In the English and British tradition, the royal prerogative of mercy is one of the historic royal prerogatives of the British monarch, by which they 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" (lands overseas) was used since at least 1617. It is now used to change any sentence or penalty. Those responsible for recommending its exercise are:
- the Secretary of State for Justice within England, Wales, and the Channel Islands
- the Secretary of State for Northern Ireland within Northern Ireland for reserved matters, and the Justice Minister for Northern Ireland for devolved matters.
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.
Forms of mercy
Free pardons
Free pardons release a person from the effect of a penalty or a consequence of a sentence, but they do not quash or overturn the conviction, which remains after the pardon. They were traditionally used where new evidence demonstrated conclusively that no crime was committed or that the individual did not commit the offence, but the expansion of rights of appeal have reduced the need for free pardons, particularly since appeals have the power to quash the original conviction and provide a presumption of innocence. The abolition of the death penalty and the increase in the rights of appeal, have meant this pardon is rarely used. also called remission pardons, Conditional pardons and special remissions are not noticed in the London Gazette.
Use of the royal prerogative of mercy diminished after the Criminal Cases Review Commission was established in 1997, creating an alternate route for review of possible flawed decisions in criminal prosecutions. The vast majority were not related to terrorism, but an unknown number were granted to members of paramilitaries or security forces. Recipients included Sinn Féin's Gerry Kelly, who was granted an RPM after he was captured in the Netherlands in 1986, to which he had fled after escaping in 1983 from Maze Prison, where he was serving a sentence for his participation in the IRA's 1973 Old Bailey bombing.
In 1884 Queen Victoria exercised the royal prerogative to commute the death sentences of Thomas Dudley and Edwin Stephens to imprisonment for six months due to the circumstances of their crime.
In 1980 sisters Dolours and Marian Price were given the royal prerogative.
In 2001 two inmates at HMP Prescoed, South Wales, were released 28 days early, under the prerogative of mercy, as a reward for saving the life of the manager of the prison farm when he was attacked and gored by a captive wild boar.
In 2020, the royal prerogative of mercy was used to reduce the minimum tariff that must be served before Steven Gallant could be considered for release on parole. Gallant, who was serving life imprisonment for murder, was granted this reduction in sentence "in recognition of his exceptionally brave actions at Fishmongers' Hall, which helped save people's lives despite the tremendous risk to his own" while confronting terrorist Usman Khan during the 2019 London Bridge attack.
Other Commonwealth countries
Australia
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.
Canada
In Canada the royal prerogative of mercy is established in Letters Patent of the Governor General acting on behalf of the Monarch, who consistent with constitutional convention may grant pardons on the advice of a cabinet minister. In practice, Section 748 of the Criminal Code gives the Governor in Council (i.e. cabinet) the power to exercise the prerogative, which is the preferred approach. As Canada has a record suspension process, the royal prerogative is only exercised cases where there is substantial injustice or undue hardship.
New Zealand
In New Zealand, the prerogative of mercy is exercised by the Governor-General, as the King's representative, with the power being delegated by the Letters Patent 1983. The Governor-General will act on the advice of the Minister of Justice, and has the power to grant a pardon, refer a case back to the courts for reconsideration, and to reduce a person's sentence.
In 2013, Scott Watson was refused a pardon by Sir Jerry Mateparae under the prerogative of mercy, following advice from the then-Minister of Justice Judith Collins. Kristy McDonald QC was appointed by the government in 2009 to review the evidence, and recommended to the government that there was a lack of new evidence to warrant an exercise of the prerogative of mercy.
In 2020 Andrew Little set up the Criminal Review Commission to review potential miscarriages of justice, as the threshold for the royal prerogative of mercy was deemed to be too high and other avenues to avoid miscarriages of justice were needed. Also in 2020, David Tamihere was granted the prerogative of mercy and his case was referred to the Court of Appeals to be reheard.
Malaysia
The King of Malaysia has executive power to grant royal pardons. A high-profile example is the pardon of politician Anwar Ibrahim, who had been jailed for sodomy, by Muhammad V of Kelantan after the 2018 Malaysian general election.