The court of last resort

The European Court of Human Rights’ ruling that prisoners in Britain sentenced to whole-life tariffs must be guaranteed the right of review after a suitable period of time has brought out the usual froth of right-wing demands for the abolition of the Human Rights Act, which in part binds the British courts to the ECHR as the court of last resort. Tabloid press editors and politicians ever-alert to the possibility of gaining sales and votes from poorly informed, backward-looking folk by further calumniating the European project and advocating extreme forms of punishment for offenders, have put forward the same argument: that these ‘evil monsters’ have permanently deprived their victims of the ‘right to life’ and ought therefore to have their own ‘right to life’ reciprocally withdrawn forever.

I argue that how individuals behave towards one another, and how the State behaves towards its citizens, are two entirely separate ethical issues. Of course people should be discouraged from murdering one another. This is a fundamental principle of all religions; yet, as we know, many millions of innocent people have been and are still being murdered by fanatical religionists around the world. Just because it is also a fundamental principle of the criminal law, supported by the State, that murder is a very serious offence, and some rare types of murder even more so, does not mean that people should therefore be reciprocally murdered by the State. As has been said, ‘murder is a contract between two souls’. It is a private affair. In representing the public interest, the State must set an example to its citizens, before making an example of them.

This principle was recognised in Britain with the abolition of capital punishment in the 1960s, and there is no evidence whatever to suggest that the murder rate – i.e., the numbers of murders committed per million of the population – has increased since then; in fact, the opposite is true. More people were murdered per million head of population in the eighteenth century, when a felon of any age, even a child of ten starving on the street, could be publicly hanged for stealing as little as five shillings’ worth of property. The threat of judicial execution was no deterrent at all: what prevented people from killing one another in even larger numbers was the threat of eternal punishment in the Afterlife.

It was to prevent such abuses of State power that the Court of Human Rights was founded, at the behest of the very British Sir Winston Churchill, in the late 1940s. And in continental Europe; because, in the wake of the Second World War, that was where the best principles of British justice and fairness towards all could be displayed. The Court has nothing whatever to do with the European Union, as many Euro-averse people seem happy to believe.

But the ideal of ‘human rights’, surely a noble one, cannot possibly extend to a fundamental ‘right to life’, of which I could deprive you or you me; and of which, as the right-wingers argue, the murderer on a whole-life tariff has deprived (usually his) victims. Anyone whose loved one has died from cancer or some other dread disease, or been run over unexpectedly by a car, or crushed to death by a window-frame falling from a building in the street, or fatally struck on the head by a cricket-ball, can certify that there is no prescriptive ‘right to life’ that any institution, not even the State, can guarantee. Death intervenes, often in a highly arbitrary manner. The only ‘right to life’ that can be protected is the right not to be killed by your own government, but even that cannot be absolutely guaranteed. Many people die because of mistakes by doctors and nurses, or when under restraint by the very authorities charged with their protection; or because the State has taken them to war in a hostile foreign country. And, of course, ultimately all living organisms die.

So what of the prisoner serving a whole-life tariff? Prison is not a pleasant place to be, and to spend forty or fifty years incarcerated in a state of hopelessness is a punishment I suspect few of us would be willing to risk unless we were in the grip of some madness, given the near-certainty of conviction. The Court’s argument was that it is every prisoner’s right not to be punished with exceptional cruelty, and it was the judges’ view that there should at least be some hope of rehabilitation in theory, at least, if not in practice, if the general principle of prison as being partly a rehabilitating experience is to have any purpose or meaning; and if prisoners were to be motivated to engage with the process. The Court did not demand that ‘these monsters’ ought ever to be set free; only that the principle of human rights, if it is to be protected as a whole, must in part allow for the possibility.

To portray such a nuanced judgement as an attack on British sovereignty is a travesty. If we don’t exactly have a right to life, then at least allow us the right not to be lied-to by cynical politicians and press barons on the make.