The strange case of the death penalty

We abolished capital punishment for almost all crimes in 1969, and there is no prospect of it returning; yet it remains a touchstone for some conservatives

The United Kingdom executed its last two condemned prisoners at 8.00 am on 13 August 1964. Peter Anthony Allen (21) was hanged at Walton Prison in Liverpool, while Gwynne Owen Evans (24) went to the gallows at Strangeways Prison in Manchester. They had been convicted of the murder of John West earlier that year, and were hanged at the same time, so no-one could claim to have witnessed the country’s last judicial murder. The hangman at Strangeways was Harry Allen, while his counterpart at Walton was Robert Stewart. Allen was a veteran, this his 41st hanging as chief executioner, while Stewart was only achieving his half-dozen. The home secretary, Henry Brooke, had announced three days earlier that he had “failed to discover any sufficient ground to justify him in advising Her Majesty to interfere with the due course of law”.

Although these were the last executions to be carried out, the death penalty would take several decades to fade and finally disappear from the statute book. Shortly after Evans and Allen were executed, Sydney Silverman (Lab, Nelson and Colne) introduced a private member’s bill into the House of Commons to abolish capital punishment for murder in Great Britain (but not Northern Ireland, which then still had its own bicameral parliament) and replace it with a mandatory life sentence. Very unusually for a private member’s bill, it was passed, and became the Murder (Abolition of Death Penalty) Act 1965. But it contained a so-called sunset clause which stipulated that its provisions would expire on 31 July 1970 unless both houses of Parliament passed affirmative resolutions to confirm it.

In December 1969, the home secretary, James Callaghan, moved to make abolition permanent. The House of Commons passed a resolution on 16 December and the House of Lords two days later, and murder ceased to be a capital crime for good. But some potential uses of the death penalty remained available. The Criminal Damage Act 1971 abolished the offence of arson in a royal dockyard, which had previously been a capital crime.

The last death penalty was handed down in 1973: a young Northern Irishman called Liam Holden was condemned for the murder of a British soldier, Private Frank Bell of 2nd Battalion, The Parachute Regiment, in Belfast the year before. It was rapidly commuted to life imprisonment by the secretary of state for Northern Ireland, William Whitelaw. Holden died late last year. The summer of his sentencing, Parliament passed the Northern Ireland (Emergency Provisions) Act 1973, which brought the province into line with the rest of the United Kingdom by abolishing the death penalty for murder.

In 1981, espionage ceased to be a capital crime under the Armed Forces Act 1981. But it wouldn’t be until 1998 that the last vestiges of state execution were removed from United Kingdom law: in September, the Crime and Disorder Act 1998 abolished the death penalty for treason and piracy with violence (this came about thanks to an amendment proposed in the House of Lords by Lord Archer of Sandwell, a former Labour law officer), the last civilian offences to be capital crimes. In November, the armed forces followed suit. The Human Rights Act 1998 made capital punishment illegal, removing it as the sentence for six crimes under military jurisdiction: serious misconduct in action; assisting the enemy; obstructing operations, giving false air signals; mutiny or incitement to mutiny; and failure to suppress a mutiny with intent to assist the enemy. The age of state execution in the United Kingdom had finally come to an end.

It should be no surprise, really, that it was the Conservative MP for Ashfield, Lee Anderson, newly appointed deputy chairman of the party, who brought the issue back to the top of the pile of public affairs. A former coalminer who was a Labour councillor in the not-too-distant past, he has made ‘plain speaking’ his brand. A Brexiteer, he espouses a predictable set of opinions believed to typify working class voters in Red Wall seats: reducing overseas aid, tough measures against ‘nuisance neighbours’, Travellers, economic migrants (into which category he believes most soi disant refugees fall), opposing Covid-19 passes and regarding the BBC as a left-leaning establishment with a grudge against Conservatives in general and Boris Johnson in particular.

He is, of course, a member of the dully predictable and witlessly right-wing Common Sense Group (the irony!), formed in the summer of 2020 as a kind of rebranding of the old socially conservative Cornerstone Group (dubbed “Tombstone” by its opponents). The group has published a kind of manifesto, Common Sense: Conservative thinking for a post-liberal age, which in its title perhaps nods to Thomas Paine’s 1776 work advocating American independence from Great Britain; it is open to question whether the Anglo-American revolutionary and political theorist would assent to many of the group’s principles. Anderson is, essentially, the sort of man who can be relied upon never to say anything surprising or unpredictable.

In an interview with The Spectator, conducted before he was appointed deputy party chairman, he revealed that he supported the reintroduction of the death penalty. “Nobody has ever committed a crime after being executed. You know that, don’t you? 100 per cent success rate.” An assertion which is as true as it is pointless to the debate. But he was alive to the “optics” of this statement. “Now I’d be very careful on that one because you’ll get the certain groups saying: ‘You can never prove it.’” To frustrate this line of argument, he clarified that he would only support capital punishment in cases in which guilt was beyond question, pointing to the murder of Fusilier Lee Rigby in Woolwich in May 2013, where there was video evidence of the killers’ guilt. “I mean: they should have gone, same week. I don’t want to pay for these people.”

Anderson may not present the most nuanced case for restoring capital punishment, but in supporting its return he is no espousing a fringe view. A YouGov survey in 2022 suggested that 40 per cent were in favour of bringing back hanging, with 50 per cent opposed and 10 per cent unsure. That is, clearly, not a majority, but it is sufficient to stop the idea being dismissed as crankish. Nor is Anderson’s stance electorally foolish: Conservative voters are more likely to support the death penalty (58 per cent in favour, according to YouGov’s study). There is more detail which is relevant. Although those supporting the death penalty in general are a minority, that flips when you ask people about specific crimes: 55 per cent support capital punishment for multiple murders, 54 per cent for acts of terrorism which involve murder, and 52 per cent for the murder of a child. (This has declined substantially over the decades: in 1981, it was estimated that 80 per cent favoured the restoration of hanging for the murder of a law enforcement officer and terrorist murder.)

What is interesting is that there has been no point since 1969 at which the restoration of the death penalty has seemed even slightly likely, even if very senior politicians, sometimes the most senior, have been in favour. Margaret Thatcher voted to restore capital punishment in 1969, and shortly after she became prime minister in 1979 she wanted to bring the death penalty back in Northern Ireland, from which she was eventually dissuaded. In 1983, she wrote to a Cambridge academic, Professor John Gunn, stating that she was personally in favour of restoration.

There is a faint air of the progressive spirit of the 1960s at work here. Although there had been a number of high-profile cases which seemed miscarriages of justice in the period before hanging was suspended—the wrongful execution of Timothy Evans in 1950, the dubious condemnation of Derek Bentley in 1953 and the shocking hanging of Ruth Ellis in 1955—there was not overwhelming public pressure for abolishing capital punishment. A Gallup poll conducted in 1957 found that only 13 per cent of respondents favoured complete abolition, while the rest either supported retention or wanted capital punishment to stay on the statute books for a narrower range of crimes. Another Gallup survey in 1960 identified 78 per cent of respondents as supportive of the sanction’s retention for at least some cases.

Nor was this reactionary sentiment washed away by the Swinging Sixties. A 1964 poll found that those in favour of the death penalty were still a majority, but those against abolition had fallen modestly to 67 per cent. At the general election of March 1966, Sydney Silverman was opposed in his constituency by Patrick Downey, the uncle of Lesley Anne Downey, who had been murdered at the age of 10 by Ian Brady and Myra Hindley. Standing as an explicitly pro-hanging candidate, Downey won 5,000 votes, some 13.7 per cent of the total, and at that point the largest endorsement for a genuinely independent candidate since the Second World War.

The abolition of the death penalty came about as a concerted effort by liberal, progressive Members of Parliament, and even those who were not enthusiastic abolitionists seemed to realise that it was the right thing to do, hence the success of Silverman’s bill in 1965. It is a classic example of the political establishment taking a sort of “Man from Whitehall knows best” approach and acting ahead of public opinion in favour of something its members simply believed to be the right thing to do. It was, of course, of a piece: in December 1965, Roy Jenkins, then the coming man of the Labour government, became home secretary, having been prepared to replace Sir Frank Soskice, the first incumbent under whom no-one went to the gallows, since the summer.

Jenkins is credited with the whole liberal programme of the 1960s, including the legalisation of homosexuality and abortion as well as the abolition of the death penalty and stricter laws against racial discrimination. In fact not all of these measures gained effect during his tenure, as he was only at the Home Office for 23 months, but he somehow captured the zeitgeist, an urbane if pompous and smotheringly self-satisfied figure. But he was highly regarded: The Guardian in 1966 called him the best home secretary of the century “and quite possibly the best since Peel”. At a London Labour conference in May 1967, Jenkins described his aspiration for “a more civilised, more free and less hidebound society” and explained his vision by saying that:

to enlarge the area of individual choice, socially, politically and economically, not just for a few but for the whole community, is very much what democratic socialism is about.

The suspension and eventual abolition of the death penalty very easily fitted into that liberal vision of a new society.

It was not that Parliament scrapped capital punishment and then moved on. It has been debated again and again, generally on a free vote as a matter of conscience (which I’ve always felt leaves a question hanging over the bulk of government policy). Duncan Sandys, former defence minister and Churchill’s son-in-law, tried to introduced legislation in November 1966 to restore capital punishment for the murder of a police officer or prison officer, but was denied even leave to bring in the bill by 292 votes to 170. A similar attempt by Glasgow Cathcart Teddy Taylor in April 1973 was refused by 320 to 178. An amendment to a motion condemning the death penalty, tabled by Jill Knight and allowing capital punishment for terrorist offences, was defeated by 369 votes to 217 in December 1974. Ivan Lawrence’s motion, “That this House demands capital punishment for terrorist offences causing death”, was negatived by 361 votes to 232 in December 1975.

The arrival of the Thatcher government, despite the Lady’s own views, did not make any difference. A motion in July 1979 “that the sentence of capital punishment should again be available to the courts” was defeated by a surprisingly wide margin, 362 to 243. Amendments to the Criminal Justice Bill in 1982 were similarly unsuccessful. When the new Parliament assembled in 1983, one of those who had tabled amendments, Sir Edward Gardner, tried again, tabling a motion “that this House favours the restoration of the death penalty for murder” in July 1983, but it was defeated, as were all the amendments to it. A new clause proposed for the Criminal Justice Bill in April 1987 which would have allowed the death penalty in very specific circumstances was negatived by 342 to 230.

A last attempt to resurrect capital punishment was made during consideration of the Criminal Justice and Public Order Bill in February 1994. New clauses were tabled to allow the death penalty for certain types of murder, but again they were heavily defeated. In June 2013, as a last hurrah, Philip Hollobone, the socially conservative Member for Kettering, introduced a bill to restore capital punishment in England and Wales. It was later withdrawn.

So here we have the strange spectacle of the House of Commons almost deliberately paying no mind to public opinion and voting time and again in favour of maintaining abolition. It has happened on motions, new clauses and amendments to bills, under governments of both political persuasions, whether or not the prime minister was in favour.

Yet, the subject will not go away. Despite it being nearly 60 years since the last condemned men were executed, and an absolute unwillingness on the part of Parliament as a whole to restore capital punishment, it is not quaint or hyper-conservative to believe it should be restored. Lee Anderson knew perfectly well what he was doing when he expressed his views to The Spectator, as did Priti Patel, the former home secretary, when she said she favoured it in 2006 as a Conservative candidate, and again in 2011 as a newly elected MP, “for the most serious and significant crimes”.

The idea of restoring the death penalty—“Bring back ’angin’!”—has become something of a cross between a shibboleth and a shorthand for the conservative, law-and-order right. It is a symbolic belief insofar as it represents, perhaps, the ultimate expression of state power: there is nothing more extreme the government can do to a man save kill him. Its severity means that it also emphasises the “good of the many” argument. The condemned may suffer the ultimate penalty, but that sacrifice is a benefit to the law-abiding community from which the malefactor is permanently removed. Big Brother isn’t just watching, his foot is on your neck and he’s increasing the pressure.

And it is shorthand because one can fairly intuit a number of other opinions from someone’s support for capital punishment. This is not without exceptions, but someone who believes in the death penalty is likely to favour longer and harsher prison sentences, tougher sanctions for all sorts of crimes, a strong and well-funded police force and social conformity in general. The rope is not Bohemian, darling. And it is no coincidence that it all but disappeared in the Swinging Sixties. In a culture of extremely short attention spans and micro-messaging, to say you are a hanger says so much more.

There are exceptions to this rule, on of the most notable being observant Roman Catholics. They are often very socially conservative, especially on sexuality and gender, and believe strongly in the centrality of the family to the whole construct of society, but they are, or should be, opposed to the death penalty. This was very much not always the case, and centuries of theologians have worried away at what constitutes “lawful slaying”, but the Second Vatican Council (1962-65) which came out against most of its uses, before St John Paul II, during his long papacy, forged a consensus against the death penalty, on the grounds that it was “both cruel and unnecessary”.

The current position is clear: in a speech to Vatican ambassadors last year, Pope Francis stressed that:

The death penalty cannot be employed for a purported state justice, since it does not constitute a deterrent nor render justice to victims, but only fuels the thirst for vengeance.

This built on his 2020 encyclical, Fratelli tutti, dedicated to fraternity and social friendship and issued on the feast of St Francis of Assisi, from whose Admonitions it takes its title. In it, the pope stated clearly that the death penalty was “inadmissible” and, to remove any doubt, added that “there can be no stepping back from this position”. But he went further, saying that the gradual discontinuation of capital punishment was not only a good thing in itself but spoke to his conception of the human condition. “The firm rejection of the death penalty shows to what extent it is possible to recognise the inalienable dignity of every human being and to accept that he or she has a place in this universe.”

(I know I’ve put a lot of weight on the words “observant Roman Catholics”, perhaps more than they can bear. All I’m saying (because this is an odd but keenly felt bugbear of mine) is that if you profess to be a Catholic you make religious submission to the pope and all other bishops. It’s table d’hôte, not à la carte.)

I won’t attempt here to describe the arguments for and against capital punishment. I know there is strong and sincere feeling on both sides, and I see why. But for the moment I’m interested in the death penalty mainly as a political badge of identity or keystone of beliefs. We do know from opinion polling that men and older people are more likely to be in favour of bringing back hanging. This fits with a general trend that older people are more conservative, though perhaps not with the trend that the Conservative Party had traditionally done much better than expected with female voters. However, as the next generation voters come to political awareness and on to the electoral roll, there is some evidence to suggest that their seniors are not drifting rightward, which is an interesting phenomenon with potentially very great implications for our political culture.

We tend to assume that the death penalty is the sign of a repressive or conservative régime, and often it is (though it is not as simple as a causal link). We except the United States, of course, whose political culture we like to sneer at or pity, but we forget that, for example, Japan still sends criminals to their deaths, as does South Korea. (We also tend to forget that France, our old frenemy across La Manche, carried out its last execution as late as 1977, the year I was born, and used the guillotine.) Fifty-five nation states, home to 60 per cent of the world’s population, still retain the option of a death sentence; China, naturally, is the most enthusiastic user, executing more people every year than every other country combined, over 2,000, and that only counts official judicial executions. But it is an important reminder that the UK, by abjuring capital punishment many decades ago, is not the norm.

However much Lee Anderson would like to place a job advertisement for an Albert Pierrepoint de nos jours, it is unlikely that capital punishment will be restored in the UK in the short or even medium term. It is often said glibly by liberals that the European Convention on Human Rights makes it illicit for us to reinstate judicial executions. So it does, but a leader or government who wanted to bring back hanging would, especially in today’s climate, barely blink at infringing our obligations under the ECHR; the idea of our derogation from it is already in the air, however mad and extremist that might sound. And yet the opinion polls indicate strongly that a referendum, for example, would deliver a verdict in favour of restoration, for cases which would be dependent on the wording of the referendum question (that old chestnut).

There is one further point worth putting on the table. Last year, the journalist and biographer Nigel Jones wrote an article for The Spectator about capital punishment. His conclusion intrigued me, and struck a chord. Public confidence in our criminal justice system is not high, adversely affected, no doubt by its presentation by the media. A report prepared last year for the Sentencing Council, the body which produces guidelines on sentencing and seeks to increase public awareness of the criminal justice system, found that 64 per cent of respondents believed sentences in general were too lenient. A bare majority—only 52 per cent—said that they had confidence the criminal justice system was effective, and only 53 per cent said they thought it was fair (sucks to be in that one per cent margin, I suppose).

From any perspective, these are not good numbers. While it is true that confidence in the system grows the more people know about it, we cannot expect every citizen to spend hours a day looking at Ministry of Justice statistics and policy. If we have a system which a large minority of the public thinks in ineffective, unfair and excessively lenient, the natural response is for that minority to call for, or be attracted to those who call for, harsher sentences. In a situation where, depending on the question, 55 per cent of people are in favour of bringing back hanging, well, you can join the dots. There is a lot at stake here.

A round-up for the tl;dr brigade: the death penalty has been off the statute books for most offences for over half a century; it was abolished by Parliament without overwhelming public support; Parliament has time and again rejected opportunities to vote for its restoration; somewhere around half the public think we should reinstate capital punishment. I don’t think it will happen, as I have said, at least not in the immediate future (we have other matters to detain us), but never write it off as a thing of the past. The sword may have been packed away, but it never shattered