conceive that the common law principle should not apply are these: if the relay of information or intelligence was absolutely necessary as a matter of urgency in order to save lives or to protect the security of the nation," [164] - Lord Carnwath: • "It is not difficult to envisage circumstances where urgent exchange of information with the US security forces might be required relating to an immediate threat to public security, which should not be inhibited by concerns that it might ultimately lead to a risk of the death penalty" [205] - Lord Reed: • "The Government's policy in this area [is] more nuanced..." [180] (Post) Colonialism - Death penalty differs from place to place - Contradiction between "civilizing mission" of Empire, with brutality of death penalty - State of emergency governed colonial rule (Agamben) - Death penalty practices in metropole and colonies were "mutually constituted" (C. Anderson) - "colonial practices were inflected by the politics of imperial power" (C. Anderson) - Power to define who is disposable and who is not (Mbembe) UK And Contemporary Death Penalty - Opposition to death penalty is variable - Contradiction between "absolute opposition" and variable approach to facilitation - "Exceptions" govern approach to facilitation and death penalty - Approach to abolition abroad is "mutually constituted" - Abolitionism is inflected by politics of imperialism (neo-colonialism; international trade etc.) - Exceptions to non-facilitation gives power to define who is disposable and who is not