The Prerogative of Mercy in New Zealand

M.Travis
May 1998

NB: Endnotes are not linked within text. Please request a copy of the fulltext from the author if references are required.

1: Historical origins of the prerogative of mercy

The 'royal prerogative of mercy' is a power designed to allow the Crown to exercise mercy in criminal sentencing. It can be used to reduce sentences, and to grant pardon. In New Zealand this power has traditionally belonged to the Governor, and in more recent times to the Governor-General, on behalf of, and by way of delegation from the Sovereign. Hood Phillips' Constitutional and Administrative Law describes prerogatives as "a relic of the powers which the King had when he really governed the country."

The 1874 Letters Patent allowed for continuing delegation of the prerogative to be made toward the Governors of the country, and in 1892 it was made clear by Royal Instruction that the Governor must consult with either the Executive Council (in capital cases) or a fellow Minister before exercising this power. This was set out in clause VII of the 1917 Letters Patent:

"The Governor-General shall not pardon or reprieve any offender without first receiving in capital cases the advice of the Executive Council, and in other cases the advice of one, at least, of his Ministers."

Clause VIII investigated the properties and operation of the prerogative:

"The Governor-General may as he shall see occasion, in Our name and on Our behalf, grant a pardon to any accomplice in such crime as shall lead to the conviction of the principal offender."

The concept of pardon is later raised in s2 of the Public Offender's Disqualification Act 1882, and s452 of the Crimes Act 1908 in the capacity of restoring civil rights to those who had been deemed to have suffered the punishment of their convictions. Pardon is mentioned in s17 of the Criminal Appeal Act 1945, an Act which allows for the Governor-General to consult the opinions of the Courts when considering whether to exercise the prerogative. s407 of the Crimes Act 1961 then describes the "effect of free pardon", giving a brief description of how free pardon operates.

The Letters Patent 1983 features a rewording of previous entries, with clause 11 describing the "exercise of [the] prerogative of mercy." Finally, the most recent is s3 of the Constitution Act 1986, "exercise of royal powers by the Sovereign or the Governor-General", which again describes the delegation of royal powers "exercisable by the Governor-General on behalf of the Sovereign."

2: Current nature and limits of the prerogative of mercy

Nature:
The nature and limits of the prerogative of mercy has always been a recurring source of debate within the Courts. Re Royal Commission on Thomas Case 1 NZLR [1980] describes it as a matter of great importance since the seventeenth century, and gives the following statement as to its implied nature at the time:

"Prerogative pardons could be absolute or conditional. The absolute or 'free' pardon could 'forgive' the crime specified, and could restore any attainder."

Since then this definition has been augmented by the "effect of free pardon", in s407 of the Crimes Act 1961 which states that:

"Where any person convicted of any offence is granted a free pardon by Her Majesty, or by the Governor-General…that person shall be deemed never to have committed that offence."

A similar view is shared in 8 Halsbury's Laws of England , that:

"The effect of a pardon…is to clear the person from all infamy, and from all consequences of the offence for which it is granted, and from all statutory or other disqualifications following upon conviction. It makes him, as it were, a new man, so as to enable him in respect of the offence for which he was convicted."

Already we can see the opposition that has provided so much trouble; whether a pardon merely 'forgives' the crime, or whether it entirely absolves the defendant of culpability. There is no apparent rule to this, but one can infer, from logic, how to distinguish between the two. Clause VIII of the Letters Patent 1917 indicates one purpose of the power - to felicitate profitable exchange of information between Crown and defendant, with the attraction and 'reward' of reduced/absolved sentence. The Governor-General may "grant a pardon to any accomplice…who shall give such information as shall lead to the conviction of the principal offender." In such a case I think it is unlikely that the pardon absolves the defendant of guilt, but does remove the element of criminal penalty. In either case, this proposed purpose no longer exists in clause 11 of the Letters Patent 1983.

In the case of Arthur Allan Thomas however, "the effect of the pardon [was] that [he was] deemed never to have committed the offence; that, in law, and fact, he is to be treated as a person who was never guilty of it." This seems to indicate that in the majority of cases a pardon does more than protect the defendant from punishment but also removes all consequences, such as infamy. In Hay v Justices of the Tower Division of London (1890), Pollock B refers to free pardon as removing "the penalty and the guilt." In fact, in Cuddington v Wilkins (1615) a man successfully sued for defamation after being called a thief, in reference to a conviction for stealing sheep that had been pardoned, "[clearing] the person of crime and infamy." A final wording of the same point can be found in R v Cosgrove [1948] Tas SR 99, where Morris CJ found that pardon was not the equivalent of an acquittal but rather "contains no notion that the man to whom the pardon is extended did in fact commit the crime."

Another possible use of the prerogative is that of manipulating sentences to meet a social purpose. Recently, the prerogative of mercy has been used to "exercise justice tempered with a considerable measure of mercy" when sentencing clients who have shortened life expectancies or ill health; such as R v Stark (1991), a case involving a terminally ill AIDS patient.

Limits:
It would appear at first that the Governor-General is not particularly limited in exercising this prerogative. Under clause VIII of the Letters Patent 1917 he must receive the advice of the Executive Council in capital cases and his Ministers in others; but a later extract reveals that he may also exercise this power purely at his own discretion, despite what suggestions are made to him. He:

"May grant to any offender convicted in any Court…a pardon, either free or subject to lawful conditions, or any remission of the sentence passed on such an offender, or any respite of the execution of such sentence for such period as the Governor-General thinks fit; and further may remit any fines, penalties, or forfeitures due or accrued to Us."

s407 of the Crimes Act 1961 allows for the operation of the prerogative, with the limit "that the granting of a free pardon [does] not affect anything lawfully done or the consequences of anything unlawfully done before it is granted." Elsewhere it is recognised that pardon can be exercised as long as it does not create any 'factual fiction', such as in the Royal Commission on Thomas Case.

Another consideration of limits is whether the prerogative can be limited by judicial rule, or the threat of judicial review. This issue is extensively explored in Burt v Governor-General s7 NZAR (1987-89) and 3 NZLR [1992], but shall be fully discussed under s5, "Mechanisms that control the use of the prerogative."

3: Reason for its continued existence and why it has not been codified under statue

In s1 I gave an account of the history of the prerogative, including a description of its recent legislature. It has continued to exist as a power and function of the Sovereign under the Letters Patents, first in 1917 and then in 1983. It still exists because it is necessary for there to be a capacity of mercy where all legal proceedings are extinguished.

It has never been codified under statute as it needs to remain extra-legal and extra-judicial to retain its unique properties. As stated in de Freitas v Benny [1976] AC 239, "mercy is not the subject of legal rights. It begins where legal rights end." If the prerogative of mercy were to be codified, then once all legal remedies had been exhausted in the courts there would be no other recourse for pardon. As a prerogative power, the Governor-General has the ability to dispense it at his discretion, above all other legal conditions. As a statutory power the courts would have no option but to be bound by issues of culpability and guilt, whereas pardon can theoretically be granted even to rightfully convicted individuals.

Although this may sound suspicious it is also very necessary, if at least under the archaic s7 of the 1917 Letters Patent, to allow for reduced sentencing/pardoning as a reward for leading "to the conviction of the principal offender." Under the modern Letters Patent we can still assume this to be a possible use of the power - although no longer mentioned, it is not disapproved against either.

Further, while the courts can accept an adjustment of sentence as a matter of mercy (e.g. for terminally ill defendants), they cannot go to the extent of dealing with what would be punishment by imprisonment through a non-custodial option. As a prerogative power though, the Governor-General can exercise mercy as a social option - in cases involving particular personal needs for example (often medical). Stephen Gilchrist described this possibility as the prisoner being "left to the tender mercies of a political appointee on the advice of civil servants." This is a possibility that would have no provision as a statute.

4. Examples of use of the prerogative in New Zealand

The issues concerning this prerogative have been before court on several occasions, most notably in Burt v Governor-General and its appeals, and in such far ranging cases as the Slipper Island Resort Ltd v Minister of Works and Development [1981] 1 NZLR 136 and R v Stark (1991). However, actual exercise of the prerogative of mercy seems relatively scarce. There are precedent examples from the English courts, e.g. Cuddington v Wilkins (1615), but in New Zealand the most obvious example is R v Thomas.

On the 17th December 1979, the Governor-General granted a free pardon to Arthur Allan Thomas in respect of his conviction for the murders of David and Jeanette Crewe. Having served some eight years of a life sentence, Thomas was found to have been wrongly convicted of the murders. The Governor-General explained that there was "real doubt whether it [could] be contended that the case against … Thomas was proved beyond reasonable doubt," and consequently issued the pardon, defined by the Investigative Commission that Thomas was "deemed never to have committed the offence." He was cleared of all guilt and implication never again to "be charged with the murders of the Crewes."

The R v Thomas case was one of wrongful conviction, but there is also evidence of the prerogative of mercy being used in New Zealand as a consideration during sentencing. In 1991 the Court of Appeal was faced with R v Stark, a case involving a conviction for possession of heroin with intent to sell. Under exceptional circumstances the Crown court allowed for the matter to be stayed - the defendant George Michael Stark had contracted AIDS and his life expectancy was no more than two years.

However, Stark was again arrested for possession of drugs and the case was reopened. The Court of Appeal ruled that although some sentencing consideration could be made as a matter of mercy, there would be no justification for dealing with the case in a non-custodial way. Anything more was deemed to be "a matter for the royal prerogative" but nonetheless this prerogative was considered during sentencing.

5: Mechanisms that control the use of the prerogative

The prerogative of mercy seems limited only by the discretion of those who have the power to exercise it - the Sovereign, and the Governor-General by way of delegation in the Letters Patent 1983. Fortunately a precedence has been set by the practice of successive Home Secretaries that, in the words of Ivan Hare , "a free pardon should only be granted in cases where it was established that the convicted individual was both technically and morally innocent." Although only a precedent and in no way binding, this is most compelling and surely to be followed by successive Governor-Generals.

The only major mechanism that has been suggested for controlling the use of this prerogative is the possible threat of judicial review. So far there has not been a successful appeal for review, but there are many arguments on either side of the issue.

In de Freitas v Benny [1976] (Court of Appeal in Trinidad), Lord Diplock observed that "mercy is not the subject of legal rights [but] begins where legal rights end." Christopher Gelber considered this a ruling that "the exercise of the prerogative of mercy was inherently extra-legal in nature and therefore not justiciable," as did Lord Roskill in the G.C.H.Q. case [1985] A.C. 374. Furthermore it cannot be denied that the Crown's ability to pardon displays the necessary characteristics of a true prerogative; yet there are those like Watkins L.J. who reject the test of justiciability "in favour of an examination of the court's capacity to weigh the competing issues of principle in each case." Watkins considered the courts to be competent enough to review the prerogative of mercy.

Nonetheless, a judicial review of the prerogative has never been undertaken in a New Zealand court. The closest thing so far was the 'review via invitation' in R v Secretary of State for the Home Department, ex parte Benley [1993] 2 W.L.R. 101; where the Divisional Court did not order a formal review but "[invited] the Home Secretary to look at the matter again." Ivan Hare saw this invitation as attempting to "impose narrower parameters on the discretion of the Home Secretary" via the informal mechanism of invitation, but he seems dubious as to its ability in having any real effect. This is because it is beyond the role of the courts to suggest a particular result, and because any purported limitation on the role of the Home Secretary is illegitimate.

The issue is also a live one in Burt v Governor-General [1989] 3 NZLR 64, (1987-89) 7 NZAR and [1992] 3 NZLR 672, and some very important contributions to the argument are made. In these cases, Mr Burt sought a judicial review of the Governor-General's refusal to exercise the prerogative of mercy in granting him a free pardon. Although unsuccessful, Cooke P said that:

"It would be inconsistent with the contemporary approach to say that, merely because [the prerogative of mercy] is a pure and strict prerogative power, its exercise or non-exercise must be immune from curial challenge."

He states that the Courts' wish to review the refusal to exercise the prerogative is not "absurd, extreme or contrary to principle" as it is at the very least attempting to ensure that fair procedure has been followed. Moreso he adds that the prerogative of mercy is not "an arbitary monarchical right" but "an integral element in the criminal justice system…a constitutional safeguard against mistakes."

In conclusion, the prerogative is not to be touched by the Courts or judicial review, yet the concept is one that is winning favour amongst the Judges. It is possible that in a few years there will be mechanisms like judicial review to control the use of the prerogative, but it is very unlikely that it should ever become part of a statute.

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