Guardian 7th October reports a matter that is concerning the Supreme Court of the USA.
"Supreme court tensions over capital punishment burst into the open
again on Wednesday as rival justices clashed over a series of gruesome
murders in Kansas that could overturn two-thirds of the US state’s death row cases.
The related cases before the court, Kansas v Gleason and Kansas v
Carr, challenge the Kansas state supreme court’s decision to overturn
death sentences on the grounds that inadequate jury instructions were
Due to language used by judges in the original trials, jurors may not
have realised they were able to consider mitigating circumstances that
were not proven beyond reasonable doubt."
In the law of England and Wales, the definition of the offence is the starting point for determining what must be proved to establish guilt. It is for the prosecution to prove their case against the defendant (the "golden thread"). They must do this, in the time honoured phrase, to the beyond a reasonable doubt standard or, in more modern parlance, so that the decision-maker (jury or magistrates) are "sure" of guilt.
The definition of an offence is to be found either - (1) in legislation (e.g. Theft Act 1968 s.1 defines "theft") but it is also necessary to take into account any judicial decisions relating to that statutory definition; or (2) in common law where the definition is to be distilled from judicial decisions (e.g. murder).
The definition will usually include a statement of the conduct necessary to constitute the offence (often known as the "actus reus") and the mental element (state of mind or "mens rea") needed at the time of committing the actus reus. Mental element may be defined as "intention" or "recklessness." There are also some offences that may be committed negligently and offences of strict liability."
It is every element in the definition of the offence that must be proved by the prosecution to the beyond reasonable doubt standard.
Mitigating factors are matters highly relevant to the sentence to be imposed. The issue in the Kansas cases is: Whether the Eighth Amendment requires that a capital-sentencing jury be affirmatively instructed
that mitigating circumstances “need not be proven beyond a reasonable
doubt,” as the Kansas Supreme Court held in this case, or instead
whether the Eighth Amendment is satisfied by instructions that, in
context, make clear that each juror must individually assess and weigh
any mitigating circumstances.
The 8th amendment states:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
This appears to have been taken from the English Bill of Rights 1688 where it is stated that:
... excessive Baile ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments inflicted.
The phrase "cruel and unusual" is particularly problematic. Obviously, it did not prevent the death penalty in the UK and, sometimes for treason, the death penalty was carried out in an hideous manner. In modern times, the death penalty is prevented by the European Convention on Human Rights Protocol 13.
One of the matters that anyone drafting a new British Bill of Rights should deal with is this older Bill of Rights. Opportunity could be taken to remove the older Bill but it would be necessary to retain and modernise certain aspects of it (e.g. that relating to keeping of standing armies or that provisions relating to the rights of Parliament to hold free debates etc). One phrase that could usefully disappear into history is the phrase "cruel and unusual."