R v Secretary of State for the Home Department, ex parte Bentley  4 All 442
WATKINS LJ: Iris Pamela Bentley, the applicant for judicial review, has been campaigning for almost 40 years to obtain recognition of what she and many other people regard as a gross miscarriage of justice in the case of her brother, Derek Bentley. She wants that recognition to take the form of a posthumous free pardon for him. That, Mr Kenneth Clarke, the Secretary of State for the Home Department (the Home Secretary), by a decision which was announced on 1 October 1992, declined to recommend.
That is the decision which we have been asked by the applicant to review. The relief which she seeks, and for which she has the leave of this court to apply, is a declaration that the Home Secretary erred in law in declining to recommend a posthumous free pardon for Derek Bentley and mandamus to require the Home Secretary to reconsider the matter. Bentley, then 19 years of age, was convicted, together with Christopher Craig, at the Central Criminal Court on 11 December 1952 before Lord Goddard CJ, of the murder of Pc Sidney George Miles at Croydon on 2 November 1952. He was sentenced to death. The jury added a recommendation for mercy. An appeal by Bentley against conviction was dismissed by the Court of Criminal Appeal on 13 January 1953. Craig was also found guilty of murder, but being only 16 years of age, he could not be sentenced to death. He was ordered to be detained during Her Majesty's pleasure.
It had been alleged by the Crown that during the evening of 2 November 1952 a married woman saw Bentley and Craig climbing over a gate at the side of a confectionery warehouse in West Croydon. She informed the police. Det Con Fairfax, accompanied by Pc Harrison and two other officers, came to the scene at about the same time as a wireless car in which were Pc Miles and Pc McDonald.
Det Con Fairfax, on being told that Bentley and Craig had climbed up on to the roof of the warehouse via a drainpipe, did likewise. He saw Bentley and Craig almost immediately. He walked towards them. They backed away and went behind a brickstack. Det Con Fairfax, when about six feet away, shouted out: 'I am a police officer. Come out from behind that stack.' Craig shouted back that if he wanted them he would have to come and get them. Det Con Fairfax then rushed behind the stack and seized hold of Bentley. He pulled Bentley round the stack with a view to closing in on Craig, at which point Bentley broke away and shouted: 'Let him have it, Chris.' There was then a flash and a loud report. A bullet hit Det Con Fairfax on his right shoulder, making him spin round and fall to the ground. He got up and again seized hold of Bentley and knocked him down with his fist. There was then a second shot and Det Con Fairfax pulled Bentley up in front of him as a shield and pulled him behind a large skylight where he held him down and felt over his clothing to see if he was carrying a gun. Det Con Fairfax did not find a gun but found a knuckleduster and a knife. Bentley said: 'That's all I've got, guv'nor. I haven't got a gun.' Det Con Fairfax then told Bentley that he was going to work him round the roof to the door of a fire escape, and Bentley said: 'He'll shoot you.' Det Con Fairfax then worked him round until they were both sheltered behind the staircase head. Det Con Fairfax shouted to Craig to drop his gun, and Craig replied: 'Come and get it.'
Meanwhile, Pc Miles and others reached the roof by another route. Pc Miles confronted Craig, who shot at him, hitting him between the eyes. Pc Miles dropped dead.
The day after Bentley was convicted Lord Goddard CJ wrote to the then Home Secretary, Sir David Maxwell Fyfe, and stated:
'In Craig's case the defence endeavoured to obtain a verdict of manslaughter. Had the jury returned such a verdict I should have passed a sentence of detention for 15 years as I am convinced that he is a most dangerous young criminal ... In Bentley's case the jury added a recommendation to mercy. I have no doubt the reason for their recommendation was that they realised that a capital sentence could not be passed on Craig whom they probably regarded as the worst of the two. So far as merits were concerned, I regret to say I could find no mitigating circumstances in Bentley's case. He was armed with a knuckle-duster of the most formidable type that I have ever seen and also with a sharp pointed knife and he called out to Craig when he was arrested to start the shooting.'
On 16 January 1953 Mr Philip Allen, later Lord Allen, wrote a Home Office memorandum in which he advised that effect be given to the jury's recommendation for mercy. His advice rested-
'principally on the ground, which has been held to be valid in previous cases, that it would not seem right to exact the extreme penalty from the accomplice when the principal offender is escaping with his life.'
There was reference in the memorandum to Bentley's mental state and to it being 'just above the level of a feebleminded person'. That memorandum was indorsed with comments from Sir Frank Newsam, the Permanent Under-Secretary, who also advised against the execution of Bentley. Nevertheless, Sir David Maxwell Fyfe, for reasons which he set out in a memorandum of his own, decided that the law should take its course.
In that memorandum he stated:
'It was a very bad murder, involving the death of a police officer, committed at a time when there is much public anxiety about numbers of crimes of violence. Many of these crimes of violence are committed by young persons and I must pay regard to the deterrent effect which the carrying out of the sentence in this case would be likely to have. If Craig had been of an age when he could have been executed, the sentence would have been carried out in his case and there would have been no grounds for interfering with the sentence against Bentley. It would be dangerous to give the impression that an older adolescent could escape the full penalty by using an accomplice of less than 18 years of age. I feel also that it is important to protect the unarmed police.'
Bentley was hanged on 28 January 1953. The Home Secretary, in announcing the decision now complained of, stated, inter alia:
'I have concluded that nothing has emerged from my review of this case which establishes Derek Bentley's innocence and that I therefore have no grounds for recommending a Free Pardon ... In my judgement most of the concern that has arisen about this case reflects strong feelings that Derek Bentley should not have been hanged. Personally I have always agreed with that concern but I cannot now simply substitute my judgement for that of the then Home Secretary, Sir David Maxwell Fyfe ... It has been the long established policy of successive Home Secretaries that a Free Pardon in relation to a conviction for an indictable offence should be granted only if the moral as well as technical innocence of the convicted person can be established. I do not believe that is the case on either point in relation to Derek Bentley.'
An accompanying memorandum from the Home Office emphasised that:
'Successive Home Secretaries have taken the view it would not be right to recommend the exercise of the Royal Prerogative for the grant of a Free Pardon in any particular case unless satisfied that the person concerned was both morally and technically innocent of any crime.'.....
Before the decision in the CCSU case it had been thought that the exercise of prerogative power was not susceptible to judicial review and so the earlier cases must be viewed with some caution. We have, however, been referred to a number of them including two which deal specifically with the prerogative of mercy. The first of these is Hanratty v Butler  CA Transcript 171, where the court had to consider whether to strike out a negligence claim against the Home Secretary for the way in which he had exercised the prerogative of mercy. Lord Denning MR said:
'These courts have had occasion in the past to cut down some of the prerogatives of the Crown: but they have never sought to encroach on the prerogative of mercy. It is not exercised by the Queen herself personally. It is exercised by her on the advice of one of the principal Secretaries of State. He advises her with the greatest conscience and good care. He takes full responsibility for the manner of its exercise. That being so, the law will not inquire into the manner in which the prerogative is exercised. It is outside the competence of the courts to call it into question: nor would they wish to do so.'
Salmon LJ said:
'As a matter of constitutional practice it is of course well known that the Crown acted upon the advice of the Home Secretary. But the prerogative was, and still would be the prerogative of the Crown alone. It is well established that the courts have no power to review the exercise by the Crown of its prerogative, providing the Crown is acting within the scope of its powers. Nor are the courts entitled to be informed of, let alone to pass any opinion upon, such advice as may have been given to the Crown.'
The second case is de Freitas v Benny  AC 239. In that case the appellant claimed he was entitled to have disclosed to him the material furnished to the minister to enable him to advise the Governor General of Trinidad and Tobago as to the exercise of the prerogative of mercy. In rejecting this claim Lord Diplock said (at 247):
'Except in so far as it may have been altered by the Constitution the legal nature of the exercise of the royal prerogative of mercy in Trinidad and Tobago remains the same as it was in England at common law. At common law this has always been a matter which lies solely in the discretion of the sovereign, who by constitutional convention exercises it in respect of England on the advice of the Home Secretary to whom Her Majesty delegates her discretion. Mercy is not the subject of legal rights. It begins where legal rights end. A convicted person has no legal right even to have his case considered by the Home Secretary in connection with the exercise of the prerogative of mercy. In tendering his advice to the sovereign the Home Secretary is doing something that is often cited as the exemplar of a purely discretionary act as contrasted with the exercise of a quasi-judicial function.'
There are no English cases dealing with the prerogative of mercy since 1985. We were referred to R v Secretary of State for Foreign and Commonwealth Affairs, ex p Everett  1 All ER 655,  QB 811 in which the Court of Appeal had to consider whether the decision to refuse the applicant a passport was reviewable. Taylor LJ said ( 1 All ER 655 at 660,  QB 811 at 820):
'I am in no doubt that the court has power to review the withdrawal or refusal to grant or renew a passport ... At the top of the scale of executive functions under the prerogative are matters of high policy, [such as] making treaties, making law, dissolving Parliament, mobilising the armed forces. Clearly those matters, and no doubt a number of others, are not justiciable. But the grant or refusal of a passport is in a quite different category. It is a matter of administrative decision, affecting the rights of individuals and their freedom of travel. It raises issues which are just as justiciable as, for example, the issues arising in immigration cases.'
We have also been referred to the New Zealand case of Burt v Governor General  3 NZLR 64; affd  3 NZLR 672. The plaintiff sought judicial review of the Governor-General's refusal to grant him a full pardon in the exercise of the prerogative of mercy. At first instance Greig J decided that the decision could not be reviewed. Having considered the effect of the CCSU case he concluded a detailed judgment by saying ( 3 NZLR 64 at 74): '... the prerogative of mercy ... is a unique extra-legal, extra-judicial and extraordinary power that cannot be subject to Court review.'
The Court of Appeal (Cooke P, Gault and McKay JJ) dismissed the appeal but in doing so it said ( 3 NZLR 672 at 678, 681):
'The prerogative of mercy is a prerogative power in the strictest sense of that term, for it is peculiar to the Crown and its exercise directly affects the rights of persons. On the other hand it would be inconsistent with the contemporary approach to say that, merely because it is a pure and strict prerogative power, its exercise or non-exercise must be immune from curial challenge. There is nothing heterodox in asserting, as counsel for the appellant do, that the rule of law requires that challenge shall be permitted in so far as issues arise of a kind with which the Courts are competent to deal ... In the end the issue must turn on weighing the competing considerations, a number of which we have stated. Probably it cannot be said that any one answer is necessarily right; it is more a matter of a value or conceptual judgment as to the place in the law and the effectiveness or otherwise of the prerogative of mercy at the present day. In attempting such a judgment it must be right to exclude any lingering thought that the prerogative of mercy is no more than an arbitrary monarchial right of grace and favour. As developed it has become an integral element in the criminal justice system, a constitutional safeguard against mistakes.'
It is clear from that judgment that the court would have been prepared to review the exercise of the prerogative of mercy if it felt that justice required it. It concluded however that this was not necessary in New Zealand 'at any rate at present'.
Finally we have been referred to a passage from Lewis Judicial Remedies in Public Law (1992) p 21:
'In principle, a failure to consider exercising the power to grant a pardon should be reviewable, at least if an individual can demonstrate that there is some reason why the Home Secretary should consider the case. It is also difficult to see why a decision to refuse a pardon should not also be reviewable in appropriate circumstances, for example, where the allegation is that there has been a failure to consider relevant material, or a failure to act in accordance with any relevant guidelines, or if there is an error of law as to the elements of the offence for which the pardon was sought.'
Mr Pannick [counsel for Ms Bentley] relies on this passage. He argues that the prerogative of mercy is exercised by the Home Secretary on behalf of us all. It is an important feature of our criminal justice system. It would be surprising and regrettable in our developed state of public law were the decision of the Home Secretary to be immune from legal challenge irrespective of the gravity of the legal errors which infected such a decision. Many types of decisions made by the Home Secretary do involve an element of policy (eg parole) but are subject to review.
We accept these arguments. The CCSU case made it clear that the powers of the court cannot be ousted merely by invoking the word 'prerogative'. The question is simply whether the nature and subject matter of the decision is amenable to the judicial process. Are the courts qualified to deal with the matter or does the decision involve such questions of policy that they should not intrude because they are ill-equipped to do so? Looked at in this way there must be cases in which the exercise of the royal prerogative is reviewable, in our judgment. If, for example, it was clear that the Home Secretary had refused to pardon someone solely on the grounds of their sex, race or religion, the courts would be expected to interfere and, in our judgment, would be entitled to do so.
We conclude therefore that some aspects of the exercise of the royal prerogative are amenable to the judicial process. We do not think that it is necessary for us to say more than this in the instant case. It will be for other courts to decide on a case by case basis whether the matter in question is reviewable or not.
We do not think that we are precluded from reaching this conclusion by authority. Lord Roskill's passing reference to the prerogative of mercy in the CCSU case was obiter. Hanratty and de Freitas were decided before the CCSU case and neither concerned judicial review of an error of law.
But is the exercise of the prerogative reviewable in the instant case? As originally framed, the applicant sought to attack the Home Secretary's application of long standing Home Office policy that a free pardon would not be granted unless he was satisfied that the person concerned was both morally and technically innocent of the crime. That disclosed an error of law, so it was argued, since it misunderstood the nature and effect of a free pardon. If that had remained the basis of the applicant's case we have considerable doubt as to whether the decision could have been reviewed on the basis contended for. We think that Mr Richards 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 is not justiciable.
However, as the argument before us developed, it became clear that the substance of the applicant's case was that the Home Secretary failed to recognise the fact that the prerogative of mercy is capable of being exercised in many different circumstances and over a wide range and therefore failed to consider the form of pardon which might be appropriate to meet the facts of the present case. Such a failure is, we think, reviewable.....
We return to the facts of the present case. We can well understand the decision of the Home Secretary in so far as it constituted a response to a free (or full) pardon. But we are far from satisfied that he gave sufficient consideration to his power to grant some other form of pardon which would be suitable to the circumstances of the particular case. It is true, as the Home Secretary pointed out in the announcement of his decision, that in 1953 the then Home Secretary was working in a different climate of opinion. But, as we have already underlined, the facts of this case are very striking. There is a compelling argument that even by the standards of 1953 the then Home Secretary's decision was clearly wrong.
In these circumstances the court, though it has no power to direct the way in which the prerogative of mercy should be exercised, has some role to play. The Home Secretary's decision was directed to the grant of a free pardon. In these circumstances we do not think it would be right to make any formal order nor is this an appropriate case for the grant of a declaration. Nevertheless, we would invite the Home Secretary to look at the matter again and to examine whether it would be just to exercise the prerogative of mercy in such a way as to give full recognition to the now generally accepted view that this young man should have been reprieved.
It was submitted to the court that even a limited form of pardon might lead to a flood of other applications seeking to reopen past convictions. No doubt account has to be taken of such a risk. From our examination of the papers in this case, however, and in the light of our understanding of the broad scope of the prerogative of mercy, we are satisfied that the matter is exceptional and requires further consideration. The decision is, of course, one for the Home Secretary and not for the court, but it seems to us that it should be possible to devise some formula which would amount to a clear acknowledgment that an injustice was done.....