“A Great science fiction detective story”

– Ian Watson, author of The Universal Machine

Days to Centenary: 137

I rarely suggest or support outrage. It’s too often self-indulgent, it can lead to a mob mentality, and these days it’s frequently orchestrated for commercial purposes (much of “reality” TV survives on easy outrage).

Nonetheless, sometimes it’s not only inevitable, but appropriate, and this is one of those times. As a result, while I will try to ensure that this post is filled with cogent argument — fair warning — I will swear once along the way. In the circumstances rudeness is the least of what’s called for.

The British House of Lords has refused to accede to a petition with widespread support seeking a pardon for computer pioneer and World War II hero Alan Turing in respect of his conviction for “gross indecency” (in Turing’s case this term means “having consensual sex with another man back in the 1950s when we didn’t put up with those kinds of shenanigans”).

[If you’re new to Alan Turing and aren’t sure what this is all about, see the About Alan Turing page to get caught up quickly on why this guy matters.]

Edward Teach, otherwise known as Blackbeard the pirate, was pardoned by the Crown, but Alan Turing can’t catch a break. (For those of you who are interested, here is a list of forty different persons who received British Royal Pardons. Thieves, fraudsters, and political plotters –but at least they weren’t having gay sex.)

Heck, Doors singer Jim Morrison recently got a posthumous pardon over his conviction for exposing himself in public back in the 1960s. I like the Doors and all, but I really do rank Turing a little higher.

In refusing Turing a pardon, the Lords have dropped a word-bomb of such staggering inanity that if this pile of words lay on the sidewalk you’d be forced to step around it to avoid getting any on the bottom of your shoes.

Justice Minister Lord McNally has been the government’s spokesman on this decision, as is appropriate given his portfolio, so while I don’t wish to lay the entire travesty at his doorstep, he is the public face of this refusal.

The Announcement

In announcing the decision, Lord McNally stated:

A posthumous pardon was not considered appropriate as Alan Turing was properly convicted of what at the time was a criminal offence. He would have known that his offence was against the law and that he would be prosecuted. It is tragic that Alan Turing was convicted of an offence which now seems both cruel and absurd-particularly poignant given his outstanding contribution to the war effort. However, the law at the time required a prosecution and, as such, long-standing policy has been to accept that such convictions took place and, rather than trying to alter the historical context and to put right what cannot be put right, ensure instead that we never again return to those times. [Also see here]

This is the sheerest, most shameful nonesense. In the blunt language of my childhood: I call bulls**t.

The statement sounds vaguely persuasive on its surface — as well it might coming from a career politician, and especially with all the sympathetic verbiage thrown in to distract you — but it should not persuade you and I am going to explain why.

Lord McNally makes two claims. First, that because Turing was properly convicted of an offence under the law as it stood at the time, a pardon is inappropriate. Second, that there is a long-standing policy not to grant pardons in such circumstances.

The first claim is untrue, the second may or may not be true, but is wholly unconvincing.

Why Lord McNally’s First Claim is Patently, Laughably, Inarguably Untrue

Turing was properly convicted under the law of the day — no one claims otherwise. But let’s be very, very clear about what a pardon is. It is a form of clemency, of forgiveness for someone who has actually done something wrong. That’s why it’s called a pardon.

It is not an alternative appeal process to be applied to miscarriages of justice, although in some cases it has evolved into just that when all other avenues have been exhausted and a case is compelling. But this use — as a tool for correcting the errors of the justice system — is the exception to the rule, not the norm.

If a lay person said that someone shouldn’t be pardoned because they were guilty (rather than having been wrongly convicted), it would be a forgivable misunderstanding of the law. When the Minister of Justice says it, it strains credulity to imagine that it’s a mistake. You can decide for yourself what to call it.

The truth is that the largest single category of people who are pardoned are those who, in Lord McNally’s words, “would have known that his [or her] offence was against the law and that he [or she] would be prosecuted” and who were quite properly convicted of the offence they committed, exactly like Turing. Granting a pardon in these circumstances is a routine matter that happens virtually every day of the year.

If you think I’m wrong, ask any criminal lawyer, or anyone who works with youth in conflict with the law, or who helps re-integrate former prisoners into mainstream society. I’m being very literal about that: don’t take my word for this, go out and find such a person and ask them. They will tell you exactly what I’m telling you — pardons are overwhelmingly used to give guilty people who’ve paid their dues a fresh start, not to correct injustices.

I wrote about the nature of pardons in a previous post, so I’m not going to reinvent the wheel or let perfectly good research go to waste. Here is what I said.

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 [in Turing’s case] 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.

Lord McNally’s assertion that Turing was properly convicted is true, but his claim that this somehow undermines Turing’s case for a pardon is patently, laughably, inarguably untrue.

It is precisely the fact that Turing was legally guilty that makes a pardon — a term that many Turing supporters find offensive because it appears to implicitly endorse the notion that he did something wrong — the one and only correct remedy to use in this situation.

Why Lord McNally’s Second Claim is Unconvincing: Version One

The second claim is that:

… the law at the time required a prosecution and, as such, long-standing policy has been to accept that such convictions took place…

What Lord McNally seems to be saying, if I am correctly parsing the political flim flam of his announcement, is that there is a policy against granting pardons in situations where the law has changed since the time of a person’s conviction such that whatever they did that got them convicted way back when would not be a crime now.

My first response to this argument is: show me the policy. It’s all very well (and very easy) to claim that a convenient policy exists which– oops, sorry about that — turns an inconvenient request into an impossible one, but in a democracy that should not be enough.

The relevant Minister should be able to produce the policy. Now maybe the policy is not written down anywhere, in which case the House of Lords has failed to learn the basic lesson that any competent human resources department knows, which is that policies are unconvincing and difficult to enforce if they are not written down. If there is no piece of paper that can be held aloft — here, here is the policy I was talking about — then the Lords should at a minimum be able to point to a long line of previous instances where this unwritten policy was given effect.

As far as I know they haven’t done either of these things. I’ll be interested to see if they do, but I won’t be holding my breath.

Why Lord McNally’s Second Claim is Unconvincing: Version Two

Let’s say that the Lords now produce such a policy (possibly with the ink still wet). Ask yourself: is that decisive? Should it be?

There are two reasons that one might give Turing a pardon. One is based on an exceptionalist argument, while the other is based on a parity argument.

The exceptionalist argument is that Turing (in distinction to others who may have been convicted of the same behaviour) deserves a pardon because of his extraordinary contributions to Britain and to the world. This isn’t my favourite argument, but it’s out there and as an argument for a pardon goes, it’s not an ineffective one (even if you don’t like the premise, which I don’t).

Why is this argument effective? Because with this argument the fact that the law has changed since Turing’s time becomes irrelevant and the policy becomes irrelevant along with it. We wouldn’t be giving him a pardon because the old law was a bunch of wrong-headed homophobic twaddle, we’d be giving him a pardon because whatever the law might have been, Turing was an exceptional guy and the good he undeniably did far outweighs the “bad” that he purportedly did in breaking the law.

So if I’m not misinterpreting what Lord McNally has said, if the policy really is all about not updating people’s criminal records based on changing social norms, then that policy has no bearing on this basis for a pardon.

Then there’s the parity argument, which is based on treating everyone equally rather than making an exception for Turing. If the reason to give Turing a pardon really is not that Turing is special, but instead that the old law was a piece of despicable claptrap based on prejudice and we’ve moved on (at least a little) since then, what do we say about the policy then?

I think we say this. We shouldn’t reach back into the depths of judicial history every time we make some minor change to our way of thinking, but there are some major changes — titanic shifts in public morality — that justify removing the taint of a criminal conviction.

Things like ending slavery, extending the vote to women, and ending the criminality of gay sex.

In those cases (and I’d love to hear the argument that claims that this is not one of those cases), I don’t care what the Lords’ policy says and there are at least 23,000 citizens of the UK who apparently agree with me (probably many more, but that’s how many have signed the petition so far).

A fair policy, a wise policy, is flexible, and can adapt to situations that might not have been considered when it was created, or to situations that were considered but whose significance has changed over time. A fair and wise policy would, one way or another, include a pardon for Turing and for others who engaged in gay sex at a time when the law prohibited it because that’s simply the right thing to do.

A policy that doesn’t do these things should be torn up and reformulated and anyone who defends (or hides behind) such a policy — this is just my opinion, now — doesn’t deserve to be a Minister of something called Justice.

So What’s It All About Alfie?

But then, why would the Lords not want to pardon Turing? One would think that it must have been tempting for them to do so.

As I’ve said before, no less a figure than Winston Churchill said that Turing made the greatest contribution to the Allied victory in World War II of any single person. Artificial intelligence pioneer Marvin Minsky called him “the key figure of our century” (meaning the 20th cnetury, since that’s when he said it).

And while we may sometimes argue about whether or not his fame as a technological innovator is eclipsing the achievements of other people who also made huge contributions in the fields that he did, the fact is that the fields of mathematics, computing, and artificial intelligence were all profoundly affected by his genius.

One way or another, the guy is a genuine British genius/hero, so what gives?

And, you know, 2012 is the Alan Turing Year, with celebrations of his work in twenty or so countries around the world, which had to at least mean that saying “no” to a pardon was going to look kind of mean-spirited.

So why not give in to temptation and pardon him?

Obviously I have no way of knowing for sure, but I suspect the answer is pragmatic — as it so often is with government — and comes down to a calculation of relative costs.

What is more costly in institutional terms — in terms of manpower, cash, publicity, and so forth?

Option one: face down the outrage of those who favour a pardon and hope it blows over fairly quickly.

Option two: face the possibility that if Turing got a pardon then every other person who was convicted under the same law as Turing would arguably be entitled to one as well.

I stronly suspect that the government simply prefers to weather Option One than to open up the doors to Option Two.

Here is a tweet from the official Alan Turing Year Twitter account:

If We Do Nothing, Nothing Will Get Done

So now the government has made up its mind — maybe it’s time to throw up our hands and go home. We’ll hold our noses and make the best of the Alan Turing Year despite the impolite odour that emanates from the House of Lords, tainting the festivities whenever we’re reminded of it.

Or not. Personally, I say not.

No matter what they may say, government actions are rarely carved in stone, especially if they turn out to be more unpopular than the government in question predicted.

If it seemed to the Lords that facing the anger of the Turing-ites would be easier than issuing a blanket pardon to all of those who, like Turing, deserve it, perhaps we can ensure that their calculation was wrong. Let’s make sure that this decision costs them in credibility, in public esteem, and in public relations, and let’s not let it go away as quickly as they’ve hoped it will.

Here is what I recommend:

First of all, I don’t really care who you are or what you think of homosexuality. If you’re gay, get involved. If you’re pretty much pleased that Hitler didn’t win the war, if you once in a while use a computer, or if you’re a member of a group that has been discriminated against, this issue concerns you, so get involved.

Very importantly, if you think this decision is wrong, find one other person who doesn’t know about it yet who you’re pretty sure will also think it’s wrong and get them involved. If you can find more than one, that’s great, but find at least one.

Everyone who disagrees with this decision, whether in the UK or elsewhere, should write an email to their local media expressing their disagreement with it and giving their reasons for taking the position that they do. As always, be civil and try to be persuasive rather than merely polemical, but do it. This issue should be showing up on “letters to the editor” pages around the world and should not go away soon.

The petition is apparently still up and active, so as many eligible people (UK residents) as possible who haven’t yet signed it should do so immediately. The best signal we can send is if its numbers shoot up immediately after this announcment, making it clear that we will not complacently accept the Lords’decision. Lord McNally is the responsible Minister, so while I repeat that this is not his issue alone, he is the person who should hear what you think. His contact information is publicly available. Go to the first mention of him in this post and click on the link to get it.

Those of us who are outside the UK have probably been too complacent up until now, relying on our petition-eligible counterparts to do the work for us. If you don’t qualify to sign the petition, don’t let that stop you. Tell the Lords that you disagree with the decision, again via the relevant Minister. Do it in civil language and without abusing them, but do it. This applies especially (but not exclusively) to those who live in copmmonwelath countries.

Those who live within the UK should not stop at signing the petition. Write your Member of Parliament and tell them you disapprove. Again, be civil and never be abusive, but leave them with no doubts about your position on the matter.

Those who live outside the UK should not only write to the Minister, but also to our own government representatives, urging them to request through diplomatic channels or informal communications that the Lords reconsider. The diplomatic option may be a thin hope, but informal communications happen all the time

It might be too late to do anything, I don’t know, but if we do nothing then it is definitely too late.

Addendum: The Protection of Freedoms Bill

I didn’t want to extend an already very long post with a legal issue that I don’t think is critical to the issue at hand, but just in case anyone tries to tell you, hey, don’t worry about the whole pardon thing, there’s a Protection of Freedoms Bill on the way that will take care of everything, here is why you shouldn’t believe them.

As some of you may know there is a new legal measure on the way that could persons who were convicted of “gross indecency” for gay sex some relief — the possibility of having a conviction “disregarded” — but crucially would not give them a pardon.

It would also put the burden of getting that relief on the convicted person themselves, who would have to apply, rather than putting that burden where it belongs: on the government which created the bad law in the first place and now should be correcting its past mistakes.

Most importantly, putting the burden on the person seeking relief would, I suspect, reduce the number of people involved and correspondingly reduce the cost to government of dealing with the problem. A cheaper solution, to government, is almost inevitably a better solution, but that does not make it the right solution.

The law has other inadequacies as well. Here is what I wrote previously about it:

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 notautomatically 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 itdoes 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.