A Straw Pardon?

Michael Shields, a 22-year-old football fan serving 10 years in prison for the attempted murder of a Bulgarian waiter in 2005, was told today that he is unlikely to receive a free pardon – despite his claims of innocence.

A pardon is a power exercised by the Crown under the Royal Prerogative of Mercy. It is a common-law power, which means it was established by the courts rather than by Parliament. It is extra-judicial, which means it is exercised on the recommendation of the Secretary of State rather than by a court.

Shields was convicted in Bulgaria but allowed to serve the remainder of his sentence in Britain under a prisoner transfer agreement.

There was some doubt over whether a pardon could be granted to someone transferred in this way. Last December, the High Court decided, perfectly sensibly, that it could.

Jack Straw, the Justice Secretary, then had to consider whether it should. Today, he announced, provisionally, that Shields should not be pardoned.

His spokesman said:

“Mr Straw has made his decision in accordance with the High Court judgment of December 17 2008 which indicated that, in order to grant a free pardon, he would have to be satisfied that Mr Shields was morally and technically innocent.

“The judgment stated: ‘In principle … 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’.

“This is a very high test and the Justice Secretary has provisionally concluded that on the evidence he currently has, that test is not met.”

Since Mr Straw’s spokesman did not suggest otherwise, people seem to have thought that the “morally and technically innocent” test was something laid down by the High Court for the first time last year. It was not.

The judgment refers to a case from 1984 in which Lord Justice Watkins VC said “…a grant of a free pardon should be reserved for cases where it can be established that the convicted person was morally and technically innocent.  Furthermore, the policy of confining the grant of a free pardon to such cases has been followed by successive Secretaries of State for over a century.”

That approach was accepted by the High Court last year without further argument. “Morally and technically innocent” goes back a long way.

What does it mean? Presumably that the court is sure the defendant didn’t do it – not just that he should never have been convicted.

The good news for Shields is that he will be considered for release in less than a year’s time, after he has served half his sentence.

But Steven Willcox, 45, will have rather longer to serve. He was arrested in Thailand in 2003 on drugs charges and is now serving a sentence of 29 years and three months. He, too, is serving his sentence in Britain. But he won’t be considered for release until 2017.

Willcox complained that his sentence – much longer than he would have received in Britain for a similar offence – was a breach of his human rights. This week, his case was dismissed by the High Court.

The court’s decision was neatly summed up by Mr Justice Davis:

To the extent that it remains the case that Mr Willcox remains subject to enforcement of a prison sentence of vastly greater length than ever could have been contemplated by a Crown Court in England and Wales, that is no doubt a hard result for him.  But the short answer in my view is that he has been repatriated with his consent under the prisoner transfer agreement and the terms of the prisoner transfer agreement are to be respected:  not abandoned.  Mr Willcox, an adult, knew what he was doing and chose to commit an offence relating to drugs whilst living in Thailand and subject to Thai law.  He must bear the consequences of the due enforcement of that law.

A broader moral can be drawn from these two cases. Prisoners convicted abroad are returned to Britain on the understanding that they will serve the sentences they receive, not the sentences they might have received in Britain. If our courts or ministers started setting these sentences aside on a regular basis, these agreements would collapse and prisoners – both British and foreign – would be worse off.

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