Royal prerogative of mercy

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In the English and British tradition, the royal prerogative of mercy is one of the historic royal prerogatives of the British monarch, in which he or she can grant pardons (informally known as a royal pardon) to convicted persons. The royal prerogative of mercy was originally used to permit the monarch to withdraw, or provide alternatives to death sentences; the alternative of penal transportation to "partes abroade" has been used since at least 1617.[1] It is now used to change any sentence or penalty.[2] A royal pardon does not itself overturn a conviction.

Officially, this is a power of the monarch. Formally, in Commonwealth realms, this has been delegated to the Governor-General of the realm, which in practice means to government ministers who advise the monarch or viceroy, usually those responsible for justice. Specifically, it has been delegated to the Lord Chancellor in England and Wales; the Scottish Ministers in Scotland; and the federal cabinet in Canada.[3]

In Australia, the Governor-General acts on the advice of the Attorney-General or Minister for Justice, and may only exercise the prerogative of mercy in relation to a federal offender convicted of a Commonwealth offence. The pardon may be a full pardon (said to be a free, absolute and unconditional pardon), a conditional pardon, a remission or partial remission of a penalty, or the ordering of an inquiry. Each state and territory (apart from the Australian Capital Territory, which only provides for an inquiry) has also enacted legislation providing for the reconsideration of convictions or sentences.[4]

In New Zealand, the prerogative of mercy is exercised by the Governor-General as the Queen's representative. The Governor-General will act on the advice of the Minister of Justice, and has the power to grant a pardon, reduce a sentence, or refer a case back to the courts for reconsideration.[2]

In the important case of Derek Bentley, a court found that this royal prerogative power is "probably" entirely a matter of policy, and thus not justiciable.[5]

The royal pardon can be contrasted with the statutory pardon, which is a pardon issued through an Act of Parliament or an Order-in-Council. The statutory pardon is preferred in most cases.

Examples[edit]

In 2001 two inmates at HMP Prescoed, south Wales, received early release under the Royal prerogative of mercy when they saved the life of the manager of the prison farm when he was attacked and gored by a captive wild boar.[6]

In 2013 a posthumous pardon was awarded to Alan Turing under the Royal prerogative of mercy. Wartime codebreaker Turing had been convicted of gross indecency in 1952.[7]

See also[edit]

References[edit]

  1. ^ Acts of the Privy Council of England, Colonial Series, Vol. I, 1613-1680, p.12. (1908)
  2. ^ a b "The Governor-General - The Royal Prerogative of Mercy". Te Kawana Tianara o Aotearoa. Retrieved 17 June 2013. 
  3. ^ "Royal Prerogative of Mercy - Fact Sheet". Parole Board of Canada. 4 November 2008. 
  4. ^ "Royal Prerogative of Mercy and statutory referrals". Attorney General's Department. Retrieved 5 June 2018. 
  5. ^ Magrath, Paul (8 July 1993). "Law Report: Court recommends Bentley pardon: Regina v Secretary of State for the Home Department, ex parte Bentley - Queen's Bench Divisional Court (Lord Justice Watkins, Lord Justice Neill and Mr Justice Tuckey)". The Independent. London. Retrieved 24 December 2013. 
  6. ^ [1]
  7. ^ [2]