§ 9.46 p.m.
§ Lord Airedale rose to move to resolve that, in order to give effect to the desire of Her Majesty's Government that Parliament should express its opinion on the question whether the term "free pardon" should be replaced by an expression denoting exoneration rather than forgiveness (Cmnd. 8856, paragraph 19), this House would welcome legislation to give effect to such a change.
The noble Lord said: My Lords, this topic has been a hobby-horse of mine for some time. I remember raising it at Question Time when the late Lord Dilhorne was Lord Chancellor. The Lord Chancellor expressed a view that the expression "Free Pardon" was well understood. I am sure it is well understood by lawyers; but it is expecting rather much of the man in the street to expect him to understand that in this particular case the word "pardon" is being used in a very special and peculiar way. That it is so is made abundantly clear by Sir Frank Newsam, who was Permanent Under-Secretary of State at the Home Office, in his book entitled "The Home Office". Sir Frank writes at page 114,
A Free Pardon wipes out not only the sentence or penalty, but the conviction and all its consequences, and from the time it is granted leaves the person pardoned in exactly the same position as if he had never been convicted".
Why is it then called a "free pardon"? I believe that the answer lies in history. I believe that there was a time when it was thought unwise to admit publicly that the High Court was capable of injustice and so the free pardon was a device whereby the court's authority and dignity was upheld and ultimate justice could still be done to the wrongly convicted person.
The Home Affairs Committee of another place in its Sixth Report in the 1981–82 Session entitled "Miscarriages of Justice"(it is House of Commons paper 421) said in its recommendation at paragraph 31:
We wish finally to comment on the use of the traditional phrase 'free pardon'. The word 'pardon' implies a state of guilt for which some kind of official absolution is required, and is clearly inappropriate to a situation in which a man is finally pronounced to be innocent of the crime for which he was convicted.
We consider that the introduction of a new procedure for the investigation of possible miscarriages of justice should also provide the occasion for the replacement of the term 'free pardon' by some word bearing the correct connotation of annulment, cancellation or revocation of a conviction".
The Government published their reply to that report in Cmnd. 8856 and in paragraph 19 they say:
If, as suggested in the preceding paragraphs, a free pardon should continue to be granted only where innocence seems to be established, the Government understand why the use of the term 'pardon' may be thought not entirely appropriate. But to confer a power expressly to annul, cancel or revoke a conviction would require legislation. The Government will give further thought to this matter when a suitable opportunity for legislation arises. And would meanwhile welcome the further expression of Parliamentary and public opinion on the question".
I suppose that the appropriate way in another place of discovering parliamentary opinion is by means of the Early Day Motion procedure, which we do not have here. As far as I know, the only way of finding out the opinion of your Lordships is by holding a debate. I
hope I have said enough to introduce the topic and I think I had better stop talking and listen to the views of other noble Lords. May I say that if I am challenged to put an expression in place of "free pardon", I merely suggest a "grant of exoneration". But it may well be that wiser heads than mine will think of a better and more appropriate phrase. I beg to move.
§ Moved, To resolve that, in order to give effect to the desire of Her Majesty's Government that Parliament should express its opinion on the question whether the term "free pardon" should be replaced by an expression denoting exoneration rather than forgiveness (Cmnd. 8856, paragraph 19), this House would welcome legislation to give effect to such a change.—(Lord Airedale.)
§ 9.52 p.m.
§ Viscount Hanworth
My Lords, there is merit in preserving old traditions even when they are for all practical purposes nonsense with reality. I submit, however, that there is absolutely no merit in continuing out-of-date traditions where they are misleading to the general public and, more importantly, a slight not understood by those directly concerned. I have some sympathy with the Scottish practice of sometimes giving a verdict of non-proven; but those who know about this would draw conclusions between this and our own idea of free pardon. The feeling there, of course, is that the person is not guilty and has merely been pardoned. It may be that some people would consider that this issue is not of great importance, bearing in mind the number of people concerned and that they would not have raised it themselves. But the noble Lord who has raised this Motion has done rightly in my view and our support for him should therefore be wholehearted.
§ Lord Foot
My Lords, I welcome the opportunity to take part briefly in this important debate, partly because it does not often happen in this life that one is able in a debate to find oneself in a position where there is everything to be said on one side and nothing to be said on the other. That is one reason why I take satisfaction in joining in the debate. Nothing could be more ridiculous than the words "free pardon". Both words are inappropriate. "Pardon" is obviously inappropriate if you are exonerating somebody who has been wrongly convicted. What does "free" mean? Does it mean that he has not paid for it? This is something which, in a small way, brings the law into disrepute. I have known cases where people have been convicted for speeding and what has happened is that the police have followed them, taken their speed over a certain distance and then it has been found subsequently that the police misunderstood the distance, that they got it wrong. Therefore for all the people who have been concerned with that particular car or that particular police officer over that particular distance, the conviction has to be cancelled. Therefore they are granted a free pardon. My Lords, I should hesitate to use in this House the sort of language that is used by people who find themselves in that situation. I have the greatest possible pleasure in supporting this Motion.
§ Lord Elwyn-Jones
My Lords, the House will be grateful, even at this late hour, to the noble Lord, Lord Airedale, for introducing this fascinating subject. It affects rather more persons than at first meets the eye. If one looks at the report of the Home Affairs Committee on miscarriages of justice and sees the number of free pardons, in 1980 there were as many as 270, and the total over the years from 1972 to 1980 was 2,180. So this is a frequent occurrence in the course of the administration of justice. That is why perhaps one sees that the Home Office view is that if the change is to be made it should be done by legislation. It is not a sort of hole-in-the-corner administrative act: it has a far wider implication. At the moment I suppose the rare event of executive interference with the judiciary, by way of the Home Secretary granting a free pardon, is an exercise—and perhaps the noble Lord who is to reply will correct me if I am wrong—of the Royal Prerogative.
So one is in a rather difficult constitutional field here, I think; rather more complicated than at first meets the eye. But looking at the etymological history of the words "free pardon", a look at the dictionaries provides fascinating answers. The Oxford Dictionary describes "pardon" as:To remit the penalty …; to pass over (an offence or offender) without punishment or blame; to forgive.The point the noble Lord is making is that that is an implication that there was blame somewhere and this is a passing over of blame. But Stroud in his Judicial Dictionary, which happily is still of some weight and authority—thank goodness! because, speaking for myself, I refer to it so frequently in a difficult forensic moment—defines a "free pardon" as follows:What is the effect of a free pardon? It is clear that it extends to far more than merely acquitting of punishment. It is, in fact, a purging of the offence. In Hale … it is stated that the King's pardon takes away poenam et culpam."Punishment and blame, I think, if my grammar school Latin is right, and happily the noble and learned Lord the Lord Chancellor is not here to correct me.…in Hawk…it is said that 'the pardon of a treason or felony, even after a conviction or attainder, does so far clear the party from the infamy and all other consequences of his crime that he may not only have an action for a scandal in calling him traitor or FELON after the time of the pardon, but may also be a good witness notwithstanding the attainder or conviction, because the pardon makes him, as it were, a new man and gives him a new capacity and credit.'
§ Viscount Hanworth
My Lords, if I may, because I think that the noble and learned Lord is saying that what was meant before implied that the person concerned had been guilty of a crime. What we are saying is that the pardon we want does not imply there was any crime beforehand. Those concerned are completely discharged. Everything that the noble and learned Lord has been saying implies that they had a crime and they committed a crime.
§ Lord Elwyn-Jones
My Lords, I am sorry that the noble Viscount did not allow me to continue my discourse, because, as I have said, there was certainly one historical period when the effect of a pardon was almost an ennoblement, an adornment—more than a mere exculpation. To complete my etymological semantic survey, Jowitt's Dictionary of English Law repeats much the same language as the language of Stroud:The effect of a pardon is to make the offender a new man (novus homo) to acquit him of all corporal penalties and forfeitures annexed to the offence pardoned, and not so much to restore his former as to give him new credit and capacity. Nevertheless the judgment remains formally unreversed.I sympathise with the point that has been raised by the noble Lord, Lord Airedale. All I am saying is that a free pardon has acquired a certain significance in the mind's eye, perhaps even in the public's eye, as something more than a mere remission of a crime; something more significant than that.
I am not sure that I am very impressed with the proposed alternative of a grant of exoneration. I am not very sure about that, purely as a matter of semantics. However, what appears to be clear is that if we are to embark upon this—I am sorry that I am taking so much time; I shall not be much longer—field of the Royal Prerogative it may well need legislation to cure it. That is all I say. I am naturally grateful to the noble Lord for introducing us to this enticing subject, which leaves something to be done.
§ 10.2 p.m.
§ The Parliamentary Under-Secretary of State, Home Office (Lord Elton)
My Lords, the House is indebted to the noble Lord, Lord Airedale, for this opportunity to consider a matter on which the Government have invited parliamentary and public comment. The noble Lord has asserted consistently for many years that the term "free pardon" is not an entirely appropriate description of the exercise of the Royal Prerogative of Mercy when that mercy is applied to persons who, having been convicted of an offence, appear to have been proved innocent of it. It has been suggested that where a convicted person is proved innocent and has been granted a free pardon in its present form, the idea might still linger on that he or she was in fact guilty but had earned the pardon or qualified for it by some means other than the establishment of his or her innocence. Over the years, much thought has been given to the possibility of replacing the term with an expression suggesting exoneration rather than forgiveness. I find myself instantly using the word suggested by the noble Lord himself. I think I had better start my reply to the noble Lord's very able exposition of his views by outlining briefly how the present system works, the role of the Home Secretary and the effect of a free pardon. First, I must emphasise that there is one fundamental constitutional principle to which successive Home Secretaries have always had due regard. It is the principle that the executive should not interfere with, or overrule, the decisions of the judiciary, save in the most exceptional circumstances. If it appears that there is a need to amend a judicial decision, the best course will normally be for the courts themselves to do it.
In practice, therefore, the Home Secretary will not normally consider recommending the grant of a free 103 pardon in cases where a more straightforward legal remedy exists as an alternative. Where, for example, he is able under Section 17 of the Criminal Appeal Act 1968 to refer a matter to the Court of Appeal for determination, that is what he will do. Given the existence of this alternative power, a free pardon is normally recommended only when two preconditions are satisfied: first, there must not merely be doubts about the defendant's guilt; there must be convincing grounds for thinking that he is innocent. Nor is it sufficient for this purpose that the defendant is merely "technically" innocent of the offence. The grant of a free pardon is confined as far as possible to those who are innocent morally as well as technically.
This is the so-called "clean hands" doctrine. Before he recommends a free pardon, the Home Secretary must be satisfied both that the defendant had no intention of committing an offence and that in fact he did not commit one. Secondly, there must be good reason why the matter cannot be referred to the courts—the lapse of time since the original trial, for instance, or the nature of the evidence which has called the conviction into question.
The broad principles which govern the use of the Prerogative apply to cases tried summarily, just as they do to those tried on indictment. But the Prerogative is more freely used in the former category. The noble and learned Lord, Lord Elwyn-Jones, gave us the total number of cases since 1972. It was a little higher than the total number of cases which I gave since 1973, which is 2,146 for summary cases. This compares with something like eight over the same period for cases tried on indictment. One reason for this is that in summary cases there is no provision corresponding to Section 17 of the Criminal Appeal Act 1968 by which the Home Secretary can refer a case back to the courts. This is a matter which the Government have under consideration and to which I shall return later—but not much later.
Another reason for the freer use of the Prerogative in summary cases is that the much larger number of cases which come before magistrates' courts and the highly technical content of much of the legislation involved, particularly in road traffic cases—I believe it was the noble Lord, Lord Foot, who instanced some of them—make it almost inevitable that a number of clear miscarriages of justice will occur because of defects in prosecution and court procedure. In many such cases the defendant will, for reasons of which many of us will be all too readily aware, have pleaded guilty. If he has, he has no right of appeal against conviction and there is some legal doubt whether the straightforward remission of a sentence awarded in such cases would also remove any associated suspension or endorsement of a driving licence.
The "clean hands" doctrine is in practice therefore somewhat modified in its application to road traffic cases. A free pardon is normally recommended whenever a conviction resulting in an endorsement or disqualification is shown to be defective. A typical example of such a case is where a number of motorists have been convicted of exceeding the speed limit on a particular stretch of road and it is later discovered that the limit is, due to some procedural or technical defect, invalid: there was no speed limit. But in general the 104 power to recommend the grant of a free pardonis used sparingly. The Prerogative is seen as a long stop, used in the last resort to rectify miscarriages of justice which the courts have failed to prevent and which they cannot reasonably be asked to put right. The nature and effect of the Royal Prerogative are not defined by statute—hence much reading by noble and learned Lords opposite.
A "free pardon" is regarded as relating to the conviction rather than to the convicted person. It is called, I should tell the noble Lord, Lord Foot, a free pardon because it is free from any conditions. It has nothing to do with its value. The warrant signed by Her Majesty the Queen, in which she signifies that it is her pleasure to grant a free pardon, contains the words:grant him our free pardon in respect of the said conviction, thereby pardoning, remitting and releasing unto him all pains, penalties and punishments whatsoever that from the said conviction may ensue".The warrant is placed with the court record and its effect is to divest the conviction of any force or consequences so far as legal penalties are concerned. Steps are also taken to ensure that the conviction is expunged from police records.
The question whether a free pardon goes beyond relieving persons of the legal penalties attaching to a conviction has never been legally tested and the full and precise effects in law of a free pardon are not therefore beyond doubt. In the past, some authorities have considered that the grant of a free pardon cancels or annuls a conviction, but this is not settled law and is not beyond question. The alternative view is that a free pardon merely removes the penal consequences of a conviction and that that is all the prerogative power can do. In other words, it absolves a convicted person from all or any of the punishments imposed by the court but does not actually quash or annul the conviction in quite the same way as an appellate court can. This is so, even though measures are also taken, as I have explained, to ensure that the conviction is not held against the person in any future proceedings, at least without the pardon also being mentioned. The difference between a free pardon and having one's conviction quashed is therefore a fine and perhaps rather academic one, but it is conceivable that it might occasionally give rise to a feeling of injury. The noble and learned Lord, Lord Elwyn-Jones, was quite right to suggest that it was not a simple matter, although it affected a large number of people.
There has, as a result, been a longish search for a preferable alternative. Terms such as "acquittal by Royal Prerogative", "absolute vindication" and "annulment of conviction" have all been considered; but so far no such expression has been thought to be entirely satisfactory. This is usually because they have a judicial flavour and might blur the distinction between the prerogative and judicial processes, which it has been considered important to preserve.
The noble Lord refers in his Motion to the Sixth Report of the Home Affairs Committee. They recommended, inter alia, that the term "free pardon" be replaced by some word bearing the correct connotation of annulment, and so on. But, as I have mentioned, as the law stands at present a free pardon, however it is expressed, does not in fact carry that connotation. As was stated in the Government's 105 response to the Report, and as the noble Lord has helpfully acknowledged, to confer such power would require legislation. This is not, therefore, a straightforward matter of a change of name.
Earlier, I referred briefly to the consideration now being given to possible legislation in respect of those cases tried summarily which are eventually seen to be defective and which, in the absence of any other legal remedy, now attract the exercise of the Royal Prerogative. The Government are considering proposals which would reduce the number of cases in which the Royal Prerogative would be necessary in such circumstances. The obvious remedy is to provide a power to refer questionable convictions recorded in summary proceedings back to the courts.
I think your Lordships will probably agree that legislation to enable that to be done calls for higher priority than legislation to alter the effects of a free pardon or to change the name by which it is known. The number of cases in question is very much greater, and getting them out of the way, so to speak, would simplify the remaining issues concerning free pardons and their effects.
My Lords, the Government are most grateful to the noble Lord for leading the discussion which they have invited on this issue and giving me the opportunity to give a disproportionately full answer to the debate. He has given us a good deal to think about and we shall certainly reflect on the matter in the interval before any suitable legislative vehicle comes before Parliament.
§ Lord Airedale
My Lords, I am most grateful to all noble Lords who have taken part in this short debate and to the Minister for his lucid explanation of how the system works. In a word, my concern is this. If a typical family reads that Jim has been granted a free pardon, if they have access to Stroud's Judicial Dictionary they will arrive at the conclusion that he has been entirely acquitted from all blame; but my fear is that, the way things are, many of them will suppose that Jim committed an offence for which for some special reason they do not understand he has been granted forgiveness. That is the state of affairs which I am seeking to change. The Government have asked Parliament's opinion. Your Lordships have expressed your opinion this evening. I think it very much supports the case that I presented to your Lordships.
§ On Question, Motion agreed to.