A Story of Injustice, Spelled out in These Short Sentences; COMMENTARY

Article excerpt


IS FIFTEEN years really sufficient punishment for the murder of a four-year-oldboy by an adult male?

According to Lord Coulsfield and the European Convention on Human Rights, it is.

Does the brutal killer of a defenceless nurse deserve to know when he will be liberated from jail? Again, according to his Lordship and the international convention which now takes precedence over Scots Law, the answer is yes.

Until the ECHR was incorporated into Scots Law, convicted murderers had no right to know how long they would spend behind bars.

The possibility that life would actually mean life loomed over them as an ever-present reminder of their crimes.

To many, that seems entirely right. Their victims had no opportunity for remission. Nor do their surviving relatives.

The ECHR has reversed the balance of justice. It confers too many benefits on criminals and too few on the victims.

In 1965, when the House of Commons concluded that capital punishment was wrong, it was applying enlightened logic; since murder is evil, murder by the state is as inexcusable as any other kind.

Imprisonment for life was considered a practical and ethically acceptable alternative.

That decision made Britain a more civilised place. The arguments of the great legal theorist Jeremy Bentham (1748-1832), who first advanced the utilitarian case that laws should work to the general benefit of society, had reached fruition. The ECHR is not remotely utilitarian. Bentham, the intellectual father of British penal reform, rejected completely the notion of natural rights. For him the social mood was more important than any abstract theory.

The ECHR takes a less realistic, fundamentally undemocratic approach.

It requires Scottish courts to observe the 'rights' of the criminal but dismisses the notion that the victim is more deserving of our concern.

With each new intervention in Scottish life, the ECHR reveals itself as flawed, rigid and out of touch.

Its inflexible code and doctrine of inalienable rights may make sense in less stable societies which lack our tradition of genuinely impartial justice. …