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), 7 July 1993

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The failure by the Home Secretary, when considering whether to grant a posthumous free pardon, to recognise that the Royal prerogative of mercy was a flexible power capable of being exercised in many different ways to meet the different circumstances of each particular case, was an error of law susceptible to judicial review.

The Queen's Bench Divisional Court declined to make any formal order pursuant to an application by Iris Bentley for judicial review of the Home Secretary's decision, announced on 1 October 1992, not to recommend a posthumous free pardon for her brother, Derek Bentley, who was sentenced to death in 1952. But the court invited the Home Secretary to reconsider his decision in the light of a generally accepted view that Derek Bentley should have been reprieved.

Bentley was jointly convicted with Christopher Craig for the murder of a police officer. Craig was the one who shot the officer, but being only 16-years-old he could not be sentenced to death and was ordered to be detained during Her Majesty's pleasure. Bentley was convicted as an accomplice, on the basis that, having been arrested by another officer at the scene, he had called out to Craig, before the shooting began, 'Let him have it, Chris'. Bentley, aged 19, was sentenced to death, despite the jury's recommendation for mercy, and was hanged on 28 January 1953.

David Pannick QC and Mark Shaw (B M Birnberg & Co) for the applicant; Stephen Richards and Rabinder Singh (Treasury Solicitor) for the Home Secretary.

LORD JUSTICE WATKINS, giving the reserved judgment of the court, said the applicant had campaigned for almost 40 years for recognition of what she and many others regarded as a gross miscarriage of justice. She now claimed a declaration that the Home Secretary erred in law in declining last year to recommend a posthumous free pardon for her brother.

The Home Secretary concluded that 'nothing had emerged from my review of this case which establishes Derek Bentley's innocence', moral or technical, although he had always agreed with the concern about the case arising from strong feelings that Bentley should not have been hanged.

The applicant argued that the Home Secretary had erred in assuming, following Home Office policy, that the grant of a pardon should depend on Derek Bentley's innocence, rather than on whether he should have been relieved of the punishment imposed.

The Home Secretary argued that the exercise of the Royal prerogative of mercy was not reviewable, because the applicant sought to challenge the criteria upon which the pardon should be granted: this was purely a question of policy which was not justiciable.

In their Lordships' judgment, some aspects of the exercise of the Royal prerogative were amenable to judicial review. Whether it was reviewable in any particular case depended on the nature and subject matter of the decision.

The Home Secretary was probably right in submitting that the formulation of criteria for the exercise of the prerogative by the grant of a free pardon was entirely a matter of policy which was not justiciable.

But it was clear the substance of the applicant's case was that the Home Secretary failed to recognise the fact that the prerogative of mercy was capable of being exercised in many different circumstances and therefore failed to consider the form of pardon which might be appropriate to meet the present case. Such a failure was reviewable.

Setting aside any question of a free (or full) pardon, which should be reserved for cases of moral and technical innocence, there seemed no objection in principle to the grant of a posthumous conditional pardon (the condition being that a lesser sentence was served), notwithstanding that the death sentence had already been carried out.

The grant of such a pardon was a recognition by the state that a mistake had been made and that a reprieve should have been granted.

Their Lordships were far from satisfied that the Home Secretary, whose decision was directed to the grant of a free pardon, had given sufficient consideration to his power to grant some other form of pardon which would be suitable to this case.

While it would not be right to make any formal order or declaration, their Lordships would invite the Home Secretary to look at the matter again.

It should be possible to devise some formula which would amount to a clear acknowledgement that an injustice was done.