R v Secretary of State for the Home Department ex parte Bentley

Derek Bentley was convicted of the murder of a police constable and was hanged on 28 January 1953 at the age of nineteen. His co-accused, Christopher Craig, who had fired the fatal shot, was too young to be sentenced to death and was detained at Her Majesty's pleasure. The conviction and execution of Bentley attracted immediate controversy, given doubts about his mental capacity, his alleged use of the ambiguous words "let him have it" shortly before the shooting, and the widely held view that it was unjust to execute a defendant who had not himself fired the weapon. These concerns did not dissipate in the decades that followed and were kept alive by sustained public and campaigning interest.

Following Bentley's execution, his family mounted a prolonged campaign for a posthumous pardon. The royal prerogative of mercy is vested in the Crown and exercised on the advice of, and in practice by, the Home Secretary. A free pardon operates to remove all the legal consequences of a conviction; a conditional pardon modifies those consequences. Various Home Secretaries over the years declined to grant either form of pardon, consistently adopting the position that a pardon would only be appropriate where the recipient was morally or technically innocent of the offence for which he or she had been convicted.

In the early 1990s, Bentley's sister, Iris Bentley, applied to the then Home Secretary for a posthumous free pardon. The Home Secretary refused the application, adhering to the established departmental policy that pardons were reserved for cases in which moral or technical innocence could be demonstrated. He acknowledged that there might have been aspects of Bentley's case which were troubling, but maintained that the appropriate scope of the prerogative of mercy did not extend to a broader exercise of compassion or to addressing what might be characterised as a denial of justice falling short of actual innocence.

The family sought judicial review of the Home Secretary's decision in the Divisional Court. The principal challenge was that in confining the exercise of the prerogative of mercy to cases of innocence, the Home Secretary had adopted an unlawfully narrow policy which fettered his discretion and misconstrued the legal scope of the power. The family argued that the prerogative of mercy is a broader and more flexible power than the Home Secretary had recognised, capable of being exercised on grounds of compassion, justice, or where the circumstances of the original conviction render the continued legal consequences unconscionable.

The case therefore raised fundamental questions about the extent to which the courts can supervise the exercise of prerogative powers, and in particular whether the prerogative of mercy — one of the oldest and most personal of executive powers — falls within the reach of judicial review. These questions were considered by the Divisional Court in 1993, with the judgment reported at [1994] QB 349.

The first and threshold issue was whether the exercise of the royal prerogative of mercy is amenable to judicial review at all. This required the court to consider the principles governing the reviewability of prerogative powers following the landmark decision of the House of Lords in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (the GCHQ case), and to determine whether the subject matter of the prerogative of mercy is of a nature susceptible to judicial supervision.

The second issue, contingent upon an affirmative answer to the first, was whether the Home Secretary had acted unlawfully in the exercise of that discretion. Specifically, the court was required to determine whether the Home Secretary had fettered his discretion by adopting a policy which limited the prerogative to cases of innocence, thereby failing to give proper effect to the full legal scope of a power that is capable of being exercised on wider grounds including compassion and the interests of justice.

A subsidiary issue concerned the nature of any available remedy. Since the court plainly could not compel the Crown to exercise the prerogative of mercy in any particular way — the grant of a pardon being a matter of grace rather than legal entitlement — the question arose whether declaratory relief would be both appropriate and constitutionally coherent as a means of expressing the court's conclusion without trespassing upon the executive's legitimate sphere of decision-making.

The Divisional Court began its analysis with the threshold question of justiciability. The court drew upon the authoritative guidance of the House of Lords in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, in which it had been held that the mere fact that a power derives from the prerogative rather than statute does not of itself place that power beyond judicial review. In the GCHQ case, their Lordships held that the critical determinant of reviewability is not the source of the power but its subject matter and the nature of the interests engaged. Certain prerogative powers — such as the grant of honours, the dissolution of Parliament, and the conduct of foreign affairs — are not amenable to judicial review because their subject matter is inherently non-justiciable. Others, however, may be reviewed if they affect the rights or legitimate expectations of individuals and involve the application of principles that the courts are competent to evaluate.

The court also considered R v Criminal Injuries Compensation Board ex parte Lain [1967] 2 QB 864, in which the Court of Appeal had held that the Criminal Injuries Compensation Board, a body established under prerogative rather than statutory authority, was amenable to certiorari. That decision had been significant in demonstrating that the source of a public body's authority in the prerogative was no bar to judicial supervision, and it reinforced the trajectory of the law towards a subject-matter-based approach to justiciability.

Applying these principles, the Divisional Court held that the prerogative of mercy is, in principle, amenable to judicial review. The court acknowledged that the actual decision whether to grant a pardon in any given case is a matter of executive grace and discretion which the courts will not second-guess on its merits. The Crown cannot be compelled to pardon any individual, and the courts will not substitute their own assessment of the merits of a case for that of the Home Secretary. Nevertheless, this does not mean that the prerogative of mercy is entirely immune from legal scrutiny. Where the Home Secretary misdirects himself as to the nature or scope of the discretion he is exercising, or where he applies principles which are wrong in law, that misdirection is itself a legal error capable of correction by way of judicial review.

The court drew a conceptually important distinction between, on the one hand, supervising the legal framework within which the discretion is exercised and, on the other, usurping the executive's role in deciding how that discretion should be exercised on the facts. Judicial review is concerned with the former, not the latter. The courts are competent to determine whether the Home Secretary has correctly understood the legal scope of the prerogative he is administering; they are not competent — and would be constitutionally improper in attempting — to direct him to exercise it in a particular way.

Turning to the substance of the challenge, the court examined the nature and historical scope of the prerogative of mercy. The prerogative of mercy is one of the oldest powers of the Crown, rooted in the sovereign's ability to show grace and clemency to those who have been convicted of criminal offences. The court found that as a matter of constitutional history and principle, the prerogative is not confined to cases of legal or moral innocence. It is a broad and flexible power which may be exercised in a variety of circumstances, including where there are compassionate grounds for remitting a sentence or its consequences, where changed circumstances or new evidence cast doubt upon the justice of a conviction, or where the manner in which justice was administered in the original proceedings was unsatisfactory even if it did not give rise to a successful appeal.

Watkins LJ held that the Home Secretary had adopted an unduly restrictive interpretation of the prerogative by confining its exercise to cases of innocence. This was an error of law because it conflated the question of factual guilt or innocence with the separate and broader question of whether, in all the circumstances, it was just and appropriate to remove the legal consequences of the conviction. The court found that the policy as articulated by the Home Secretary did not adequately reflect the true legal character of the prerogative of mercy, and that by applying that policy, the Home Secretary had in effect fettered his own discretion in a manner not authorised by law.

The court also noted the particular features of Bentley's case which made the application of an innocence-only policy especially problematic. Bentley had not fired the fatal shot; the question of his precise legal responsibility under the doctrine of joint enterprise and the directions given to the jury had been a matter of sustained controversy; his mental capacity had been recognised as limited; and he had been executed while his co-accused, who had actually fired the weapon, survived. The court did not purport to decide whether these features warranted a pardon — that remained a matter for the Home Secretary — but their existence illustrated why the full breadth of the prerogative needed to be engaged rather than a narrowed version of it.

The court was careful to emphasise the limits of its intervention. It did not hold that the Home Secretary was obliged to grant a pardon, nor did it direct him to reach any particular conclusion upon reconsideration. The sole basis of the court's intervention was that the Home Secretary had misdirected himself as to the scope of the power he was exercising, and that this misdirection had infected the decision-making process. Upon a proper understanding of the prerogative of mercy, the Home Secretary was required to consider whether the circumstances of Bentley's case — including compassionate and justice-related factors which fell short of a finding of innocence — warranted the grant of some form of pardon.

On the question of remedy, the court held that declaratory relief was both available and appropriate. Since no order of mandamus (or mandatory order in modern terminology) could be granted compelling the exercise of the prerogative in a particular direction, a declaration that the Home Secretary had failed to give effect to the true scope of the prerogative was the proper vehicle through which to express the court's conclusion. A declaration is a flexible and constitutionally sensitive remedy precisely because it states the legal position without coercing the executive, and it was well suited to the constitutional delicacy of the relationship between the courts and the Crown in the context of the prerogative of mercy.

The court observed, by way of obiter commentary, that had it been in a position itself to exercise the prerogative of mercy — which of course it was not — it might have been minded to do so in Bentley's case, given the troubling circumstances surrounding his conviction and execution. This observation underscored the court's view that the case was one which richly deserved full and properly directed consideration under the true scope of the prerogative, rather than summary rejection under a policy confined to innocence. The observation was, however, strictly obiter and carried no binding force.

The Divisional Court held that the prerogative of mercy is amenable to judicial review where the decision-maker has misdirected himself as to the legal scope of the power or has applied wrong principles in its exercise. The fact that the power derives from the prerogative rather than statute, and the fact that the courts cannot compel the grant of a pardon, do not preclude judicial supervision of the legal framework within which the discretion is exercised.

On the facts, the Divisional Court granted a declaration that the Home Secretary had failed to recognise the full scope of the prerogative of mercy. By adopting a policy which confined pardons to cases of moral or technical innocence, the Home Secretary had applied an unduly narrow interpretation of a power which is in truth capable of exercise on compassionate grounds and in the interests of justice more broadly, independently of any finding of innocence.

The court did not order the grant of a pardon, nor did it direct the Home Secretary to reach any particular outcome. The effect of the declaration was to require the Home Secretary to reconsider the application upon a proper understanding of the true scope of the prerogative, taking into account all relevant grounds upon which clemency might properly be exercised. The matter was remitted to the executive for that purpose.

The Bentley case occupies an important place in the development of public law doctrine concerning the justiciability of prerogative powers. Building upon the GCHQ case, the Divisional Court confirmed and applied the principle that the source of a power in the prerogative is not determinative of its amenability to judicial review. The relevant criterion is whether the subject matter of the power and the nature of the interests at stake are of a kind that the courts are capable of evaluating by reference to legal principles. The prerogative of mercy, despite its ancient constitutional pedigree and its intimate connection with executive grace, was held to satisfy that criterion, at least to the extent of permitting the courts to review whether the Home Secretary had correctly understood the legal scope of the power.

The case is also significant for its treatment of the fetter on discretion doctrine in the context of prerogative powers. While the rule against fettering discretion by rigid policy is most commonly encountered in the statutory context, the Bentley case demonstrates that it applies with equal force where a decision-maker exercises a prerogative power. A Home Secretary who confines the prerogative of mercy to an unduly narrow category of cases — in a manner inconsistent with the true legal scope of that power — commits a public law error no less than a statutory body that refuses to consider applications falling within the terms of its enabling legislation.

Following the declaration, the matter was reconsidered by the Home Secretary, and in July 1993 a partial posthumous pardon was granted to