“A Great science fiction detective story”

– Ian Watson, author of The Universal Machine

Days to Centenary: 133

NOTE: I posted this once, but a technical glitch cut off one paragraph and grafted it onto another. Maybe I was just too damned long-winded and WordPress was rebelling. Anyway, I am reposting it in the hopes it fares better. And while this post is long, don’t miss the end: I will try to make it worth the trip.

The topic of whether or not Alan Turing will be granted a pardon has been getting a lot of press recently.

The story of Minister of Justice Lord McNally’s rejection of the idea is apparently the most-viewed item on the Guardian web site. The Twitter-verse and Reddit are populated with numerous tweets, re-tweets, posts, re-posts, and comments on the tweets and posts.

As anyone who reads this page will know, I’ve written about this issue twice now. Because I’m a Canadian my understanding of pardons is based in Canadian law, which is why both times I addressed the topic I asked UK readers to let me know if there were any notable differences between the Canadian law regarding pardons (and US law, which is very similar) and the law that applies to Turing’s own case.

Well, now someone has, and it raises a lot of questions.

In my last post I called the Minister of Justice some unkind names because he claimed that a pardon was inappropriate as a result of the fact that Turing had been properly convicted under the law as it stood at the time. After all, it wasn’t like there had been a wrongful conviction.

My point was that pardons were created to deal with exactly the situation where someone has broken the law — no wrongful conviction in sight — but for one reason or another we want to give them a fresh start by clearing their criminal record (usually because they’ve served their sentence and have been law-abiding for a long period of time, indicating that they’re unlikely to offend again) .

In this context what Lord McNally said didn’t seem to make any sense. He also relied upon the existence of a policy about which he gave no details. I said he ought to have at least had the decency to produce the policy for everyone to see if he was going to deny such a popular measure on that basis.

Well, I’m still going to call Lord McNally some unkind names, but different ones, because one amongst you has responded to my request for a quick legal update on British pardons as distinct from Canadian ones.

It turns out that black is white, up is down, and — in England, the mothership of the common law — pardons are apparently now only used to address miscarriages of justice and are never used to help someone who has been rehabilitated make a fresh start. This isn’t how the English pardon started out, but it’s the pardon’s modern incarnation in the UK.

One of the leading cases in this area of the law, it seems, is a case called R v Secretary of State for the Home Department ex parte Bentley [full citation and text of the decision here].

The incident to which this case relates is infamous. In 1952 police officer Sidney Miles was shot dead by Christopher Craig. Derek Bentley was also convicted of the murder because he and Craig were committing a burlary together at the time, which made them both legally responsible for Miles’ death. Only Bentley — the guy who didn’t do the shooting — was eligible for the death penalty, however, because Craig was underage. Bently was hanged in 1953.

There ensued a long struggle, mostly led by Bentley’s sister, Iris, to clear his name. There was doubt as to whether or not Bentley actually uttered the words “let him have it Chris,” which police witnesses said he uttered, and which they claimed prompted Craig to shoot. There were also doubts about whether Bentley had ever been mentally fit to stand trial (tests administered after his arrest indicated that he was “borderline feeble-minded” and had an IQ of 77).

The precise role of this court decision in that protracted legal battle would take too long to explain here and isn’t necessary. What is important is what the Court of Queen’s Bench says in two brief sentences about the nature of the British pardon:

We understand the strength of the argument that, despite the fact that a Free Pardon does not eliminate the conviction, the 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.

(A “free” pardon means, in essence, one without conditions, and is presumably what is sought for Turing.)

This appears to accord with what the Minister of Justice said. England — unlike some of its benighted ex-colonies — uses pardons are only where the person shouldn’t have been convicted in the first place and never for anything else. And the policy, so vaguely referred to by the Minister, is cited right in the decision.

All that being said, I have some questions that are giving me a serious headache and Lord McNally is still wrong to refuse Turing a pardon.

First question: is Bentley still an accurate statement of the law?

Short Answer: As far as I can tell, yes.

Given that I’m in a non-English-speaking country at the moment I can’t go to a law library, and I don’t have a membership to an authoritative online database of British law, so I can’t do anything like exhaustive research. Bentley happens to be available on a free online database (the British and Irish Legal Information Institute, or BAILII), but not every case is on there, so I can hardly do a comprehensive review.

Nonetheless what I can see is a more recent case called Shields, R (on the application of) v Secretary of State for Justice [2008] EWHC 3102 (Admin) (also available on BAILII) in which the High Court of Justice reviewed the law regarding pardons and clearly agreed with the court in Bentley that a free pardon requires that the person be “morally and technically innocent.”

That “and technically innocent” part just doesn’t fly for Turing.

So unless something has shifted radically since 2008 when Shields was decided, it may not even be legally possible without a change in policy for Turing to get a pardon. (And here, again, I am asking readers in the UK to let me know if they’re aware of anything that changes this assessment.)

If it’s true that current policy and case law bar Turing from being pardoned — and here’s where the name-calling starts all over again — then the Minister of Justice not only did an unforgiveably bad job of communicating his views in a few days ago, as far as I know he never communicated them before, all the while allowing 23,000+ signatures to accumulate on the pardon petition along with a lot of public hope. He was surely not unaware of the petition, so why did he not say something sooner?

Second question: where the heck were the media?

Short answer: as far as I can tell, asleep.

I’ve followed the matter of the pardon petition in reasonable detail, and I’ve never seen menttion of this policy and its requirements and it’s quite likely that the thousands of UK residents who signed the petition never saw anything of the kind either.

John Graham-Cumming, who started the previous petition to get an aplogy for Turing (bless him), thought the petition for a pardon was a mistake for a variety of reasons, as he made clear in a blog post. In retrospect, as I look at his piece again, he appears to have had a sense that a pardon wouldn’t be applicable in Turing’s case, although he never came right out and made the reasons for this explicit:

In Turing’s case there’s really no argument that he simply broke the law. There aren’t any circumstances that change that. The law itself was awful (hence my campaign [for an apology]), but it’s not clear to me that a pardon is appropriate.

Now, I don’t blame Mr. Graham-Cumming for not contextualizing every single comment he makes on his blog — that’s not his job. My point in quoting him is to point out that unlike news media sites, at least he adverted to the potential problem.

But the Guardian (just to take an example, they’re not alone in this) might have been expected to not only mention this legal hurdle, as Graham-Cumming passingly did, but also to explain it for its readers.

The most recent Guardian piece, reporting on Lord McNally’s comments, simply said he “used the precedent argument” to dash hopes of a pardon. For anyone who’s not already familiar with the law of pardons, which is likely to be a lot of people, that doesn’t explain much at all.

More importantly, an article published by the Guardian back when the petition only had 3,000 signatures — 20,000 fewer than when the Minister made his comments — says absolutely nothing about the circumstances in which a pardon can be issued or whether it’s legally conceivable under current conditions for Turing to get one. There is not even a hint in the article that there might be a hurdle in the form of pre-existing case law and a long-standing policy.

Again, it may just be that as a foreigner I don’t possess knowledge that is common to every resident of the UK, making it unnecessary for the Minister of Justice or the media to engage in a campaign of public education, but those 23,000 signatures and the comments I see online indicate that that’s pretty unlikely.

Bonus question: so wasn’t Lord McNally right?

Short answer: as far as I can tell, not on your life.

Finally, does this mean we should stop trying to get Turing a pardon? Absolutely not. Those who take Lord McNally’s position are still wrong.

Why?

Bentley (and any decision that follows it) rests critically on a government policy. If the policy is changed, then the case law will follow. That is a goal worth working toward.

And policies, unlike court cases, are susceptible to public pressure, so perhaps pressure is the order of the day.

As I’ve said before, it’s fair enough to argue that not every little change in a legal regime should result in retroactive vindication for those who broke what was once the law, but some changes are big enough to justify such intervention.

Consider this.

In 1945, just a few years before Turing was convicted , Aleksandr Solzhenitsyn was convicted of “founding a hostile organization” under Article 58 of the criminal code of the USSR because he wrote derogatory comments about Stalin in a letter to a friend.

His conviction was entirely proper under the law of the day in the country where he lived, just as Turing’s was.

Now, the Soviet Union doesn’t exist any more, but ask yourself this. If the Soviet Union hadn’t disintegrated and instead had simply been reformed gradually into a democratic state, and if criticizing Stalin had been de-criminalized in that process, wouldn’t we argue that Solzhenitsyn (and others like him) should be pardoned so that he would be vindicated in retrospect and other dissidents, many still alive, would no longer have to live with the burden of a criminal record?

And if bureacrats in the new Soviet Union argued in response that you couldn’t just reach back into history to correct every little mistake a nation made would we accept that as a sufficient reason to let the matter rest and to leave those unjust criminal records in place?

Or if a policy had been created by a ministry in the shiny new USSR not to grant pardons to people who had been convicted under the old, repressive regime for ridiculous, morally innocuous “crimes” that would never be a crime (or even particularly comment-worthy) under the new regime, would we simply throw up our hands and say, “oh, well that ends it then, there’s a policy, I guess nothing can be done”?

Finally, is Solzhenitsyn’s political orientation (and that of other dissidents from the time) any more sacrosanct than Turing’s sexual orientation (and that of others in the LGBT community)?

I don’t know about you, but my answers are: yes, no, no, and no.