Monday, 1 August 2011

What a difference a year makes

It's the mid 1960s, and change is in the air. London is swinging, hemlines are up and Harold Wilson has had the Beatles round to Number Ten. Three great liberalising measures are in contemplation: the decriminalisation of homosexuality, the legalisation of abortion and the abolition of capital punishment. The latter, long cherished by penal reformers and now attracting support from MPs of all parties after a series of controversial hangings (for example, that of Derek Bentley), is the first up for debate. The date is set for 1966.

But then something happens, something truly dreadful. Five children have been murdered near Manchester. After a trial in which the horrifying, sadistic details of the crimes are repeated day after day in the press Ian Brady and Myra Hindley are convicted. A shocked nation demands that the Moors murderers pay the ultimate price - and suddenly few Members of Parliament are in a mood to disagree. The vote is delayed for a year. The legalisation of abortion and same-sex relationships gluts the public mood for reform. After a couple of years, a compromise is reached: hanging will no longer be the default sentence for murder, but it will be available, in exceptional circumstances, for the "most heinous" crimes.

The strongest opponents of capital punishment are not satisfied. But most moderates find that they can live with it, especially as over the next few years capital punishment seems to have become vanishingly rare. After Brady and Hindley swing, the next to face the noose is Peter Sutcliffe. Few tears are shed for the Yorkshire Ripper. Times change. In the polarised, economically fraught Seventies most people have other priorities. And then come the Eighties. Margaret Thatcher, a firm supporter of capital punishment, is in Downing Street, and liberalism in all spheres except the economic is out of fashion.

True, a succession of wet home secretaries - Willie Whitelaw, Douglas Hurd - manage to restrain the most enthusiastic hangers and floggers on the backbenches, and even effect an occasional commutation. But with time, analysts notice, judges seem more willing to define a crime as "heinous". A combination of legal precedent and (though this is hard to measure precisely) public mood leads to certain categories of murder being considered heinous all but by default: murders of children, of police officers, serial killings, sex killings, shooting sprees. The number of death sentences edges gradually upwards.

A few years later, after Ken Clarke's unofficial moratorium on the death penalty attracts negative coverage in the Daily Mail a new home secretary, Michael Howard, decides to get tough. "Hanging works" he declares, to cheers, at the Conservative conference. "When murderers are six feet under they aren't out there committing more murders."

Meanwhile, Tony Blair is determined to shed the Labour Party's image as soft on crime. As a young lawyer he had been opposed to capital punishment - perhaps, like his wife, he still secretly is. But like his political mentor and idol Bill Clinton he realises the political dangers of appearing soft on crime. Downing Street, he reasons, is well worth the odd hanging. A new generation of Labour MPs shares his moderate approach. They stand and applaud when he stresses that the People's Party is no friend to murderers - indeed, that he will explore ways of removing what he calls "loopholes" that allow killers to remain indefinitely alive. There will be a new, streamlined, "firm but fair" appeals process, he declares. The Sun is impressed. The paper features Blair's support for capital punishment prominently in the run-up to the 1997 general election.

In 2000, even as it passes the Human Rights Act, Labour reaffirms Britain's opt-out from Protocol 6 (and later Protocol 13) of the European Convention of Human Rights, the first of which restricted the death penalty to wartime emergencies, while the second abolishes it entirely. "The most fundamental human right is the right to life" says Jack Straw, who as home secretary has followed in Howard's footsteps. "But some people have clearly forefeited theirs." In the wake of 9/11, the definition of "heinous" is extended to include acts of terrorism.

So here we are again, in 2011, debating yet another doomed attempt to abolish capital punishment in Britain, this time put forward by some publicity-seeking blogger. It'll never happen. The Sixties are over. Public opinion is too firmly in favour of the death penalty. The focus groups, and the Daily Mail, would never allow it. Abolitionism plays badly in the marginals. Politicians know this - even those (allegedly the majority) who privately believe that hanging has become a national embarrassment.

Besides, our opt-out from Protocol 13, like our opt-out from the Euro, has become a touchstone of national pride. Any prime minister who flirted with removing it would be accused of caving into Brussels, of being undemocratic and elitist, of being un-British. Yes, we might be alone in the Western world, apart from the United States (where liberal courts came close to abolishing the death penalty themselves in the early Seventies) in continuing to execute murderers. But that just shows that the transatlantic special relationship is still in good working order. Just like Pentonville's gallows.