Royal prerogative of mercy- a question of transparency

The use of royal pardons has attracted attention over recent months, especially in Northern Ireland where questions have been raised over apparently secret letters of assurance given to so-called “on the runs”. While Ministers have faced calls for greater transparency over the royal prerogative of mercy, a High Court judgement in Belfast last week shed light on 16 occasions when it was used by the previous Government.

The powers exercised under the royal prerogative remain ill-defined. In modern political life the powers are exercised by the UK Government on behalf of Her Majesty. The sovereign, in practice the Justice Secretary or the Northern Ireland Secretary, has the power to grant a free or conditional pardon. It is not equivalent to an acquittal; only the courts have power to quash convictions altogether. The sovereign does normally sign the pardon, although she has no personal role in its award.

The introduction of the Criminal Cases Review Commission (CCRC) in 1997 has reduced the use of the royal pardon considerably, as there is now a mechanism to review possible miscarriages of justice and refer cases to the criminal appeal courts. Pardon remains a flexible process if there is fresh evidence which is available which would not be admissible in court, or not capable of being used in court. A recent example is the pardon given in December 2013 to  the former scientist and father of modern computing Dr Alan Turing, for his conviction for homosexual activity, which the Justice Secretary, Chris Grayling, said would today be  considered “unjust and discriminatory and which has now been repealed” (Royal pardon for WW2 code breaker Dr Alan Turing 24 December 2013 Ministry of Justice Press Notice).

The question of pardons has become live in Northern Ireland where the Government has faced questions about apparently secret letters of assurance given to the “on the runs”, indicating whether they were still wanted for terrorism offences, as part of the peace process there. The term relates to people suspected but not charged or convicted of paramilitary offences during the Troubles. An attempt to create a statutory scheme had to be abandoned when there was insufficient support for the Northern Ireland (Offences) Bill 2005-06 (the Library Briefing, written for second reading, is here). The collapse of the trial of John Antony Downey in February 2014, in relation to the Hyde Park bombing in 1982, prompted the Government to establish an inquiry led by Lady Justice Hallett which is due to report shortly after 30 June. The Northern Ireland Affairs Select Committee is taking evidence on the administrative scheme for the “on the runs” at the same time.

A recent response to a PQ tabled by Kate Hoey from the Northern Ireland Secretary, Theresa Villiers, noted that there was no legal requirement to publicise the use of the prerogative of mercy (RPM). The convention in England and Wales has been to pass the royal prerogative of mercy notice to the Clerk of the Crown in Chancery for sealing, who places the notice in the London Gazette. Mrs Villiers stated that “by convention RPMs signed by HM the Queen are not subsequently published in the Belfast Gazette” (HC Deb 28 April 2014 c511w). In another answer, Mrs Villiers confirmed that there had been no RPMs issued in Northern Ireland since 2002, but at least 365 were issued in the period 1979 to 2002. Records for 1987 to 1997 appeared to be lost. A NIO spokesperson noted that most were issued prior to 1997 when the CCRC was created (BBC News 2 May 2014, “RPM: over 350 issued in Northern Ireland”). In a subsequent oral PQ answer, Mrs Villiers noted that the previous Government had used the RPM on 18 occasions, 16 of which involving terrorism, in order to shorten sentences, not to cancel the offence (HC Deb 11 June 2014 c532).

Mrs Villiers has faced calls for more transparency on the use of pardons, but this remains a separate issue from “on the runs” which will return to the news when the Hallett inquiry is published shortly after 30 June. Press reports suggest that the report may include a section on RPMs during the Troubles (Belfast Telegraph 19 June 2014 “On the Runs inquiry may include section on use of clemency“).

In the event the courts were instrumental in providing transparency. An application for judicial review heard at Belfast High Court of a decision not to award a RPM to Robert Rodgers, a UVF paramilitary, was declined in a judgment by Mr Justice Stephens published on 18 June, 2014. He outlined the principles on which RPMs were issued in Northern Ireland, and set out a summary of 16 RPMs issued by the previous Labour Government intended to ensure equal treatment under the early release scheme for paramilitaries under the Good Friday (Belfast) Agreement. The judgment is available on the Northern Ireland courts website under Rodger’s (Robert James Shaw) Application [2014] NIQB 79 (summary here) and has attracted considerable press comment in Northern Ireland.

Author: Oonagh Gay