Eh? What are you talking about?
It was a news story that caught our eye. Apparently, ‘the real Sheriff of Nottingham (Cllr. Ian Malcolm) has not only pardoned Nottingham’s Official Robin Hood for all of his outlawry but actually appointed him official Under-Sheriff of Nottingham’. Which is nice for him.
How does this work?
It is perhaps a bit of a surprise. Not least because Robin Hood is either a fictional character or long dead, he had never been convicted of anything, and it’s not clear that a Sheriff has any power to pardon anyone.
What does a pardon do?
A pardon ‘removes from the subject of the pardon all pain, penalties and punishments ensuing from the conviction but does not eliminate the conviction itself’ (R v Foster  QB 115). This means that they will be freed from prison or whatever sentence they are serving, but the conviction is still there. So, if someone is pardoned for a drink drive offence, and is convicted of another one within 10 years, they will be liable to the ‘enhanced’ 3 year minimum ban rather than the ‘usual’ 12 month one.
So, whilst he is not at being sent to prison, Robin Hood’s acts are still technically viewed as criminal.
Can people still be pardoned? Isn’t that what the Court of Appeal is for?
There is no doubt that the ‘prerogative of mercy’ – the ability to issue a pardon, still exists. It is used a lot less nowadays than before.
It is hard to get exact figures as to who has been pardoned in the last 30 years and why. In 1985 (see the case of Foster above, sadly not online) it was stated that in the 10 years after 1973 there were 2,296 pardons issued. This seems very high (after all, you don’t hear of it very often) but all but 12 were issued for people not in prison. Almost all of these were for road traffic offences (it seems that this was a course of action where something had gone wrong with a breathalyser for example).
Michael Howard had a slightly awkward moment after he authorised the pardoning (11 months into an 18 year sentence) of two gangsters due to information that they had supplied the authorities. It turned out that the two may not have been entirely honest in their dealings with the Home Secretary (and were later jailed for further offences, some relating to this). Mr Howards cousin was an associate of them.
But it is fair to say that they are very rare in serious offences. They are getting all the more so now that the Criminal Cases Review Commission has a statutory authority to refer convictions that may be unsafe to the Court of Appeal.
We have commented previously on the injustice that can be caused by the mandatory sentencing regime. As far as we are aware there have not been (m)any applications for a pardon in these sorts of cases, but we would suggest that some of those people may be able to apply. It may not get anywhere, but would be interesting to see.
Who can issue a pardon?
The Queen. But the Queen tends to be busy nowadays opening hospitals and the like, so she’s delegated the power to the Home Secretary (and Theresa has probably passed this on to Chris Grayling at the Ministry of Justice). In Scotland, whilst it is in theory done from Westminster, it’s probably now the sole responsibility of the First Minister (likewise in Wales and Northern Ireland).
It is clear that the King had a power to pardon at the time that Robin Hood was strutting around Sherwood Forest (in 1249, a four-year-old child, Katherine Passcavant, was imprisoned and not executed: in opening a door she had accidentally pushed a younger child into a vessel of hot water with fatal results’ which is an early example of a partial pardon)
Nowadays (and since 1st July 1536 in fact) it is only the Queen who can pardon someone. Henry VIII, like the politicians of today, didn’t like the idea of anyone other than him having power. So in between criminalising the theft of Hawks eggs and increasing the ‘Punishment of Welshmen attempting any Assaults or Affrays upon any the Inhabitants of Hereford, Gloucester and Shropshire’ he got Parliament to pass the Jurisdiction in Liberties Act 1535, ensuring “that no person or persons, of what estate or degree … shall have any power or authority to pardon or remit any treasons, murders, manslaughters or any kind of felonies, whatsoever they may be [other than the king]”.
This act of Parliament is applicable to any ‘pardonings’ thereafter, so the Sheriff of Nottingham has no power in 2013 to pardon anyone for anything.
Can you pardon someone who is dead?
Definitely. 306 soldiers executed for ‘cowardice’ offences in the first world war were pardoned by an Act of Parliament (s359 Armed Forces Act 2006). The exact legal status of this is unclear as it specifically states that it is separate to the prerogative of mercy and is stated not to ‘affect any conviction or sentence’.
There are other examples – Timothy Evans who was pardoned in 1966, sixteen years after he was executed for murder, when it was clear that he was innocent and Derek Bentley who was conditionally pardoned in 1993 (relating to the sentence of death only). In 1998 his conviction was overturned posthumously by the Court of Appeal. That judgment is a good one to read if you want more information on the history of this area of law.
Aren’t you taking this a bit seriously – it’s just a PR stunt?
Well yes. But it’s a good way to talk briefly about this comparatively unusual area of law. It’s also something that may be in the news next month with the sentencing of ‘Marine A’. He will get a life sentence – expect calls for a Royal Pardon shortly afterwards…