Queen’s Bench Divisional Court
Published January 14, 2009
Regina (Shields) v Secretary of State for Justice
Before Sir Anthony May, President and Mr Justice Maddison
Judgment December 17, 2008

The Secretary of State for Justice did have power and jurisdiction to consider granting a pardon under the Royal Prerogative in respect of a person convicted and sentenced in a foreign court but transferred to the United Kingdom to serve his sentence.

The Queen’s Bench Divisional Court so held in allowing a claim for judicial review by Michael Shields of the decision of the Secretary of State for Justice, on July 17, 2008, that he had no power or jurisdiction to issue a pardon because he was precluded from doing so by article 13 of the Convention on the Transfer of Sentenced Persons 1983 (Cmnd 9617) which provided that “the sentencing state alone shall have the right to decide on any application for a review of the judgment”.

Mr Peter Weatherby and Ms Laura Cawsey for Mr Shields; Mr Jonathan Swift for the secretary of state.

THE PRESIDENT said that it was significant that article 12 of the Convention which provided that “each party may grant pardon ... in accordance with its constitution or other laws” stood side by side with article 13 and neither was expressed to be subject to or qualified by the other.

The meaning of article 13 was clear, “judgment” was a decision of a court imposing a sentence and “an application for review of the judgment” had to be an application to a judicial body with power to review the judgment and, if so persuaded, to alter it.

In effect, that meant an application to a court and a “review” embraced an appeal or a judicial review process capable of quashing or amending the judgment. Therefore, article 13 embraced a judicial process and article 12 an executive process.

It was helpful to consider what the position would be if a person was convicted and sentenced in this jurisdiction . An application to appeal or review a conviction was a matter within the statutory and constitutional ambit of the criminal appeal courts and if such an appeal was brought and failed, the secretary of state would not consider granting a pardon on the ground that the appeal court reached a wrong decision on the material before it. The position was the same if there was a reference to the appeal court by the Criminal Cases Review Commission.

But pardon remained a flexible process intended, in very rare cases, to secure justice which the concluded court process could not achieve and rare circumstances could be conceived in which, for example, fresh evidence was available which was, or would be inadmissible or not capable of being given in court proceedings.

A resulting decision of the secretary of state that the prisoner was morally and technically innocent might, or might not, involve assessing fresh evidence in the light of the evidence available to, and the decision of the Court of Appeal.

If it were necessary to consider such fresh evidence in light of the evidence and the decision of the courts, that would not constitute a review of the judgment of the sentencing court in the sense of the expression “review” as used in article 13 of the Convention.

The process would not call into question the decision of the sentencing court on the material before it.

In light of that, the secretary of state did have a power under article 12 of the Convention to at least consider granting a pardon and it was open to him to consider a request to exercise the Royal Prerogative. It was not for the court to say whether or how it might be exercised.

Solicitors: RMNJ, Wirral; Treasury Solicitor.

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