Days to Centenary: 196

Brief aside: It has been a week since my last post. Regulars to this blog will know from the About This Blog page that apart from all the obvious reasons to create this page at this particular time, I also created it because it relates to my upcoming novel, Luck and Death at the Edge of the World. But I also have two newer blogs arising out of Luck and Death (Homo Artificialis and Once and Future Mexico), as well as a new blog about books and writing (Nassau Hedron, which now includes a free downloadable ebook of one of my published stories), all of which required some attention recently to get them up and running. And quite apart from that, my last post Turing As A Gay Icon, had built up some momentum, continuing to receive a lot of hits, so it seemed like a good moment to tend briefly to other matters. But now, back to Turing!

In the interregnum since I last posted here, the petition to pardon Turing has taken off like a rocket.

The number of signatures it’s received is staggering and continues to grow, and the number of news reports it’s generated has been impressive, raning from perennial favourite Boing Boing to Forbes to the Dallas Voice to, well, Euroasia Semiconductor.

If you search for “Turing” on the popular social news site Reddit, where you would normally see a variety of references to Turing machines, mathematical papers, and so forth, you now get something like the image below.

By and large the reaction to it has been overwhelming support, but one person who does not support it is, surprisingly, John Graham-Cumming, the programmer who spearheaded the similar, very successful campaign to obtain a government apology for Turing.

I say “surprisingly” because I think many people would simply assume that the creator of the first campaign would necessarily support the latter, but Graham-Cumming’s lack of support is a well-reasoned thing based in principle, and he takes the position he does despite his very strong commitment to the position that the law under which Turing was convicted ought never to have existed.

With great respect, I disagree with Mr. Graham-Cumming. Now, “with great respect” is one of those phrases that is often said casually, or even snidely, but which I mean — at least in this case — literally and sincerely. Out of that respect, I want to address his concerns and explain why I think that in the end they don’t amount to a reason not to support the pardon campaign.

He lists three grounds to view the pardon campaign as a mistake. I will try to summarize them without doing violence to them:

because the conviction was legally sound, a pardon is inappropriate (Turing inarguably engaged in the conduct that founded it, there was no issue with the process of his conviction, and so on)

it is illogical and unprincipled to pardon Turing while not doing the same for the many other people who were convicted under the same law for behaviour that, like Turing’s, we would view today as entirely innocent, indeed hardly justifying attention or comment, and

a pardon is unncessary because a measure about to be passed into law allows for people convicted of this particular offence to have their conviction “disregarded”

First, Graham-Cumming is correct that the conviction was legally sound. Had Turing attempted at the time to appeal it, even the most favourable appellate court would have had to deny his appeal and allow the conviction to stand.

Graham-Cumming contrasts this with the situation of soldiers in the First World War who were convicted of cowardice or desertion in circumstances that — we know today — might well have resulted in many of them being acquitted if only courts at the time had had the understanding we now have of shell-shock and traumatic stress. A pardon was later issued to them based on that more modern understanding of their situation.

In other words, in the case of the soldiers and not in the case of Turing, our knowledge advanced, not just our attitudes, and it advanced in a way that could have affected the legal outcome of the soldiers’ trials.

But this distinction is no reason to withhold a pardon.

First of all, a pardon has traditionally been a matter of unfettered royal prerogative, and was therefore granted at Her Majesty’s complete discretion for any reason that Her Majesty deemed sufficient. In Canada (where I come from), for instance, this principle is enshrined in section 749 of the Criminal Code of Canada:

749. Nothing in this Act [the Criminal Code] in any manner limits or affects Her Majesty’s royal prerogative of mercy. R.S., 1985, c. C-46, s. 749; 1995, c. 22, s. 6.

In Montréal v. Quebec, 2008 SCC 48, [2008] 2 SCR 698 the Supreme Court of Canada endorsed the position that:

The primary aim of a pardon, granted under the Criminal Records Act (CRA) is the removal, as completely as possible, of the negative consequences of conviction once the offender has fulfilled the sentence and enough time has elapsed to establish, with some degree of certainty, law abiding behaviour.

There is no mention of any suspicion of injustice; it is not relevant to a pardon. (And as for the two criteria set out above, I would argue that the first one has been met and the second has been more than met through Turing’s death.)

Admittedly this is the Canadian Supreme Court, which I cite because, as I say, I’m most familiar with Canadian law — I leave it to readers in the UK who are barristers or solicitors to point out any differences in the law between the two countries, but I strongly suspect that there is no meaningful difference on the point I’m addressing.

In modern times the royal prerogative of mercy tends to be mediated by government ministers and agencies (I say “tends to be” because the process differs from country to country within the Commonwealth and other common law countries). Nonetheless, it is not primarily used to remedy wrongful convictions — that is the province of the appeal process.

With respect to Graham-Cumming’s second point — that there are many other people who were convicted under the same provision who are just as deserving of a pardon — I couldn’t agree more and he is not the only one to have raised the issue, I just don’t think it’s a reason to deny a pardon to Turing.

Yes, it may seem like a case of special pleading, but if getting a pardon for Turing helps to ameliorate our thinking on the issue of a pardon for others who were convicted in similar circumstances and to focus our attention upon the need for them to be pardoned, then it can do those people a service as well.

Pardoning Turing is not a complete or sufficient remedy for the problems created by an unjust law, now no longer on the books, but it is the beginning of one.

Finally, there is the Protection of Freedoms bill that will go to the House of Lords on December 13, 2011 — three days hence as I write this. While this bill is laudable in many respects, on the particular issue in question I think it is distinctly wanting and should not be allowed to become an excuse to forego the granting of a pardon to Turing or anyone else.

Even the official summary of the bill makes it clear that one’s conviction is not automatically disregarded, as should be the case where a legal authority like Parliament wishes to recognize that a past law was unjust and the people convicted under it ought not to have been convicted at all. One must apply to have one’s conviction disregarded. The summary states that the law:

…enables those with convictions for consensual sexual relations between men aged 16 or over (which have since been decriminalised) to apply to have them disregarded.

I don’t want to be naive and condemn the bill without knowing the sort of debate that went into creating a scheme that requires an application from the convicted person — there could be a good reason for it — but I don’t want to be naive in the other direction either.

It is my experience that where governments can do so, they will more easily take a principles position if they can simultaneously minimize some of the work created by that position by creating winnowing techniques like requiring an application.

If there are, just for the sake of example, 5,000 men alive today who still have such a conviction on their records (I have no idea of the real numbers), and if only 2,500 apply to have their particular conviction disregarded (because the rest don’t hear about the change in the law, for instance, or feel intimidated by doing it themselves and can’t afford to retain counsel) then that represents a substantial savings in time and effort on the part of the government. What it does not represent is an effective application of the government’s purportedly principled position.

Furthermore — and very, very importantly — a reading of the actual text of the bill shows that the bill requires the person who was convicted to apply on their own behalf. I presume they can do this through a lawyer, but my point is that no one can do it for them if they’ve already died. And there must be many, many of these.

To someone who’s not directly affected by a conviction of this kind, this might seem like a small point. After all, what practical good is it to have your conviction disregarded if you’re dead?

Well as far as I know, none (although there might be effects of which I’m not aware) but for the surviving family members of the convicted person there would be immense relief to be had in clearing the name of their departed father or grandfather or uncle or whoever was convicted, and it is no small point that such relief is not available under this bill.

Convictions like this become family secrets that weigh heavily on a person’s friends and family. Or, if they do not remain secret, can become grounds for persecution and maliciousness. All of these effects persevere after the convicted person has died — the bully down the street doesn’t stop taunting a child about his “perverted sicko grandad” on the day the grandad dies.

If the government genuinely wishes to set right its past mistakes, the principled course is to accept the burden of doing it completely, not in half measures, and that means not requiring an application and it also means applying the change to the records of the dead as well as the living.

I think John Graham-Cumming is a great guy. I can’t express how important I think it was that he initiated the process that ultimately led to the government apology to Turing. I know that his present objections to the petition for the pardon are principled and well-meant. Nonetheless, I think he’s mistaken.

I welcome responses from anyone who wishes to express their views on this issue. If anyone submits a correction to a factual matter I’ve addressed, or makes an interesting point (whether in support or in rebuttal), I will post an update.

All that being said, as someone who is not a citizen or resident of the UK, I can’t sign the petition. For the reasons I’ve given, I urge all of you who do have that opportunity to do so. To sign, go here.