The administrative scheme for "on-the-runs" - Northern Ireland Affairs Contents


8  Use of the Royal Prerogative of Mercy

283. The Royal Prerogative of Mercy (RPM) allows the Sovereign to grant pardons to those persons convicted of a criminal offence. In practice, exercise of this power is delegated to either the Home Office or to the NIO, as appropriate. For Northern Ireland, the power was devolved to the Department of Justice in Northern Ireland in 2010.[183]

284. The Downey judgment alerted us to the use of the RPM in OTR cases. It stated that "by the end of November 2001 the cases of 41 individuals had been resolved (one way or the other) with 8 more expected to be resolved shortly. The Royal Prerogative was used in a small number of cases."[184]

Pre-conviction pardons

285. Below, we set out some of the key correspondence in the Downey disclosure bundle relating to the use of the RPM.

286. On 11 December 2000, the Attorney General wrote to the Secretary of State for Northern Ireland regarding the issue of pre-conviction pardons. In his letter he concluded that:

    This is a very high risk strategy where you will need to be satisfied that the political objective is sufficiently important to undergo the substantial risk that the decision will be overturned in the courts.[185]

287. On 14 December 2000, Lord Mandelson wrote to the Attorney General, Lord Williams, to ask him to consider how best to deal with those who went 'on the run' prior to conviction and whether their extradition should be dropped by the UK authorities. In a note to the Prime Minister on 20 December 2000, Lord Mandelson considered the use of pre-conviction pardons. He concluded, however, that this should not be used at the time.

Conclusion on Pre-Conviction Pardons

288. Having looked at all of those documents which have been made available to us, we have concluded that pre-conviction pardons were not used in relation to OTRs.

When were Royal Prerogatives of Mercy used?

289. In total the RPM was used in 13 OTR cases, which are highlighted in the Report of the Hallett Review and in the Downey disclosure documents. The Report stated that during December 2000, when Lord Mandelson was Secretary of State for Northern Ireland, the RPM was used in four cases:

    In December 2000 four of the OTR cases under consideration appeared to present a particular problem. All four had escaped from custody in Northern Ireland, having been sentenced to determinate terms for offences in the Republic of Ireland; three of the four had also received indeterminate life sentences. They had all served substantial parts of those sentences in the Republic. Had they served the sentences in Northern Ireland, they would have qualified under the Northern Ireland (Sentences) Act 1998 and would have been released on 28 July 2000[…]

    […]All four received the RPM to remit the outstanding balance of their sentences. The three who had received life sentences were also made the subject of a licence, leaving them liable to recall under section 23 of the Prison Act (Northern Ireland) 1953. They were not 'pardoned'.[186]

290. A number of names on Sinn Féin's first list were those who had escaped from prison had been convicted, sentenced and served part of their sentence. The Report of the Hallett Review stated that:

    The use of the RPM was suggested as a means of remitting the outstanding balance of those sentences. ... It was believed that the RPM could be an effective way of dealing with these anomalous categories of individuals who would otherwise have been released on 28 July 2000 in accordance with the Northern Ireland (Sentences) Act 1998. The advice of senior independent Counsel was commissioned to check whether this solution would be proper and lawful.[187]

291. Lord Mandelson explained to us the use of the RPM during his time as Secretary of State, telling us, "These were not pardons; they were commutations of their sentences. That is an absolutely fundamental principle. I was not party to giving people pardons."[188] He then went on to clarify that:

    If there was no evidential basis for a direction of prosecution or further prosecution for people who had absconded and had served time, it was reasonable, alongside the early release scheme and in the spirit of that scheme, to give them their freedom.[189]

With regard to using the RPM for four OTR cases in December 2000, Lord Mandelson told us:

    Did I feel happy about, as it were, using the Queen's name to do this just before Christmas? No, I did not. Did I have any alternative? No, I did not.

292. Lord Reid, the only other Secretary of State who commissioned the use of the RPM, told us what it was used for in OTR cases, he stated:

    Thirdly, the royal prerogative of mercy can be used where there is a technical exclusion from qualification by an act, but in the spirit and intention of the act itself you fell within the bounds of that.[190]

PARLIAMENTARY QUESTIONS AND DISCLOSURE TO THE PUBLIC

293. There have been some early disclosures to Parliament regarding the use of the RPM. For example, in March 2002 in response to a question by Jeffrey Donaldson MP, Lord Reid stated:

    11 prisoners on the run have successfully applied to the Sentence Review Commissioners for early release under the terms of the Northern Ireland (Sentences) Act 1998. In addition eight prisoners on the run have met the principles of the early release scheme but a strict application of the Sentences Act has created an anomaly whereby the Sentence Review Commissioners are unable to grant an early release. In those circumstances the Secretary of State's powers under the Northern Ireland Prisons Act 1953 or the Royal Prerogative of Mercy have been used to provide early release. It has always been the Government's policy that they do not name individuals released under the early release scheme.[191]

294. On 29 May 2002, Lord Williams disclosed the following in a Parliamentary Question in relation to the use of the RPM in relation to terrorist prisoners. He stated:

    There is no central record of prisoners released using the Royal Prerogative of Mercy. However the records that have been traced by the NIO show that since 1990 the Royal Prerogative of Mercy has been used to release terrorist prisoners in the following circumstances:

·  providing information or assistance to the authorities—five cases;

·  terminal illness—one case;

·  remission incorrectly calculated—one case;

·  to correct anomalies in the treatment of offenders convicted of the same offence(s) and given the same sentence as co-defendants but who would otherwise have served longer in prison—two cases;

·  to release prisoners who would have been eligible for release under the Belfast Agreement had they not transferred to a different jurisdiction—two cases;

·  to release prisoners who would have been eligible to be released under the Belfast Agreement had their offences (which subsequently became scheduled offences) been scheduled at the time they were committed—eight cases;

·  to release prisoners who would have been eligible to be released under the Belfast Agreement had they not served sentences outside the jurisdiction having been convicted extraterritorially—five cases.

    In addition, it was the practice before 1995 to release using the RPM terrorist and non-terrorist prisoners whose release date fell while they were on Christmas home leave.[192]

PUBLICATION OF NAMES

295. We accept there was some early disclosure of the use of the Royal Prerogative; but, most regrettably, unlike in England and Wales, where the names are published in the London Gazette, these names were not publicised anywhere in Northern Ireland. For them the RPM was only used to remit sentences. The Report of the Hallett Review states:

    There is no legal obligation to publish the exercise of the RPM. By convention, the use of the RPM to grant a free pardon (which is not relevant here and is a truly exceptional measure) is published in the London Gazette. It is not the usual practice to publish the use of the RPM to remit sentences; hence there was no publication of its use for the 13 OTRs.[193]

296. We welcome the fact that the Hallett report recommended that a central register of RPMs be drawn up for Northern Ireland, and are pleased that HM Government has already accepted this recommendation, although this information will not be provided retrospectively. In the interests of transparency, and given that the names of those who received the use of the RPM are already in the public domain, however, we recommend that the Secretary of State should publish this information retrospectively.

Rodger's (Robert James Shaw) Application [2014] NIQB 79

297. In June 2014, the Court case Rodger's (Robert James Shaw) Application [2014] NIQB 79[194], published the names of sixteen of the people who received the RPM in Northern Ireland between 2000 and 2002. Those people were:- James McArdle, Sean Branniff, Fergal Toal, Hugh Clarke; Eugene Fanning; Malachy McCann; Edward F Campbell; Daniel Keenan; James Monaghan; SJ Clarke; Gerard Fryers, Robert J Campbell; Paul Magee; Angelo Fusco; Gerard Sloan; and Anthony Sloan. The court document does not, however, set out which of those recipients of the RPM were the thirteen OTRs.

Conclusion on the use of RPM

298. We believe that the use of the RPM went far beyond the terms of the Belfast Agreement. Given that the early release of prisoners was a bitter pill for victims, OTRs being given the RPM is incomprehensible. We recommend that HM Government confirm which OTRs received the RPM, as the provision of such information could not jeopardise any future prosecution of those individuals.

299. Whilst the name of those who received a RPM have been disclosed in court cases, the Secretary of State has refused to name which of those are OTRs. We find this wholly unacceptable.

300. Where the RPM has been used in Northern Ireland in the past, we believe HM Government should publish the names of those people, and list what they received the RPM for, and we recommend that the names of any future recipients of the RPM in Northern Ireland should be required to be published in the Belfast Gazette.


183   For Scotland, the use of the RPM was devolved to Scottish Ministers by the Scotland Act 1998 Back

184   Judiciary of England and Wales, 'The Queen -v-John Anthony Downey', 21 February 2014, para 55 Back

185   Downey Disclosure Documents, p 394, Letter from Lord Williams to Peter Mandelson, 11 December 2000 Back

186   The Hallett Review, The Report of the Hallett Review, July 2014, para 4.49 Back

187   The Hallett Review, The Report of the Hallett Review, July 2014, para 4.41 Back

188   Q2987 Back

189   Q2988 Back

190   Q1987 Back

191   HC Deb, 11 Mar 2002, Col 705W Back

192   HL Deb, 29 May 2002, col WA161 Back

193   The Hallett Review, The Report of the Hallett Review, July 2014, para 2.59 Back

194   High Court of Justice in Northern Ireland, Rodger's (Robert James Shaw) Application [2014] NIQB 79, June 2014 Back


 
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Prepared 24 March 2015