- Bring back the noose - Opinion
- Times, The (London, England) - Friday, July 31, 1998
- Author: Michael Gove
- Michael Gove prefers hanging to hounding
- Derek Bentley's vindication after 45 years will incline us all to review our attitudes to crime and punishment. As a liberal on criminal justice it confirms my views: we were wrong to abolish hanging .
- At the time abolition was considered a great liberal victory. It ranked with the legalisation of abortion and the decriminalisation of homosexuality as a bright shining moment in the progressive Sixties. Taking abortion out of the backstreets and homosexuality out of the shadows were certainly contributions to a more tolerant society. Abolishing hanging was not. It has led to a corruption of our criminal justice system, the erosion of all our freedoms and has made the punishment of the innocent more likely.
- Hanging was abolished in the teeth of public opposition. Since its abolition opinion polls have recorded steady majorities in favour of its return. To appease a public with whom politicians broke faith successive measures have been enacted that breach the principles of common law on which enduring liberties depend. Like a husband who has been caught in an adulterous affair, and who tries to repair his marriage with ever more extravagant gifts, the relationship between politicians and people has become demeaned.
- When Parliament legislated to abolish the death sentence, politicians cobbled together a new covenant to replace the old. The Home Secretary was empowered to usurp the judgment of the courts and fix sentences for murderers. The protective wall between the making of laws and the administration of justice was breached. Politicians who felt able to defy public pressure in abolishing hanging became its prisoners when determining sentences. Myra Hindley and the killers of James Bulger have their incarceration fixed not by weighing the arguments of the criminal bar, but the shouts from the bar of public opinion. They are, in a literal sense, political prisoners.
- Since abolition there have been further abuses. The last Government abolished the right of the defendant to have no inference drawn from his silence. The principle that a man was innocent until proven guilty was eroded by the most odious of the lynch-mob's cries, "what have you got to hide?"
- The principle was outlined eloquently in The Observer in 1956, by the liberal Arthur Koestler. He argued that: "Continental law was inquisitorial, English law accusatory; it admitted of no pressure being exercised on the accused. Hence the superiority of English judicial procedure in giving the accused a fair trial." Koestler believed these benefits were too "heavily paid for" by the acceptance of capital punishment. I fear we have paid too heavily for its abolition.
- A fair trial is increasingly less likely in English courts today. Michael Howard's Criminal Procedure and Investigations Act shifted the balance of justice even further against the defendant. It requires the defence to show its hand fully before the trial, letting the prosecution enhance its case before it is tested in open court. The 1996 Act also allows the prosecution to decide what material it will disclose to the defence. Giving the prosecution such discretion could lead to the suppression of papers that might help the defendant. The risk of miscarriages has increased, is increasing and all because faith in politicians was diminished 30 years ago.
- With a House of Commons less likely than ever to appreciate these arguments, there is almost no chance of turning back from this path. But impeccable liberals, such as Jonathan Freedland, have accepted that there is a case for capital punishment, on democratic grounds. His wonderful polemical tribute to the United States, Bring Home the Revolution, acknowledges that citizens' wishes on such a profound matter should be respected. States like New York have recently voted to restore the death penalty.
- My support for hanging does not, however, depend simply on respect for democracy. Reverence for life, liberty and the law springs from the State taking its responsibilities seriously. The finality of the punishment should focus not only criminal minds, but those of lawmakers and enforcers, who must ensure that the system is applied with scrupulous fairness.
- Hanging may seem barbarous, but the greater barbarity lies in the slow abandonment of our common law traditions. Were I ever alone in the dock I would not want to be arraigned before our flawed tribunals, knowing my freedom could be forfeit as a result of political pressures. I would prefer a fair trial, under the shadow of the noose.
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