Case Facts
The case concerned an application for judicial review brought by Iris Pamala Bentley, the sister of Derek Bentley, who had been executed on 28 January 1953. Derek Bentley (aged 19) and Christopher Craig (aged 16) were convicted of the murder of Police Constable Sidney George Miles at Croydon on 2 November 1952, at the Central Criminal Court on 11 December 1952. Craig fired the fatal shot that killed PC Miles. However, being only 16 years of age at the time, Craig could not be sentenced to death and was instead ordered to be detained during Her Majesty's pleasure. Bentley, despite the jury recommending mercy, was sentenced to death.
Central to the prosecution case against Bentley was the alleged utterance of the words "Let him have it, Chris", said to have been spoken by Bentley to Craig immediately before the shooting, which formed the basis of his liability under the doctrine of joint enterprise. Bentley's appeal against conviction was dismissed by the Court of Criminal Appeal on 13 January 1953, and he was executed on 28 January 1953.
The then Home Secretary declined to exercise the royal prerogative of mercy notwithstanding the jury's recommendation and notwithstanding advice from Home Office officials that "it would not seem right to exact the extreme penalty from the accomplice when the principal offender was escaping with his life."
Following decades of campaigning by his family, on 1 October 1992, Home Secretary Kenneth Clarke refused to recommend a posthumous free pardon. He did so on the basis that it had been the long-established policy of successive Home Secretaries that a free pardon should be granted only where the person concerned was both morally and technically innocent of any crime, and that his review had not established Bentley's innocence — even though Clarke personally expressed the view that Bentley should not have been hanged.
Iris Pamala Bentley sought judicial review of that decision. The specific relief sought comprised: (i) a declaration that the Home Secretary had erred in law in declining to recommend a posthumous free pardon; and (ii) an order of mandamus requiring the Home Secretary to reconsider his decision of 1 October 1992.
Held
The court held, first, that it had jurisdiction to review the Home Secretary's exercise of the royal prerogative of mercy in accordance with accepted public law principles. The prerogative of mercy was an important feature of the criminal justice system, and a decision infected with legal errors ought not to be immune from legal challenge merely because it involved an element of policy or had been made under the prerogative. The primary authority applied for this proposition was CCSU v Minister for Civil Service [1984] (the GCHQ case), which had established that prerogative powers are susceptible to judicial review. Reference was also made to R (Everett) v Secretary of State for Foreign and Commonwealth Affairs [1989] in connection with the reviewability of prerogative powers.
Second, the court held that the Home Secretary's decision was flawed in law. He had failed to recognise that the prerogative of mercy was capable of being exercised in many different circumstances and across a wide range of forms, and had accordingly failed to consider what form of pardon might be appropriate to the particular circumstances of Bentley's case. Crucially, the court held that there was no objection in principle to the grant of a posthumous conditional pardon — as distinct from a free pardon — where a death sentence had already been carried out, since such a pardon would represent recognition by the state that a mistake had been made and that a reprieve ought to have been granted. The Home Secretary had confined his consideration exclusively to whether a free pardon was warranted and had not turned his mind to this alternative.
The court made no formal order on the application: neither the declaration nor mandamus was granted. Instead, the court invited the Home Secretary to reconsider his decision in light of the finding that the previous Home Secretary's failure to grant a reprieve had been clearly wrong, and that the current Home Secretary's failure to consider a conditional pardon amounted to an error of law.
Ratio Decidendi
The ratio of the case is twofold. First, the royal prerogative of mercy, when exercised (or refused) by the Home Secretary, is susceptible to judicial review in accordance with ordinary public law principles. The prerogative does not attract immunity from review simply by virtue of its source in the prerogative or because it involves policy considerations. This principle derives from CCSU v Minister for Civil Service [1984], which the court applied directly.
Second, a Home Secretary who considers only one form of pardon — specifically, the free pardon — when deciding whether to exercise the prerogative of mercy commits an error of law if he fails to consider other available forms of pardon. In the circumstances of this case, a posthumous conditional pardon was available in principle and ought to have been considered. A conditional pardon in this context would constitute formal acknowledgement by the state that a reprieve should have been granted and that an error had been made. The failure to appreciate the breadth of the discretion conferred by the prerogative of mercy, and to consider the full range of its possible exercises, rendered the Home Secretary's decision unlawful.
Obiter Dicta
The court observed, in broader terms, that the prerogative of mercy is a flexible instrument capable of being deployed in a variety of circumstances and in a variety of forms short of a full free pardon. This observation suggests that future applicants in analogous situations need not confine their submissions to seeking a free pardon; other forms of recognition or relief may be available and ought to be considered by the decision-maker. However, each case will necessarily turn on its own particular facts, and the court's observations cannot be read as automatically entitling persons in comparable historical situations to any particular form of relief.