​The royal prerogative of mercy

The most recent example of the Royal Prerogative of Mercy [RPM, commonly referred to as a Queen’s Pardon] is the now well-known case of Alan Turing who was convicted on 31 March 1952 of gross indecency with another man. Tragically, shortly after his conviction this war hero, who cracked the German Enigma code thereby shortening the war by two years and saving countless lives, died. A verdict of suicide was recorded.

When the RPM was thankfully, and at long last granted, a Ministry of Justice spokesman said: “Uniquely on this occasion a pardon has been issued without either requirement having been met, reflecting the exceptional nature of Alan Turing’s achievements”. So what are the usual requirements and what does the RPM actually mean?

In the English tradition, the RPM is one of the historic royal prerogatives reserved to the British monarch, in which she can grant pardons to persons convicted of criminal offences. The original use of the RPM arose as a result of the imposition of the death sentence; the RPM then being used to commute such a sentence to a less draconian form of punishment. Today, it can be used to change any sentence or penalty imposed upon a person.

Today, the justice secretary has responsibility for recommending the use of the RPM to Her Majesty the Queen. The defence secretary is responsible for military cases. The RPM is now exercised sparingly and only in cases of great exceptionality.

A decision by the justice secretary to recommend the use of the RPM is usually restricted to cases where:

1. it is impractical for the case to be referred to an appellate court; and

2. new evidence has arisen, that has not been before the courts, which demonstrates beyond any doubt that no offence was committed; or

3. that the defendant did not commit the crime.

There are two types of pardon that may be granted: (i) a Free Pardon; and (ii) a Conditional Pardon.

The effect of a Free Pardon is that the conviction is disregarded to the extent that, as far as possible, the person is relieved of all penalties and other consequences of the conviction. However, the conviction is not quashed; only the courts have the power to quash a conviction. The criteria for determining whether to recommend that Her Majesty the Queen grant a pardon respects the constitutional position that only the courts, and not the government, may determine a person’s guilt. 

In addition to a so-called Free Pardon under the RPM there is also a Conditional Pardon. A Conditional Pardon is used to substitute the courts original penalty with a lesser sentence. The use of a Conditional Pardon has been historically limited to cases when the death penalty required by law had been imposed so as to commute that sentence to one of life imprisonment [See R v Home Secretary, ex parte Bentley [1994] QB 349; [1994] 2 W.L.R. 10].

A Free Pardon, which usually relate to miscarriages of justice, can be described as an “unconditional pardon”.

The exercise of the power is reviewable by the Divisional Court by way of Judicial Review: See R v Secretary of State for the Home Department, ex parte Bentley [1993] 4 All ER 442 which held:

“The court had jurisdiction to review the exercise of the royal prerogative of mercy by the Home Secretary in accord with accepted public law principles since the exercise of the prerogative was an important feature of the criminal justice system and a decision by the Home Secretary which was infected with legal errors ought not to be immune from legal challenge merely because it involved an element of policy or was made under the prerogative.”

In turn, and should the appropriate grounds exist, a decision made by the Divisional Court in an action for judicial review can be appealed to the Court of Appeal: See: Terence McGeough v The Secretary of State for Northern Ireland [2012] NICA 28.

Historically, the principle of a pardon derives from the Act of Settlement 1700 which altered the law so that a pardon could not “stop an impeachment … but there is to be nothing to prevent the king from pardoning after the impeached person has been convicted and sentenced.”

For a modern application of the law see R v Foster (Barry) [1985] QB 115; [1984] 3 W.L.R. 401]. In Foster it was held that the effect of a free pardon was to remove from the subject of the pardon “all pains, penalties, and punishments whatsoever that from the said conviction may ensue” but not to eliminate the conviction itself.

Watkins LJ pointed out [at p71] that counsel:

“…has reminded us that constitutionally the Crown no longer has a prerogative of justice, but only a prerogative of mercy. It cannot, therefore … remove a conviction but only pardon its effects. The Court of Appeal (Criminal Division) is the only body which has statutory power to quash a conviction.”

The Royal Prerogative of Justice was abolished in the 17th Century.

A pardon is thus a common law extra-judicial power which is exercised by the Crown under the Royal Prerogative of Mercy.

However, the prerogative to grant a free pardon remains and is consolidated by the Criminal Appeal Act 1995, section 16:

“(1) Where the Secretary of State refers to the Commission any matter which arises in the consideration of whether to recommend the exercise of Her Majesty’s prerogative of mercy in relation to a conviction and on which he desires their assistance, the Commission shall -

(a) consider the matter referred, and

(b) give to the Secretary of State a statement of their conclusions on it; and the Secretary of State shall, in considering whether so to recommend, treat the Commission’s statement as conclusive of the matter referred.

(2) Where in any case the Commission are of the opinion that the Secretary of State should consider whether to recommend the exercise of Her Majesty’s prerogative of mercy in relation to the case they shall give him reasons for their opinion.”

In the case of Bentley [1994] QB 349 Watkins L.J commented that the prerogative power is:

“A flexible power and its exercise can and should be adapted to meet the circumstances of the particular case  … the prerogative of mercy [can no longer be regarded as] no more than an arbitrary monarchical right of grace and favour. It is now a constitutional safeguard against mistakes.” [1994] QB 349 at 365.

Thus, the power to pardon constitutes a broad and flexible constitutional safeguard against mistakes, encompassing Conditional as well as Free pardons.

The modern statement of the doctrine is found in Watkins L.J judgment in the Court of Appeal in Bentley where he declared:

“We understand the strength of the argument that, despite the fact that a free pardon does not eliminate the conviction, a grant of a free pardon should be reserved for cases where it can be established that the convicted person was morally and technically innocent.” [1994] QB 349 at 364E

The key test is thus whether the person is “morally and technically innocent” of the offence. A former Justice Secretary Kenneth Clarke has previously stated that the subject of the pardon must not be “tainted with unclean hands”.

That test, however, is not definitive and it is important to counterbalance all prevailing and relevant factors. Former Home Secretary, Herbert Gladstone, classically advised the House of Commons in 1907:

“It would be neither desirable nor possible to lay down hard and fast rules as to the exercise of the prerogative of mercy. Numerous considerations – the motive, the degree of premeditation or deliberation, the amount of provocation, the state of mind … character and antecedents … and many other [factors] have to be taken into account in every case.”

It seems that these “numerous considerations” – and rightly so - have taken place in the case of Turing and perhaps explain the Ministry of Justice spokesman’s comments.

In Sarah’s Case [as it is referred to in the media; also R v A [2012] EWCA Crim 434; [2012] 2 Cr. App R. 8 the grant of a Free Pardon was refused by the Ministry of Justice because the Court was unequivocal in its view that Sarah was guilty of the offence with which she was charged, and therefore that the conviction was safe. This is despite the DPP stating at the time that “this was not a case where justice was done or seen to be done” (The Guardian, Thursday 16th December 2010).

In addition the CPS accept that Sarah – a victim of rape who retracted a true complaint - would not now be prosecuted for the perverting the course of justice. Importantly, the prosecution took a neutral stance in the Court of Appeal and did not seek to support the safety of the conviction. An application to have the case heard before the UK Supreme Court was blocked by the Court of Appeal. Sarah’s Case is now lodged before the European Court of Human Rights.

David Malone of Red Lion Chambers and Christopher Snell of No 5 Chambers