Dr Bharat Malkani is a Senior Lecturer at Cardiff University, where he convenes a module on Miscarriages of Justice. His research focuses on the intersection between human rights and criminal justice, with a particular focus on capital punishment, racism, and wrongful convictions. He is the author of Slavery and the Death Penalty: A Study in Abolition (Routledge 2018).

We were joined for the latest All Souls lecture by Dr Bharat Malkani, who discussed his current research on the role that the United Kingdom (UK) has played shaping the worldwide death penalty, both historically and presently. Fundamentally, his research examines why, on the one hand, the UK government’s official position is that it opposes the death penalty in all circumstances and actively promotes abolition abroad, and yet, law, policy and practice do not always reflect this statement. To reconcile this, he questions: ‘to what extent can this mismatch between rhetoric and practice be explained with reference to legacies of colonialism?’

The UK Government Opposes the Death Penalty in All Circumstances

As Dr Malkani highlighted, the UK government has a long-standing policy of opposing the death penalty in all circumstances. We see this in countless policy statements, as well as in practice. By way of example, as far back as 1998 the Foreign and Commonwealth Office formed a “Death Penalty Panel”, featuring the late Roger Hood, who advised on a strategy to promote worldwide abolition. There are legal measures too, which ensure that the UK government does not authorise the extradition of an individual who is likely to face the death penalty, unless there is some assurance made by the foreign government that they will not pursue a capital sentence. The Privy Council in London remains the highest court of appeal for some commonwealth nations, giving it scope to restrict the use of the death penalty abroad. One such example of this is the case of Pratt & Morgan v AG of Jamaica, where the Privy Council ruled in November 1993 that holding a prisoner on death row for more than five years constitutes cruel and inhumane punishment (and thus violates the Jamaican Constitution). This ruling came about due to the work of the Non-Governmental Organisation (NGO), the Death Penalty Project – who receive funding from the UK government as part of its anti-death penalty commitment – and with whom the Death Penalty Research Unit (DPRU) work closely.

Times When the UK Government Has Fallen Short of its Commitments to Abolition

There are, however, notable examples of times when the UK government has fallen short of its anti-death penalty commitment. As we heard from Dr Malkani, in 2010 it came to light that a UK manufacturer had been supplying the chemicals needed for lethal injections to the US. Another example provided was the case of Zaw Lin and Wai Phyo, two Burmese migrant workers who were sentenced to death in Thailand for the 2014 murder of two British tourists, and whose arrest and conviction was largely due to evidence provided by the UK National Crime Agency (who later acknowledged they had acted unlawfully in assisting this capital case). Their sentences have since been commuted to life imprisonment. Another case from this region, that of the British woman Lindsay Sandiford who is on death row in Indonesia for alleged drug trafficking, also highlights the limits of the UK government’s commitment to abolition. Sandiford lost her case against the UK government who she took to court over their refusal to pay for her legal appeal in Indonesia. The government’s argument was that they provide funding to UK-based charities to support British capital defendants, but they do not provide direct funding for individual cases.

Gallows Blue Sky Wooden Frame

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How Can We Explain this Divide Between Rhetoric and Practice?

To resolve this gap between policy and practice, Dr Malkani provided a number of possible explanations. It could just be a case of ‘realpolitik’. So, for example, when it came to the case of the two British men, El Shafee Elsheikh and Alexanda Kotey, who were facing extradition to the US due to their alleged role in the ISIS terrorist group, the UK government’s failure to seek an assurance that the death sentence would not be pursued could have been due to a need to appease the Trump administration. Another explanation could be that due to the size of the government bureaucracy, there is room for individual errors; scope for the anti-death penalty message to be lost; and for the individual views of politicians to influence policy. Indeed, he mentioned concerns over the Home Secretary, Priti Patel, stating her support for the death penalty. 

Postcolonialism and the Legacy of Empire

Dr Malkani posited an overarching explanation for these trends: by examining the ‘institutions, social structures, mindsets and ideologies of [the] former imperial power’, we can hypothesise that ‘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’. He explored these connections and disconnections with reference to postcolonial thinkers such as Achille Mbembe and Giorgio Agamben, as well as death penalty historians like David Anderson and Stacey Hynd. In so doing, he made particular reference to the concept of ‘sovereign power’ being linked to necropolitics and the ability to define who is and is not disposable. Which, arguably, continues today with the UK government’s variable approach to implementation of its anti-death penalty stance. Furthermore, he noted that this idea of a ‘state of exception’ is key to past and present death penalty policies: during colonial times, British imperial rulers would justify their use of the death penalty in places such as Kenya, with reference to a ‘state of emergency’ and the need to restore order (when in fact, all colonial rules were based on emergency laws and so there was a permanent state of exception). And in current times, we see exceptions being made to the prohibition of facilitation of the death penalty. As Dr Malkani pointed out, in Lord Kerr’s dissenting opinion on Elgizouli v SSHD [2020], Lord Kerr wrote that an allowance may be made to this rule ‘if the relay of information or intelligence was absolutely necessary as a matter of urgency in order to save lives or protect the security of the nation’. Clearly, there is a need for Dr Malkani’s insightful analysis as the UK government, and society as a whole, grapple with the past and present ramifications of our colonial history.

 

Blog post by Lucy Harry, doctoral candidate at the Centre for Criminology and member of the DPRU, whose research focuses on the experiences of women sentenced to death for drug trafficking in Malaysia.