Friday, 9 August 2013

Recent English Court Decisions on State Responsibility and the Application of the Death Penalty: Sovereignty verses Human Rights

Two examples of litigation in 2013 in the British High Court and Court of Appeal are considered, The Queen on the Application of Lindsay Sandiford v. The Secretary of State for Foreign and Commonwealth Affairs [2013] EWCA Civ 581 (Delivered 22 May 2013), and The Queen on the Application of Omar and Others v. The Secretary of State for Foreign and Commonwealth Affairs [2013] EWCA Civ 118. (Delivered, 27 February, 2013) (Decision of the High Court, [2012] EWHC 1737 (Admin).

Both cases demonstrate that even when the British government has adopted domestic and regional legislation for the abolition of the death penalty within its territory, the British judiciary can apply a confined approach to domestic statute and governmental policy with the result being that the government legitimately acquiesces in the punishment in foreign domestic jurisdictions. The result is an inadvertent contribution to the preservation of the capital judicial process in third countries, in cases where British nationals face a death sentence, and where British intelligence services are involved in apprehending persons for capital charges.

The British government is a staunch advocate of abolition at both the bilateral level with many retentionist countries, and at the multilateral level in the European Union and the United Nations. It would be a reasonable assumption that an abolitionist country which vigorously promotes abolition globally would identify juridical procedures which align with governmental human rights policies, and attempt to contribute to the neutralising of capital judicial systems elsewhere.

However, these two recent examples of litigation in the British High Court and Court of Appeal demonstrate that in adopting certain governmental policies and a “statutory regime” within public law, the judiciary have found exceptions to a, “principled position against the death penalty.” Manifestations of state sovereignty have been privileged over principles of human rights, with a curtailment of the abolitionist frameworks provided by the EU and ECHR. Such a statutory regime is reminiscent of European sovereignty pre-abolitionist era, and requires rectification at the legislative level.  

See the below two posts for the British cases. The first part of each post is a summary of the decision which is followed by a commentary on the judicial reasoning.