England and Wales High Court (Administrative Court) Decisions

"In Craig's case the defence endeavoured to obtain a verdict of manslaughter. Had the jury returned such a verdict I should have passed a sentence of detention for fifteen years as I am convinced that he is a most dangerous criminal......In Bentley's case the jury added a recommendation to mercy. I have no doubt the reason for their recommendation was that they realised that a capital sentence could not be passed on Craig whom they probably regarded as the worst of the two. So far as merits were concerned, I regret to say I could find no mitigating circumstances in Bentley's case. He was armed with a knuckleduster of the most formidable type that I have ever seen and also with a sharp pointed knife and he called out to Craig when he was arrested to start the shooting."

"It was a very bad murder, involving the death of a police officer, committed at a time when there is much public anxiety about numbers of crimes of violence. Many of these crimes of violence are committed by young persons and I must pay regard to the deterrent effect which the carrying out of the sentence in this case would be likely to have. If Craig had been of an age when he could have been executed, the sentence would have been carried out in his case and there would have been no grounds for interfering with the sentence against Bentley. It would be dangerous to give the impression that an older adolescent could escape the full penalty by using an accomplice of less than l8 years of age. I feel also that it is important to protect the unarmed police."

"I have concluded that nothing has emerged from my review of this case which establishes Derek Bentley's innocence and that I therefore have no grounds for recommending a free pardon...

In my judgment most of the concern that has arisen about this case reflects strong feelings that Derek Bentley should not have been hanged. Personally I have always agreed with that concern but I cannot now simply substitute my judgment for that of the then Home Secretary, Sir David Maxwell Fyfe...

It has been the long established policy of successive Home Secretaries that a Free Pardon in relation to a conviction for an indictable offence should be granted only if the moral as well as technical innocence of the convicted person can be established. I do not believe that is the case on either point in relation to Derek Bentley."

"Successive Home Secretaries have taken the view it would not be right to recommend the exercise of the Royal Prerogative for the grant of a Free Pardon in any particular case unless satisfied that the person concerned is both morally and technically innocent of any crime."

"The effect of a free pardon is such as, in the words of the pardon itself, to remove from the subject of the pardon, all pains, penalties and punishments whatsoever that from the same conviction may ensue', but not to eliminate the conviction itself."

(c) The Home Secretary failed to have regard to relevant considerations or he acted perversely. If a Free Pardon leaves the conviction unaffected but expunges the penalty, the question in considering the grant of a free pardon is not whether Derek Bentley was innocent of the crime, but whether, in all the circumstances, he should be relieved of the punishment which was imposed. The punishment was, of course, the sentence of death, which Sir David Maxwell Fyfe refused to commute to life imprisonment.

(2) It may be that the Home Secretary asked himself the wrong question because he was following Home Office policy in relation to a Free Pardon, which policy was established long before the judgment of the Court of Appeal in R. V. Foster. Had the Home Secretary asked himself the right question and considered whether the law should recognise that the penalty of death should not have been carried out, it is very probable that the Home Secretary would have recommended a Free Pardon, seeing that (a) the jury recommended mercy, (b) Craig was not executed, (c) Philip Allen and Sir Frank Newsam advised that the jury's recommendation for mercy be acted upon, (d) Bentley was considered to be just above the level of a feeble minded person, (e) Lord Goddard's view that there were "no mitigating circumstances in Bentley's case" was irrational and (f) the Home Secretary had not only stated that "I agree that Derek Bentley should not have been hanged", but also that "I do not believe that I would have reached the same decision as the then Home Secretary".

(3) The application raises an important question of constitutional and administrative law: Is the decision of the Home Secretary subject to judicial review? The answer to that question is that (a) whilst there are statements in a number of cases which suggest, in the context of the prerogative power, decisions of the Home Secretary are not susceptible to judicial review, there are other cases wherein the contrary view is expressed, and (b) there is no good reason for refusing to entertain a judicial review of a decision in relation to a free pardon, especially where the challenge raises a question of law and alleges that the Home Secretary has misunderstood the relevant law.

(a) the grant of a free, i.e. Unconditional, pardon;

(b) the grant of a conditional pardon, whereby the penalty is removed, on condition that a lesser sentence is served; and

(c) the remission, or partial remission, of a penalty.

"A free pardon is granted only on legal grounds or where there is ascertained innocence or a doubt of guilt. A conditional pardon substitutes one punishment for another, such as penal servitude, death etc. A remission of the remainder of the sentence is a customary mode of authorising release from prison."

"Free pardons are reserved for cases in which, according to the opinion of the Secretary of State, a wrongful conviction or the innocence of the accused person is satisfactorily established. Sometimes where there has been a sentence of penal servitude and doubt is thrown on the justice of the conviction, but not to a sufficient extent to justify the grant of a free pardon or the remission of sentence, the case is met by granting a licence, usually accompanied by a remission of the requirements to report to the police."

"I am advised by the Association of Chief Police Officers and believe that the grant of a free pardon is noted on the individual's criminal record so that the conviction in respect of which it was exercised would not be included in any subsequent list of convictions. I am also advised by the Lord Chancellor's Department and believe that copy of the pardon is attached to a court's record sheet. In our respectful submission, the fact that the conviction itself remains intact after the grant of a free pardon is simply because the Crown has no power to quash or to reverse a criminal conviction, which is uniquely a judicial function. That fact has no bearing on the crucial question of what criteria should be adopted before a free pardon is granted."

"The present Home Secretary is fully aware there is nothing to prevent him recommending the grant of a free pardon even in a case in which he is not persuaded that the conviction was wrong. However, he is mindful of the fact that the free pardon has for over a century been used as a remedy for wrongful convictions and has been recognised as such by Parliament and public. It is widely understood that the effect of a free pardon is to clear the name of the person in respect of whom it is granted. He continues to think that a free pardon should be recommended only when the Home Secretary of the day is satisfied that the convicted person was not guilty of the offence charged."

"But I do not think that the right of challenge can be unqualified. It must, I think, depend upon the subject matter of the prerogative power which is exercised. Many examples were given during the argument of prerogative powers which as at present advised I do not think could properly be made the subject of judicial review. Prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers as well as others are not, I think, susceptible to judicial review because their nature and subject matter are such as not to be amenable to the judicial process. The courts are not the place wherein to determine whether a treaty should be concluded or the armed forces disposed in a particular manner, or Parliament dissolved on one date rather than another".

"While I see no a priori reason to rule out "irrationality" as a ground for judicial review of a ministerial decision taken in the exercise of prerogative powers, I find it difficult to envisage in any of the various fields in which the prerogative remains the only source of the relevant decision making power a decision of a kind that would be open to attack through the judicial process upon this ground. Such decisions will generally involve the application of government policy. The reasons for the decision maker taking one course rather than another do not normally involve questions to which, if disputed, the judicial process is adapted to provide the right answer, by which I mean that the kind of evidence that is admissible under judicial procedures and the way in which it has to be adduced tend to exclude from the attention of the court competing policy considerations which, if the executive discretion is to be wisely exercised, need to be weighed against one another   a balancing exercise which judges by their upbringing and experience are ill qualified to perform. So I leave this as an open question to be dealt with on a case to case basis if, indeed, the case should ever arise."

"These courts have had occasion in the past to cut down some of the prerogatives of the Crown; but they have never sought to encroach on the prerogative of mercy. It is not exercised by the Queen herself personally. It is exercised by her on the advice of one of the principal Secretaries of State. He advises her with the greatest conscience and good care. He takes full responsibility for the manner of its exercise. That being so, the law will not enquire into the manner in which the prerogative is exercised. It is outside the competence of the courts to call it into question: Nor would they wish to do so".

"As a matter of constitutional practice it is of course well known that the Crown acted upon the advice of the Home Secretary. But the prerogative was and still would be the prerogative of the Crown alone. It is well established that the courts have no power to review the exercise by the Crown of its prerogative, providing the Crown is acting within the scope of its powers. Nor are the courts entitled to be informed of, let alone to pass any opinion upon, such advice as may have been given to the Crown".

"Except in so far as it may have been altered by the Constitution the legal nature of the exercise of the royal prerogative of mercy in Trinidad and Tobago remains the same as it was in England at common law. At common law this has always been a matter which lies solely in the discretion of the sovereign, who by constitutional convention exercises it in respect of England on the advice of the Home Secretary to whom Her Majesty delegates her discretion. Mercy is not the subject of legal rights. It begins where legal rights end. A convicted person has no legal right even to have his case considered by the Home Secretary in connection with the exercise of the prerogative of mercy. In tendering his advice to the sovereign the Home Secretary is doing something that is often cited as the exemplar of a purely discretionary act as contrasted with the exercise of a quasi judicial function".

"... The prerogative of mercy is a unique extra legal, extra judicial and extraordinary power that cannot be subject to court review".

"The prerogative of mercy is a prerogative power in the strictest sense of that term, for it is peculiar to the Crown and its exercise directly affects the rights of persons. On the other hand it would be inconsistent with the contemporary approach to say that, merely because it is a pure and strict prerogative power, its exercise or non exercise must be immune from curial challenge. There is nothing heterodox in asserting, as Counsel for the Appellant do, that the rule of law requires that challenge should be permitted insofar as issues arise of a kind with which the courts are competent to deal".

"In the end the issue must turn on weighing the competing considerations, a number of which we have stated. Probably it cannot be said that any one answer is necessarily right; it is more a matter of a value or conceptual judgment as to the place in the law and the effectiveness or otherwise of the prerogative of mercy at the present day.

In attempting such a judgment it must be right to exclude any lingering thought that the prerogative of mercy is no more than an arbitrary monarchical right of grace and favour. As developed it has become an integral element in the criminal justice system, a constitutional safeguard against mistakes".

"In principle, a failure to consider exercising the power to grant a pardon should be reviewable, at least if an individual can demonstrate that there is some reason why the Home Secretary should consider the case. It is also difficult to see why a decision to refuse a pardon should not also be reviewable in appropriate circumstances, for example, where the allegation is that there has been a failure to consider relevant material, or a failure to act in accordance with any relevant guidelines, or if there is an error of law as to the elements of the offence for which the pardon was sought".

"In the light of a very careful consideration of the evidence produced at the trial and of the representations which have since been made I have been unable to conclude that Bentley was either technically or morally innocent, and consequently it would not be right for me to recommend that he should be pardoned. In my view, Bentley was properly found guilty of murder and, in my opinion, that is the relevant consideration as far as a Free Pardon is concerned in this case.

It has been suggested that Bentley should receive a Free Pardon not because he was innocent but because it was in some way wrong that he was not reprieved. The law relating to murder at the time of his trial required that a person over the age of l8 who was convicted of murder should be sentenced to death. Bentley was properly sentenced in accordance with the requirement of the law. It was the duty of the Home Secretary of the day to decide in each case whether to leave the law to take its course, or whether to recommend a reprieve. The decision rested solely with the judgement of the Home Secretary.

It is clear that, in reaching his decision, the then Home Secretary carefully considered what he believed to be all the relevant considerations as well as the representations made to him. With the passage of time attitudes and values may change. Parliament has, of course, since changed the law to abolish capital punishment for murder. While I recognise that I am putting myself in the position of a predecessor working in a different climate of opinion, I do not believe that I would have reached the same decision as the then Home Secretary. But none of this provides sufficient reason to set up a public inquiry or recommend a posthumous Free Pardon in order to be disassociated from a decision with which many people might now disagree."

(l) Christopher Craig, who fired the fatal shot, was not executed.

(2) The jury recommended mercy in the case of Derek Bentley.

(3) Both Mr. Philip Allen, who wrote the memorandum dated l6 January l953, and Sir Frank Newsam, the Permanent Secretary, advised that effect should be given to the jury's recommendation for mercy.

(4) The precedents established by the previous cases to which Mr. Allen drew attention supported the argument for a reprieve.

(5) Tests which had been carried out indicated that Bentley's mental state was "just above the level of a feeble minded person". He was aged nineteen.

(6) It seems clear from the memorandum initialled by the Secretary of State dated 22 January l953 that he consulted Lord Goddard, the trial judge, before making his final decision. It will be remembered that in his letter to the Secretary of State dated l2 December l952 Lord Goddard had said that he could find "no mitigating circumstances in Bentley's case".

(a) is there any objection in principle to the grant of a posthumous conditional pardon?

(b) was the Home Secretary in error in failing to consider the grant of a conditional pardon in this case?

"The prerogative of mercy can no longer be regarded as no more than an arbitrary monarchical right of grace and favour".

MR PANNICK: Can I thank your Lordships on behalf of

LORD JUSTICE WATKINS: Mr Richards?

MR RICHARDS: My Lords, in the light of your Lordships

LORD JUSTICE WATKINS: Mr Pannick, are you legally aided?

MR PANNICK: My Lord, we are legally aided. It is a matter of whether or not the Legal Aid Fund ought to bear the costs of this application. Although your Lordships are making no formal order you have clearly accepted our submissions to a reviewability of this decision and your Lordships have expressed strong views as to the need for the Secretary of State to consider the matter again. In those circumstances, I would submit costs must follow.

LORD JUSTICE WATKINS: Mr Pannick, the decision we will make

© Crown Copyright