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Report No. 35

Topic Number 57(b)

Principles for mercy-whether codification desirable

1070. Principles for mercy-whether codification desirable.-

The principles on which the prerogative of mercy/is exercised, may be considered. The grounds on which commutation is granted cannot, of course, admit of exhaustive categorisation. The circumstances in which a murder is committed vary infinitely. Certain types of murder, however, are considered as deserving special scrutiny, to see whether there are any extenuating circumstances.

1071. Practice in England.-

The cases in which commutation is granted in England can be gathered from the discussion in the Report of the Royal Commission1. After stating that in cases of mercy killings, survivors of genuine suicide pacts and murder by a mother of her own child under the influence of strong emotion and distress of mind (where the case does not fall under the Infanticide Act), the commutation is almost invariably granted, the Report of the Royal Commission notes the cases which are regarded as fit for exercise of the prerogative, as follows:-

"Among such cases are unpremeditated murders committed in some sudden excess of frenzy, where the murderer has previously had no evil animus towards his victim, especially if he is weak-minded or emotionally unstable to an abnormal degree; murders committed under provocation which, though insufficient to reduce the crime to manslaughter, may be strongly mitigating circumstances; murders committed without intent to kill, especially where they take place in the course of a quarrel; murders committed in a state of drunkenness falling short of a legal defence, especially if the murderer is a man of hitherto good character; and murders committed by two or more people with differing degrees of responsibility.

No person under eighteen has been executed since 1887, or can now (since 1933) legally be sentenced to death; above that age youth, though not in itself a sufficient ground for reprieve in a heinous case, is always taken into account with other mitigating circumstances. There is a "natural reluctance" to carry out the death sentence on a woman, and "there have been occasions on which the Home Secretary of the day has expressly had regard to the prisoner's sex in deciding to recommend commutation". Finally there are three rare classes of cases in which reprieves may be granted. One is where the Home Secretary feels that despite the verdict of the jury there is a "scintilla of doubt" about the prisoner's guilt.

Secondly, although there have been many cases in which the sentence of death has been carried out "despite strong and persistent agitation for clemency", it has occasionally been felt right to commute the sentence in deference to a widely spread or strong local expression of public opinion, on the ground that it would do more harm than good to carry out the sentence if the result was to arouse sympathy for the offender and hostility to the law. Lastly, it is occasionally, though very rarely, necessary to commute the sentence if the physical condition of the prisoner is such as to give ground for thinking that it could not be carried out expeditiously and humanely."

1. R.C. Report, p. 12, para. 39.

1072. In this connection, we would also like to quote the reply which Mr. Herbert Gladstone gave in the House of Commons to a question by Mr. C.B. Harmsworth (Worceshershire, Droitwich)1.

"Mr. Gladstone: It would be neither desirable nor possible to lay down hard and fast rules as to the exercise of the royal prerogative of mercy. Numerous considerations-the motive, the degree of premeditation or deliberation, the amount of provocation, the state of mind of the prisoner, his physical condition, his character and antecedents, the recommendation or absence of recommendation from the jury, and many others-have to be taken into account in every case; and the decision depends on full review of a complex combination of circumstances; and often on the careful balancing of conflicting considerations.

As Sir William Harcourt said in this House, "The exercise of the prerogative of mercy does not depend on principles of strict law or justice, still less does it depend on sentiment in any way. It is a question of policy and judgment in each case, and in my opinion a capital execution which in its circumstances creates horror and compassion for the culprit rather than a sense of indignation at his crime is a great evil".

There are, it is true, important principles which I and my advisers have constantly to bear in mind; but an attempt to reduce these principles to formulas and to exclude all considerations which are incapable of being formulated in precise terms would not, I believe, aid any Home Secretary in the consideration of the difficult questions which he has to decide.".

1. Parliamentary Debates, Fourth Series, Vol. 172, col. 366 (11th April, 1907).

1073. Practice in Canada.-

The discussion in the Canadian Report shows that the practice followed in Canada is not substantially different from that in England1.

1. Canadian Report, pp. 4 and 5, para. 10-14.

1074. Practice in Ceylon.-

The Ceylon Report1 discusses this matter incidentally in connection with the possibility of erroneous convictions. It states that while in Ceylon the verdict of the jury of 7 persons divided 5 to 2 in favour of conviction is accepted, in exercise of the prerogative of mercy, the Minister of Justice, prior to April, 1956, took into account, as one factor on which his advice to the Governor-General would be based, the fact that the jury were divided. The Report adds that nevertheless there were cases where the convicted murderer was executed despite a 5 to 2 division in the jury.

1. Report of the Commission of Inquiry on Capital Punishment (Ceylon), (Sessional Paper XIV-1959), pp. 53-54, paras. 33-34, and p. 55, paras. 39-40.

1075. Considerations that may be taken into account.-

While dealing with the commutation of death sentences, various factors (age, sex, mental deficiency, grave and sudden provocation, absence of motive and pre-meditation and the like) would fall to be considered.

1076. Rigid rules not desirable.-

Having regard to the fact that the circumstances of each case must differ from another, it would not be desirable to attempt to lay down any rigid and exhaustive principles on which the sentence of death may be commuted.

In fact, it is the very nature of the prerogative that it is a discretionary authority1-2. The description given by Blackstone3 shows that the essential characteristic of the royal prerogative is that it is "unique and pre-eminent".

As has been pointed out'4, the prerogative of mercy is an executive power of a very special kind and is almost the only permissible, and indeed, essential, means of intervention by the executive in the administration by the courts of criminal law.

1. Cf. Lord Parmoor in Attorney General v. DeKeyser's Royal Hotel Ltd., 1920 AC 508: 1920 All ER Rep 80 (105) (House of Lords).

2. See also Halsbury, 3rd Edit, Vol. 7, pp. 221, et seq.

3. Blackstone's Commentary, Vol. 1, p. 239, cited in Hood Phillips Constitutional and Administrative Law, (1962), pp. 242 and 243.

4. Kenneth Roberts Wray Commonwealth and Colonial Law, (1966), p. 34.

1077. Questions about exercise of prerogative.-

It may be stated, in England, the Home Secretary may not be questioned about the exercise of the prerogative of mercy, in cases where persons have been sentenced to death, before the execution or commutation of the sentence1-2-3.

1. R.A. Butler (Home Secretary), in the House of Commons Debates, dated 20-9-1960.

2. Geoffery Marshall Parliament and the Prerogative of Mercy, 1961 Public Law, p. 8.

3. See also Halsbury, 3rd Edn., Vol. 7, p. 243, para. 27 and footnote.

1078. Halsbury gives these references on the subject1:-

(i) The Speaker's ruling of 10th March 1947 in 434 House of Commons, Official Report 959; and his statement of 1st May, 1947 in 436 House of Commons Official Report 2179 ("A Minister is responsible to the King, and not to the House, for the advice he proposes to tender to His Majesty, though he is responsible to the House for the advice once it has been tendered").

(ii) the discussion on a disallowed motion relating to the prerogative of mercy in the House on 27th January, 1953 (510 House of Commons, Official Report, 845-864).

1. Halsbury, 3rd Edn., Vol. 7, p. 243.

1079. The following extract from a recent study is also useful1:-

"On February 7, 1961, the Speaker ruled that a question sought to be put down by Mr. Syndey Silver-man asking the Home Secretary to order an inquiry into whether a miscarriage of justice had occurred in the case of George Riley, a man convicted of capital murder, was not in order2". On February 16, 1961, a motion dissenting from the Speaker's ruling as imposing "new, unnecessary and undesirable limitation on the ability of Members to discharge their public duties" was defeated3. On February 28, 1961, the Prime Minister, in an oral answer, declined to take steps to transfer the responsibility for advising on the exercise of the Royal Prerogative from the Home Secretary to a Committee appointed by and responsible to Parliament4.

1. From, (1961) Public Law, pp. 197-198.

2. 634 HC Debates, 214-222.

3. 634 HC Debates, 1773-1841.

4. 635 HC Debates, 1370-1371.

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