At law a pardon is—or should be—about the state forgiving a person for their crime, just as you would say “beg my pardon” for some non-legal transgression. As Samuel Johnson defined it, a pardon is about forgiveness of an offender and forgiveness of their crime.
The conviction stands. A pardon does not deny that a person has committed a crime, but it relieves them of the sanctions that would otherwise be imposed. As such pardons are more about mercy than about justice. The conviction serves justice, but a pardon may serve mercy.
Pardons are rare in England, though there seems to be a keen trade in them in the United States. It would seem that pardons were widely used in Northern Ireland during the Troubles, but detailed information about these grants is not publicly available. Presumably, they were a useful device for the state in conveniently determining what actions would lead to criminal punishments.
Pardons are part of the royal prerogative but, unlike other prerogative powers exercised by ministers on behalf of the Crown, they are generally outside the scope of judicial review. The High Court would not easily intervene in a decision to grant a pardon or not grant one. As the court said in 1993 when considering an attempt to secure a posthumous pardon for Derek Bentley, it has “no power to direct the way in which the prerogative of mercy should be exercised”, though the court may tell the government that there should be regard to certain considerations and recommend one is granted.
On the face of it, posthumous pardons make little sense, because there is no offender to benefit from the relief from sanctions. But in that 1993 case, the courts said that the prerogative of mercy is “now a constitutional safeguard against mistakes. It follows, therefore, that, in our view, there is no objection in principle to the grant of a posthumous conditional pardon where a death sentence has already been carried out. The grant of such a pardon is a recognition by the state that a mistake was made and that a reprieve should have been granted.”
And there have subsequently been several posthumous pardons: Bentley himself, those soldiers executed in the First World War for desertion or cowardice, Alan Turing in respect of the then homosexuality offence, and now there is the case of Ruth Ellis. All these pardons were for mistakes. Few sensible people would say that the state did the right thing when it punished these individuals and, apart from Turing, put them to death.
What is less clear, however, is the exact nature of the “mistake”. Each of these cases were under the applicable laws of the time. The “mistake” is less about the fact of a prosecution, but that the laws themselves were cruel and unjust. It was not so much that the courts made errors of law and evidence, but that the very laws themselves were mistaken.
And so the “forgiveness” the state is trying to offer here is not so much about the wronged offenders. The state is trying to forgive itself, for the mistakes in the laws themselves. The state does not want to look at what it did unflinchingly, it wants to pardon itself as much as pardon the offenders. Posthumous pardons, by definition, have no practical effect, though they may offer comfort to the families of those wrongly punished. They are symbolic: it is the state begging its own pardon.
What the state should also be doing is actively considering pardons for those who can actually take the benefit of this mercy: the living. But the state is reluctant to admit to mistakes when those affected may still be alive.
In the case of Steve Gallant, a prisoner who risked his life to protect others during a terror attack, the media has been quick to frame the pardon as controversial to those who were victims of the offender. One can see why ministers are reluctant to get involved. It is much safer to grant posthumous ones.
But the ultimate question is whether mercy is something that can be granted to the living as well as to the dead, that a person still alive can be released from their punishment. Pardons should not be just for cases from the history books.
