Boris Johnson And The Death Penalty

How does it feel to be blasted by a water cannon? Dietrich Wagner can tell you from personal experience.

“The water shot from the cannon tore through my eyelids and almost completely blinded me… it smashed through my cheekbone and if the spray had continued for just one more second it would have hit my brain and I would have lost my life”, is how he described it in his article in the Telegraph

Despite the known risks, London mayor Boris Johnson approved the Metropolitan Police’s request to go shopping for three Wasserwerfer (water thrower) water cannon to quell potential future unrest in the nation’s capital. “Boris Hit by Cannon Blow”, “Theresa May Shoots Down Boris Johnson Water Cannon” and “Theresa May Pours Cold Water on Boris Johnson’s Water Cannon” screamed the newspaper’s headlines in response, and the issue was hotly tweeted, blogged and debated by all and sundry.

What was all the fuss about? The emotional impact of such totalitarian spielzeug, or realistic concerns about serious harm or even death ensuing as a result of such repressive measures? What would happen if someone were to die as a result of being targeted with force by riot police?

The answer may surprise you. Apart from a national outcry, there would be no legal repercussions for the police. The reason for this can be found in the small print of the Lisbon Treaty which refers to a different document: the European Convention on Human Rights, which became legally binding for all signatories of the Lisbon Treaty. This human rights document states that the state is legally entitled to use potentially lethal force against rioters:

Article 2 of the European Convention on Human Rights (emphasis mine):

Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.

In other words, if one of Boris Johnson’s water cannon killed a protestor, no one would be punished over it. Our politicians and the police are quite safe by hiding behind the Lisbon Treaty and the European Convention on Human Rights. Or so they think.

Author Ned May of Gates of Vienna puts it even better:

A cautious reading of the text supports the idea that 2(c) simply absolves the police or military personnel from blame if they are required by circumstances to shoot and kill rioters during an insurrection.

On the other hand, there does seem to be some wiggle room in this clause. The American tradition of scepticism assumes that governments will tend to act tyrannically unless specifically prevented from doing so, and a tyrant might well find ample flexibility in the ECHR that would allow him to bend it to his will.

But there is more. Quite separate from the clause allowing death through the use of force, there is a different clause making provision for implementing capital punishment:

Article 2 of Protocol No 6 to the ECHR: (a protocol is a treaty or international agreement that supplements a previous treaty or international agreement. A protocol can amend the previous treaty, or add additional provisions)


'A State may make provision in its law for the death penalty in respect of acts
committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions…'

This means that there are two separate issues here, covered in separate articles and footnotes in the interconnected Lisbon Treaty and the EU Charter:

1. Loss of life through force used by the state in whichever situation the state thinks necessary 

2. The death penalty in certain situations such as war or a perceived threat of war

The wording is vague enough to allow the state to interpret it in a most liberal way: who is to say that nationwide rioting can’t potentially lead to a civil war, thus creating the conditions for the death penalty ‘in time of imminent war’? This Lisbon Treaty - EU Charter of Fundamental Rights hook-up looks like a lethal combination to protect the state.

Instead of protecting citizens from the state, these documents put in force measures to protect the state from its citizens.

Did our faithful politicians realise what they were signing up for when they were presented with the Lisbon Treaty?

Unfortunately, the annals of our parliament clearly show how the issue of Article 2 of Protocol No 6 (death penalty in times of war or imminent threat of war) was debated on 20 May 1998.  As we all know, the signing of the Lisbon treaty went ahead anyway, and we now have a European law that permits both potentially lethal force to be inflicted on anyone who wants to show his disapproval of the government by protesting AND the death penalty, presumably through a court of law, in cases of real or perceived threats of war.

Does Boris Johnson know this? It so happens that he is married to Marina Wheeler, a lawyer specialising in public law and human rights. They met when Boris was in Brussels covering the European Parliament for The Daily Telegraph. Their conversations at the kitchen table must have been illuminating to say the least. We can safely assume that Boris is very well informed.

What are Boris’ feelings on capital punishment? During his days as a journalist at the Telegraph he confided to a colleague that he was against Europe and against hanging. In 2004 he sought assurances from the government that Saddam Hussein would be spared the noose when he was going to be handed over to the Iraqis for trial, and he voted against the Lisbon Treaty in 2008. So at first glance, Boris doesn’t seem very happy about either the death penalty or the Lisbon Treaty, but he seems less concerned about the value of a human life when it concerns his own beat.

Interestingly, his current spat with the media and with his fellow MPs over how to handle potential riots coincides with the 50th anniversary of the suspension of capital punishment in Britain.

So who should be afraid of the death penalty today? Should UK citizens have to worry about the reintroduction of capital punishment through the Lisbon Treaty and the European charter for human rights? 

The public’s attitudes about the death penalty have always been in stark contrast with politicians’ preferences, but perhaps we should differentiate between the death penalty for civil crimes like murder and the death penalty for crimes against the state as perceived by the state. 

In 1965 MPs voted 200 to 98 to suspend the death penalty for murder, even though opinion polls suggested the vast majority of electors wanted it kept on the statute books. In 1998, the Crime and Disorder Act formally abolished the death penalty for treason. 

The following surveys don’t make a clear distinction between the different reasons for wanting capital punishment reinstated:

A 2009 Channel 4 television survey showed that 70% of the public favoured reinstating the death penalty for at least one of the following crimes: armed robbery, rape, crimes related to paedophilia, terrorism, adult murder, child murder, child rape, treason, child abuse, or kidnapping.

A 2014 Social Attitudes Survey came to the conclusion that 48 per cent of people no longer want the death penalty reintroduced. This survey counted the respondents who agreed with the statement: "For some crimes, the death penalty is the most appropriate sentence". The question is: which crimes? 

Richard Clark, author of Capital Punishment in Britain, explained: “My own survey shows more support from the over 50s group, particularly men, and far less interest from young people,” and: “…a lot of people who are liberal over sexual matters are not so over crime, especially crimes like child rape.”

While MPs debate the crime of rioting, the public are more concerned with crimes like paedophilia and murder. Perhaps our politicians are worried about the nation’s outrage at cover-up of institutional and ritual abuse and rape of children, financial oppression and the dismantling of our services. Could that be the reason why they voted so selectively for drastic measures to ensure that no citizen would be likely to cramp their style? 

The Lisbon Treaty with its obligatory European Convention on Human Rights has given our leaders the means to protect themselves from the public. Boris Johnson’s water cannon are merely the visible outcome of what is already written in European law: the death penalty serves to protect the state from its citizens, not the citizens from the state.

“You need to look at the great anxieties of the police,” Boris explained the background to his purchase to the BBC. He went on to explain that the measure was intended to be kept in reserve for extreme instances of discontent. The hidden death clauses in the Lisbon Treaty were no doubt approved with the same purpose in mind.