Shields, R (on the application of) v Secretary of State for Justice

Factual and Procedural Background

At approximately 5:30 a.m. on 30th May 2005, an incident involving English football fans occurred at a diner in Bulgaria, resulting in serious head injuries to a barman. Several individuals were arrested in connection with the assault, including the Plaintiff. The Plaintiff was charged, tried, and convicted in Bulgaria of attempted murder and sentenced to 15 years imprisonment, later reduced to 10 years, along with an order to pay compensation. Other defendants received lesser convictions or were released without charge.

The Plaintiff consistently denied involvement, providing alibi evidence rejected at trial, and denied association with the other arrested men. One co-defendant later confessed to being the assailant, a confession considered and rejected by Bulgarian appellate courts. Additional circumstantial evidence supporting the Plaintiff’s innocence exists but has not been judicially considered in Bulgaria, with executive authorities declining further review.

After exhausting appeals in Bulgaria, the Plaintiff was repatriated to the United Kingdom to serve the remainder of the sentence. A lie detector test conducted in prison supported the Plaintiff’s claim of non-involvement. Despite public campaigns and diplomatic efforts to persuade Bulgarian authorities to reconsider, no reopening of the case was granted. The Bulgarian authorities indicated that the UK has the power to grant a pardon under the international Convention governing prisoner transfers.

The Plaintiff requested the Secretary of State to exercise the Royal Prerogative of Pardon. The Secretary of State declined, relying on legal advice that the relevant legislation and the international Convention preclude granting a pardon in cases alleging miscarriage of justice due to the Convention’s Article 13. The Plaintiff seeks judicial review of this decision, focusing on whether the Secretary of State is legally barred from granting a pardon under the Convention.

Legal Issues Presented

1. Whether Article 13 of the Convention on the Transfer of Sentenced Persons 1983 prevents the Secretary of State from granting a free pardon in transfer cases alleging miscarriage of justice.
2. Whether the Convention has been incorporated into English law such that it affects the Secretary of State’s common law prerogative powers (permission refused on this ground).

Arguments of the Parties

Appellant's Arguments

• The Prerogative Power of Mercy is a flexible constitutional safeguard available to the executive to mitigate the effects of a conviction without reviewing the merits of the judicial decision.
• Article 12 of the Convention explicitly allows the administering State to grant pardon according to its constitution or laws, separate and unqualified by Article 13.
• The Secretary of State has jurisdiction to consider moral and technical innocence based on all known facts, including fresh evidence not considered by the sentencing State’s courts.
• Article 13 restricts judicial review of the sentencing State’s judgment to that State alone but does not preclude executive pardon decisions.
• Refusing pardon jurisdiction in transfer cases would create discrimination between domestically convicted and repatriated prisoners.

Respondent's Arguments

• Free pardons have traditionally been reserved for cases where the Secretary of State is satisfied of both moral and technical innocence.
• Granting a pardon in this case would require a detailed review of evidence and the judgment of the Bulgarian courts, which Article 13 prohibits.
• The Convention distinguishes between executive acts (Article 12) and judicial review (Article 13); however, any pardon necessarily involves reviewing the merits of the conviction, thus constituting a review of judgment.
• The humanitarian purpose of the Convention would be undermined if administering States did not respect sentencing States’ court judgments.
• The Secretary of State has no jurisdiction to grant a free pardon in transfer cases as it would conflict with Article 13.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Carmona [2006] 1 WLR 2264	International instruments should be given effect domestically, and courts should not act inconsistently with such instruments.	Used by analogy to support the view that the Secretary of State must comply with international obligations under the Convention.
R v Home Secretary, ex parte Bentley [1994] QB 349	The Royal Prerogative of Mercy is a flexible constitutional safeguard, including conditional and free pardons, and is subject to judicial review.	Guided the court’s understanding of the prerogative’s scope and the circumstances in which pardons may be granted, including miscarriages of justice.
R v Foster (1984) 79 Cr. App. R 61	A free pardon removes all penalties arising from conviction but does not quash the conviction itself.	Clarified the effect of a free pardon and the constitutional limits of the prerogative of mercy.
Burt v. Governor-General [1992] 3 N.Z.L.R. 672	The prerogative of mercy is a constitutional safeguard against mistakes, not an arbitrary monarchical right.	Supported the view that the prerogative is flexible and adaptable to circumstances, including posthumous conditional pardons.

Court's Reasoning and Analysis

The court examined the interplay between Articles 12 and 13 of the 1983 Convention, which respectively address the power to grant pardons by the administering State and the exclusive right of the sentencing State to review judgments. The court found that these Articles stand independently and neither qualifies the other.

Article 12 permits the administering State to grant pardons according to its laws, which in this jurisdiction includes the Royal Prerogative of Mercy. Article 13 reserves judicial review of the sentencing judgment to the sentencing State’s courts.

The court held that the Secretary of State’s prerogative to grant a pardon is an executive function distinct from judicial review. Granting a pardon does not equate to reviewing or overturning the foreign court’s judgment but mitigates the effects of the sentence.

The court drew on the precedent that a free pardon removes penalties but does not quash convictions, and that the prerogative of mercy is a flexible safeguard for rare cases where justice cannot be achieved through courts.

It was acknowledged that fresh evidence not considered by the sentencing State’s courts might justify a pardon without constituting a review of the judgment. The court concluded that the Secretary of State does have jurisdiction under Article 12 to consider a pardon in such circumstances, even though the Bulgarian judicial process is concluded and the executive in Bulgaria declined to reopen the case.

The court rejected the submission that the Secretary of State is precluded by Article 13 from granting a pardon, finding that Article 13 applies to judicial review and not to executive pardon decisions.

Holding and Implications

The court UPHELD the judicial review claim and declared that the Secretary of State does have the power and jurisdiction to consider granting a pardon under Article 12 of the Convention in transfer cases, notwithstanding Article 13.

This decision means that the Secretary of State’s prior conclusion that Article 13 precludes the exercise of the prerogative of pardon was incorrect. The ruling allows the Secretary of State to consider pardon requests on their merits, including cases involving fresh evidence not reviewed by the sentencing State’s courts. The court did not set new precedent on the exercise of the prerogative itself but clarified its compatibility with international obligations under the Convention.