Such a statement is truly remarkable when one recalls that the common law once mandated that any person who stole anything worth over a shilling should be hanged. It would mean that, today, the common law shuns capital punishment for even the most heinous of crimes, such as those allegedly committed by El Shafee El Sheikh and Alexanda Kotey – the two members of the ‘Beatles’ ISIS cell accused of beheading hostages in Iraq and Syria at the centre of the El Gizouli challenge. For English common law to now regard as inhuman the once accepted penalty for all felonies would be a striking testament to the common law’s ability to absorb external juridical developments and adapt to contemporary societal values.
Hence, if the remaining judges of the Supreme Court agreed with Lord Kerr that the common law has now come to regard the death penalty as a cruel and unusual punishment, then this is a milestone deserving of some recognition.
Photo credit: Yogendra Joshi via Flickr (Licensed under Creative Commons CC BY 2.0)
Maha El Gizouli, El Sheikh’s mother, brought judicial review proceedings against the Home Secretary because of his decision to supply information gathered by UK investigating authorities to prosecutors in the US where El Sheikh and Kotey were to stand trial. Although it was the UK’s long-standing practice to seek assurances that the death penalty would not be imposed in the event of a conviction for a death eligible offence, legal assistance was provided to the US in El Sheikh’s and Kotey’s cases without any such assurances.
Ultimately, the Supreme Court ruled that the Home Secretary’s decision was unlawful because insufficient attention had been paid to the requirements of the Data Protection Act 2018. But El Gizouli had also argued that the common law prohibited the government from providing legal assistance if it meant the UK would be facilitating the infliction of a cruel and unusual punishment on an individual by another state power.
The ‘non-facilitation’ argument was rejected by the majority of the Supreme Court. However, a necessary step in that argument was that the common law had now come to regard the death penalty as a cruel and unusual punishment. The fundamental premiss is our English Bill of Rights 1688, which governs development of the common law and declares that “excessive Baile ought not to be required nor excessive Fines imposed nor cruel and unusual Punishments inflicted.” As Lord Kerr observed, what is conceived to be cruel and unusual punishment “adjusts, like so many other societal perceptions, to changes in the standards and values of society which develop over time with the growth of knowledge and the evolution of attitudinal changes” (para 102). How that preliminary argument was regarded by the majority of the Supreme Court is less clear.
The decision of the lower court
The Divisional Court outright rejected the argument that the common law had now come to a position where the death penalty was prohibited. It found that development of the common law with regard to capital punishment had been abruptly truncated with the Murder (Abolition of the Death Penalty) Act 1965, so that “there was no room for the common law to develop domestically to achieve a similar end” (paras 93-95). As far as it was concerned, what constituted ‘cruel and unusual’ could only be determined by reference to the European Convention on Human Rights via the Human Rights Act 1998.
Yet, while no one would dispute that the common law is trumped when an issue has been comprehensively dealt with by statute, that does not mean the common law cannot develop harmoniously alongside legislation – as the Supreme Court would later confirm. Lord Bingham once observed that the common law and the European Convention “walk side by side” when protecting rights. Furthermore, Lord Toulson previously reminded us “the development of the common law did not come to an end on the passing of the Human Rights Act 1998.” In fact, not only does the Human Rights Act itself expressly preserve the existence and development of common law rights, but many European Convention rights are fulfilled only by a concurrent development of the common law. This relationship is something that Lord Reed, one of the Supreme Court judges in this case, had previously recognised.
In any event, the 1965 abolition Act did not put an end to the death penalty as the Divisional Court claimed. It only abolished capital punishment for murder. The Act said nothing about treason, for which the common law punishment had always been death. While no execution has been carried out in this country since 1964, capital punishment was not comprehensively abolished by statute until 1998.
The Divisional Court also claimed that the common law had failed to define what constitutes ‘cruel and unusual punishment’. But, of course, what amounts to cruel and unusual punishment has no singular definition. It is not trapped in 1965 and is ever evolving. What today constitutes cruel and unusual punishment under our Bill of Rights falls to be decided against the background of domestic and international developments, such as:
- In 1999, the UK cemented its abolition of the death penalty when it ratified the Second Optional Protocol to the United Nations’ International Covenant on Civil and Political Rights (ICCPR). The ICCPR, as interpreted by the Humans Right Committee, has come to regard the death penalty as cruel and inhuman punishment and, while granting time to retentionist member states to effect abolition, it prohibits any reintroduction of the death penalty in an abolitionist member state such as the UK.
- In 2004, the UK became a signatory to the Thirteenth Protocol to the European Convention, under which abolition of the death penalty in all circumstances is “essential for the protection of this right [to life] and for the full recognition of the inherent dignity of all human beings.” One may even argue that, since 41 out of 44 countries territorially in Europe have ratified the Thirteenth Protocol and only one country actively executes (Belarus), there is a customary regional norm in Europe that the death penalty is inhuman or degrading treatment. (A norm that may protect us in the UK from the re-introduction of the death penalty should the UK’s membership of the Council of Europe and its long-standing opposition to the death penalty ever come under threat.)
These international obligations have a profound influence on our common law. As Lord Mance has previously stated, the rights under the European Convention “may be expected, at least generally even if not always, to reflect and to find their homologue in the common or domestic statute law.” Even if there isn’t always complete equivalence between English common law and the rights accorded to us under the various human rights treaties, it has been repeatedly recognised that there is a presumption in favour of interpreting the common law in a way which does not place the UK in breach of its international obligations. Sometimes that necessarily accelerates the common law’s development.
The Supreme Court’s decision
Whilst accepting the ability of the common law to develop in tandem with European Convention and Human Rights Act, the majority of the Supreme Court did not expressly contradict the Divisional Court in its analysis as to whether the death penalty was a cruel and unusual punishment under English common law. The majority of the Supreme Court saw the issue before it in terms of the government’s duty to protect life under public law, rather than its obligation not to inflict cruel and unusual punishment under common law. In that sense, a finding was not necessary. Yet, it seems to me, it must have implicitly accepted that the death penalty is now regarded as cruel and unusual under common law, even if that development has been propelled by legislation, international obligations, policy or otherwise.
Lord Carnwath, who delivered the majority judgment, found that “[t]he recent statements in this court support the development of the common law in line with the European Convention but not beyond”. The common law, he said, “had had nothing to do with the death penalty” for some time and was unlikely to have reached ‘Soering principle’ “unaided by Strasbourg” (para 197-18). The Soering principle prevents extradition of an individual outside of Council of Europe states to face an inhuman or degrading punishment. The principle, as developed by subsequent jurisprudence of the European Court of Human Rights (ECtHR), regards the death penalty as one such inhuman and degrading punishment. But Lord Carnwath’s statement, of course, implicitly accepts that the principle has become part of our common law, even if there is controversy over the absolute nature of the principle as he went on to highlight.
The significance of the common law position
So, why does it matter whether the death penalty is cruel and unusual under English common law, when we are so amply protected elsewhere? Aside from illustrating the dynamism of the common law, one reason is the potential effect on other jurisdictions with common legal heritage, most notably those in the Caribbean and Africa, where there remains considerable reliance on English judgments. Naturally, these jurisdictions develop their own common law, which is interpreted in the context of their domestic constitutions and legislation, but English common law (especially from the Privy Council) is woven throughout their jurisprudence and its influence is ever pervasive.
Another reason is that in these unpredictable times, one cannot be too complacent. After all, it was formerly unthinkable that the government would turn its back on its long-standing policy of seeking assurances that the death penalty will not be imposed before providing legal assistance to a foreign state.
In addition, in December 2020, the government announced that the Human Rights Act is under review. Whilst the government has said that the review does not encompass the scope of the substantive rights contained in the European Convention, what is under consideration is the potential for the government to ignore implementing those rights when articulated by the judgments of the ECtHR. In those circumstances, the growth of domestic rights is only to be encouraged.
Therefore, if the common law has at last come to regard the death penalty – which was imposed in this country from at least the twelfth century – as a cruel and unusual punishment, it is cause for celebration. For with the rise of anti-European sentiment and political disagreement over the ECtHR’s decisions, it is not in our interests to archive our common law protections just yet.
Amanda Clift-Matthews is a barrister and former in-house counsel at The Death Penalty Project.
  UKSC 10.
 R (Amin) v Secretary of State for the Home Department  UKHL 5, para 30.
 R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court  EWCA Civ 420, para 88.
 Osborn v Parole Board  UKSC 61, para 57.
 Ng v Canada (1994) Communication No. 469/1991, UN Doc CCPR/C/49/D/469/1991, para 16.2; Judge v Canada (2003) Communication No. 829/1998, UN Doc CCPR/C/78/D/829/1998, para 10.4 and Appendix 2, Opinion A.
 Kennedy v The Charity Commission (Secretary of State for Justice intervening)  UKSC 20, para 46.
 Soering v United Kingdom App no 14038/88 (ECtHR, 7 July 1989).