Royal prerogative of mercy

In the English and British tradition, the royal prerogative of mercy is one of the historic royal prerogatives of the British monarch, by which they can grant pardons (informally known as a royal pardon) to convicted persons. The royal prerogative of mercy was originally used to permit the monarch to withdraw, or provide alternatives to death sentences; the alternative of penal transportation to "partes abroade" was used since at least 1617.[1] It is now used to change any sentence or penalty.[2] A royal pardon does not overturn a conviction.

"Prerogative of mercy" redirects here. For the prerogative in Rwanda, see Prerogative of mercy (Rwanda).
"Royal pardon" redirects here. For pardons worldwide and in general, see Pardon.

In modern times, by constitutional convention, the prerogative is exercised by the Sovereign on ministerial advice.[3][4][5] Those responsible for recommending its exercise are:

In Commonwealth realms other than the United Kingdom the prerogative is exercised by the governor-general of the realm on behalf of the Sovereign, but still on the advice of government ministers. Specifically, it has been delegated to the federal and state Attorneys-General in Australia and the federal and provincial cabinets in Canada, in respect of federal and provincial offences.[7]

In the important case of Derek Bentley, a court found that this royal prerogative power is "probably" entirely a matter of policy, and thus not justiciable.[8]

Forms of Mercy

Free Pardons

Free pardons release a person from the effect of a penalty or a consequence of a sentence, but they do not quash or overturn the conviction, which remains after the pardon. They were traditionally used where new evidence demonstrated conclusively that no crime was committed or that the individual did not commit the offence, but the expansion of rights of appeal have reduced the need for free pardons, particularly since appeals have the power to quash the original conviction and provide a presumption of innocence.[3]

Conditional Pardons

Conditional pardons substitutes one type of sentence for another, and was often used to substitute a life sentence in place of the death penalty. The abolition of the death penalty and the increase in the rights of appeal, have meant this pardon is rarely used - the last time being 1993.[3]

Remission Pardons

Remission pardons reduce the effect of a sentence, by releasing a prisoner from having to serve some or all of the remainder of their sentence in custody, but the sentence itself remains unaltered. Remission pardons are normally granted on compassionate grounds (although there are now statutory powers available), after an offender provides information to help bring other offenders to justice after they have been convicted (however this is now partly covered by section 74 of the Serious Organised Crime and Police Act 2005), to recognize remarkably good conduct in custody, such as the prevention of escape, injury, or death, or to remedy an incorrectly calculated release date.[3][4]

Examples in Britain

In 1717, King George I's Proclamation for Suppressing of Pirates was issued, promising a general pardon to those pirates who surrendered to the authorities.[9]

In 1884 Queen Victoria exercised the royal prerogative to commute the death sentences of Thomas Dudley and Edwin Stephens to imprisonment for six months due to the circumstances of their crime.[10]

In 2001 two inmates at HMP Prescoed, South Wales, received early release under the prerogative of mercy as a reward for saving the life of the manager of the prison farm when he was attacked and gored by a captive wild boar.[11]

In 2013 a posthumous pardon was awarded to Alan Turing under the prerogative of mercy. Wartime codebreaker Turing had been convicted in 1952 of gross indecency for a consensual homosexual relationship with an adult.[12]

In 2020, the royal prerogative of mercy was used to reduce the minimum tariff that must be served before Steven Gallant could be considered for release on parole. Gallant, who was serving life imprisonment for murder, was granted this reduction in sentence "in recognition of his exceptionally brave actions at Fishmongers' Hall, which helped save people's lives despite the tremendous risk to his own" while confronting terrorist Usman Khan during the 2019 London Bridge attack.[13]

Other Commonwealth countries

Australia

In Australia, the Governor-General acts on the advice of the Attorney-General or Minister for Justice, and may only exercise the prerogative of mercy in relation to a federal offender convicted of a Commonwealth offence. The pardon may be a full pardon (said to be a free, absolute and unconditional pardon), a conditional pardon, a remission or partial remission of a penalty, or the ordering of an inquiry. Each state and territory (apart from the Australian Capital Territory, which only provides for an inquiry) has also enacted legislation providing for the reconsideration of convictions or sentences.[14]

Canada

In Canada the royal prerogative of mercy is established in Letters Patent of the Governor General, who consistent with constitutional convention may grant pardons on the advice of a cabinet minister.[15] In practice, Section 748 of the Criminal Code gives the Governor in Council (i.e. cabinet) the power to exercise the prerogative, which is the preferred approach.[15] The process is administered by the Parole Board of Canada.[16] As Canada has a record suspension process, the royal prerogative is only exercised cases where there is substantial injustice or undue hardship.[16] It is rarely granted: between fiscal years 2013-2014 and 2017-2018 there were only 2 requests for clemency under the prerogative granted, compared to over 9,000 record suspensions or pardons granted under legislative powers in fiscal year 2017-2018 alone.[17]

New Zealand

In New Zealand, the prerogative of mercy is exercised by the Governor-General, as the King's representative, with the power being delegated by the Letters Patent 1983. The Governor-General will act on the advice of the Minister of Justice, and has the power to grant a pardon, refer a case back to the courts for reconsideration, and to reduce a person's sentence.[2]

In 2013, Scott Watson was refused a pardon by Sir Jerry Mateparae under the prerogative of mercy, following advice from the then-Minister of Justice Judith Collins.[18] Kristy McDonald QC was appointed by the government in 2009 to review the evidence, and recommended to the government that there was a lack of new evidence to warrant an exercise of the prerogative of mercy.[19]

In 2020 Andrew Little set up the Criminal Review Commission to review potential miscarriage of justices, as the threshold for the royal prerogative of mercy was deemed to be too high and other avenues to avoid miscarriages of justices were needed.[20] Also in 2020, David Tamihere was granted the prerogative of mercy and his case was referred to the Court of Appeals to be reheard.[21]

Malaysia

In Malaysia, the Yang di-Pertuan Agong has executive power to grant royal pardons. A high-profile example is the pardon of politician Anwar Ibrahim, who had been jailed for sodomy, by Muhammad V of Kelantan after the 2018 Malaysian general election.[22][23]

References
  1. Acts of the Privy Council of England, Colonial Series, Vol. I, 1613-1680, p.12. (1908)
  2. "The Governor-General - The Royal Prerogative of Mercy". Te Kawana Tianara o Aotearoa. Retrieved 17 June 2013.
  3. Ministry of Justice. The Governance of Britain - Review of the Executive Royal Prerogative Powers: Final Report (PDF). UK Parliament. pp. 15–18. Retrieved 16 October 2023.
  4. "Prerogative of Mercy". Parliamentary Debates (Hansard). United Kingdom: House of Lords. 4 November 2014.
  5. See R Blackburn, 'Monarchy and the personal prerogatives' [2004] Public Law 546, explaining that the "personal prerogative" of the monarch is a set of powers that must be exercised according to law, and must follow the advice of the Prime Minister, or in accordance with Parliament and the courts.
  6. "Scotland Act 1998: Section 53", legislation.gov.uk, The National Archives, 1998 c. 46 (s. 53), retrieved 16 October 2023
  7. "Royal Prerogative of Mercy - Fact Sheet". Parole Board of Canada. 4 November 2008. Archived from the original on 3 October 2016. Retrieved 26 December 2012.
  8. Magrath, Paul (8 July 1993). "Law Report: Court recommends Bentley pardon: Regina v Secretary of State for the Home Department, ex parte Bentley - Queen's Bench Divisional Court (Lord Justice Watkins, Lord Justice Neill and Mr Justice Tuckey)". The Independent. London. Retrieved 24 December 2013.
  9. "No. 5573". The London Gazette. 14 September 1717. p. 1.
  10. Falk Moore, Sally (12 August 1984). "SACRIFICING THE BOY". The New York Times.
  11. "Heroic prisoners freed as reward". BBC News. 19 June 2001. Retrieved 16 October 2019.
  12. "Royal pardon for codebreaker Turing". BBC News. 24 December 2013. Retrieved 16 October 2019.
  13. Warburton, Dan; Macaskill, Grace (17 October 2020). "Murderer on day release who foiled London Bridge terrorist is pardoned by Queen". Daily Mirror. Retrieved 18 October 2020.
  14. "Appeals - Royal Prerogative of Mercy". Attorney General's Department. Retrieved 20 January 2021.
  15. "What is the exercise of clemency (Royal Prerogative of Mercy)?". Parole Board of Canada. 18 September 2015. Retrieved 18 October 2020.
  16. "How are requests for clemency reviewed?". Parole Board of Canada. 18 September 2015. Retrieved 18 October 2020.
  17. "Statistics: Parole, Pardons and Clemency". Parole Board of Canada. 18 September 2015. Archived from the original on 6 August 2020. Retrieved 18 October 2020.
  18. Vance, Andrea (9 July 2013). "No royal pardon for Scott Watson". Stuff. Retrieved 27 July 2022.
  19. McDonald, Kristy (2011). ADVICE TO THE MINISTRY OF JUSTICE CONCERNING APPLICATION BY SCOTT WATSON FOR THE EXERCISE OF THE ROYAL PREROGATIVE OF MERCY (PDF). Ministry of Justice (New Zealand).
  20. "Miscarriage of Justice: Nearly 300 applications for review but none completed". NZ Herald. Retrieved 27 July 2022.
  21. White, Mike (21 June 2022). "David Tamihere murder appeal delayed for two years by new DNA testing". Stuff. Retrieved 27 July 2022.
  22. "Malaysia: Mahathir Mohamad says Anwar Ibrahim to be given royal pardon". the Guardian. 11 May 2018. Retrieved 18 June 2021.
  23. "Malaysia's reformist icon Anwar freed, given royal pardon". AP NEWS. 20 April 2021. Retrieved 18 June 2021.
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