A woman serving a 10-year sentence in France is to be released after spending three years in prison by order of the French president. Jacqueline Sauvage had been convicted of killing her husband after suffering years of abuse at his hands.
The announcement from the presidential palace in Paris said that President François Hollande was acting under article 17 of the French constitution, and after receiving advice from the justice ministry. Article 17 states simply that the president “is vested with the power to grant individual pardons”.
We can have every sympathy for Sauvage, who appears to have been the victim of what we would regard as battered woman syndrome. Despite that, the idea of a politician overturning the decision of a court may still make us feel uncomfortable.
Was Hollande respecting public opinion in France when he set Sauvage free? After all, she is hardly likely to kill again; and other women pushed beyond endurance are unlikely to be deterred by the prospect of prison. Or was the president trying to curry favour with the electorate ahead of presidential elections next year? Perhaps it was both.
The US constitution grants the president the power “to grant reprieves and pardons for offences against the United States, except in cases of impeachment”. Even so, I was far from comfortable with Bill Clinton’s decision to pardon 140 people in the two hours before he ceased to be US president 15 years ago. And yet, as the Guardian reported at the time, Clinton was not the only president to let questionable figures off the hook. Perhaps the most notorious was Gerald Ford, who pardoned his predecessor, Richard Nixon, in 1974. These pardons relate to federal crimes. But most US governors have the power to grant state pardons, in some cases replacing the death penalty with one of imprisonment.
There is a crucial difference between the powers of a democratic president or governor and those of a despot, however. In a democracy, the head of state can only reduce or remit a prison sentence; in a tyranny, the despot can impose or increase a sentence as well.
A pardon is essentially a form of clemency. That idea is well illustrated by the modern form of a royal pardon in the United Kingdom. It recites that the sovereign is “graciously pleased” to extend her “grace and mercy” to the individual who is to be pardoned. The power now found in written constitutions has been exercised by monarchs since time immemorial. In the UK, it remains part of the prerogative powers.
As the government explained in 2013, in the case of the wartime codebreaker Alan Turing who was convicted of homosexual activity in 1952, the justice secretary can ask the Queen to grant a pardon under the royal prerogative of mercy for civilians convicted in England and Wales. Similar powers are exercised by ministers in Scotland and Northern Ireland, as well as by the defence secretary.
The Ministry of Justice said that a pardon was normally granted only when an individual was “innocent” of the offence concerned and where a request had been made by someone with a vested interest, such as a family member. However, a posthumous pardon was granted to Turing, who helped break the Germans’ Enigma code, even though neither requirement had been met in his case, reflecting what ministers regarded as the “unique nature” of his achievements. One of the great advantages of exercising prerogative powers under an uncodified constitution is that ministers can make up the rules as they go along.
In English law, though, a pardon does not quash a conviction. It merely releases the recipient from “all pains, penalties and punishments whatsoever that from the said conviction may ensure”. So even though Derek Bentley was pardoned in 1993, 40 years after he was hanged for murder, it was not until 1998 that his conviction was quashed by the court of appeal. The then lord chief justice, Lord Bingham, said that the summing up by his predecessor Lord Goddard had denied Bentley “that fair trial which is the birthright of every British citizen”.
Pardons used to be granted when a lot of people had been wrongly convicted of a motoring offence because of some technical error – a wrongly positioned road sign, for example. But despite the administrative convenience, issuing a mass pardon amounted to sweeping that error under the carpet.
Miscarriages of justice, when they occur, should be put right by the courts. And if the courts get it wrong – on sentencing, for example – then parliament should put them right. But ministers must not usurp the role of the judges. Even so, there are times when only a pardon will do. It is a longstop for use when the rest of the criminal justice system fails. But they should be granted sparingly – if at all.