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Joshua Rozenberg
Wednesday 9th September 2009
Shields Against Injustices

Jack Straw's reasons for recommending a free pardon for Michael Shields, the football fan convicted in Bulgaria of attempting to murder a barman, should be read with the High Court judgment delivered last December.

The High Court said that Graham Sankey was among the fans arrested for the attack. Mr Sankey was released without charge.

As the High Court said:

Graham Sankey returned to England.  He later went to his own solicitor and eventually made a signed confession indicating that he, not Michael Shields, had been the assailant.  This confession had not been available at Michael Shields' trial.  It was, however, available to and considered by the Varna Appeal Court, and subsequently by the Supreme Court of Cassation.  It appears to have been rejected on grounds, analogous with one or more of those in section 23 of the Criminal Appeal Act 1968, that it would not have afforded grounds for allowing an appeal.

In addition to Sankey's signed confession which the Bulgarian Appeal Courts did have and consider, we are told that there is a significant amount of additional circumstantial evidence which may support Michael Shields' case that he is innocent of the offence of which he was convicted in Bulgaria.  Some of this material has not been judicially considered in Bulgaria, a further application for review of the conviction to the prosecutor's office, that is to the executive, having been refused.

The High Court also said:

We consider that the Secretary of State does have a power under Article 12 of the Convention to consider at least granting pardon to Michael Shields on the facts presented to this court...  We are told that there is fresh evidence, which has not been considered by the Bulgarian Courts, in part because the Bulgarian prosecuting authorities (the executive) decided not to take the matter further.

It should be said that the fresh evidence here does not apparently include Graham Sankey's confession, because that has been considered by Bulgarian appeal courts.  It is, in our judgment, open to the Secretary of State to entertain a request to exercise the Royal Prerogative.  It is not for this court to say whether or how it might be exercised.

In principle, however, the grant of a free pardon would appear to require a conclusion that, taking the Bulgarian courts' judgment for what it is and without calling in question its correctness on the material which those courts considered, fresh evidence which the Bulgarian courts did not consider, taken with the material which they did consider and their judgment upon it, justifies a conclusion that Michael Shields is morally and technically innocent.

In other words, Mr Straw could recommend a pardon - but only if fresh evidence came to light that did not include Sankey's signed confession.

The Justice Secretary's eureka moment came on August 28, when he met Michael Shields's parents. That was when "important new evidence came to light" that satisfied Mr Straw that the case had met the test set by the High Court.

The Justice Secretary takes up the story:

At this meeting, following a series of questions which I put to the family, I was told for the first time about a visit by two members of the Shields family to the home of a man alleged to be responsible for the crime for which Michael Shields was jailed. I was told that in the course of the visit that man made an oral confession to the crime in front of several other people. This episode, I was told, happened on 22 July 2005, a day after the start of Mr Shields' trial in Bulgaria.

Since the 28 August meeting in my constituency further inquiries, including by the Merseyside Police, have been made at my request into the events of 22 July 2005. I will not set out in this statement all the evidence that has come to light over the last two weeks but suffice it to say that there is very good reason to believe I was being told the truth. This in my view profoundly changed the credibility of the various accounts of what actually happened in this case.

Whether or not this new evidence would have been admissible at Mr Shields' trial in Bulgaria, it is highly relevant to my consideration of Mr Shields' application for a pardon.

So Mr Straw had the evidence he was looking for. He explained that:

no reference to the events which took place on 22 July 2005 was contained in any of the formal written representations I received either before or after I made my provisional decision on 2 July. Mr Shields' current solicitors have told us that they did not know about them, and their potential significance had not been fully appreciated by those who had been made aware of them. 

The significance, it seems to me, is that this was, as the High Court put it, "fresh evidence which the Bulgarian courts did not consider [that], taken with the material which they did consider and their judgment upon it, justifies a conclusion that Michael Shields is morally and technically innocent".

The effect of a pardon is to remove a penalty but not to quash a conviction.

As the High Court explained:

A pardon is a common law extra-judicial power exercised by the Crown under the Royal Prerogative of Mercy.  It is exercised by the Secretary of State for Justice as the Minister responsible for those in detention...

In R v Foster, it was held that the effect of a free pardon was to remove from the subject of the pardon "all pains, penalties and punishments whatsoever that from the said conviction may ensue", but not to eliminate the conviction itself.  Lord Justice Watkins said ... that counsel

has reminded us that constitutionally the Crown no longer has a prerogative of justice, but only a prerogative of mercy.  It cannot, therefore, he submits, remove a conviction but only pardon its effects.  The Court of Appeal (Criminal Division) is the only body which has statutory power to quash a conviction.  With that we entirely agree.

Mr Straw was clearly uncomfortable about "the appropriateness or otherwise of the Justice Secretary, rather than a court, exercising this power over a prisoner's liberty involving finding of fact in an alleged miscarriages of justice, particularly in relation to cases from abroad".

"Even with expert advice," he continued, "a quasi-judicial role such as this is not a suitable function for the Executive."

Mr Straw said he would "therefore be exploring alternative options for dealing with any future cases which arise".

But the shadow justice secretary, Dominic Grieve, said:

We would take some convincing that the power of pardon or clemency should be removed from the Justice Secretary and given to the courts. Ultimately, these are predominantly moral and political rather than judicial decisions. As we have seen in this case, and that of Megrahi [the Lockerbie bomber], the Government needs to be accountable to Parliament and the public for such decisions

 Watch this space.

 
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About Joshua Rozenberg

Joshua Rozenberg is an independent legal commentator who presents Law in Action on BBC Radio 4.

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