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

Article 12 of the Convention on the Transfer of Sentenced Persons 1983 permits the administering state to consider a pardon in accordance with its own constitution and laws. Article 13 reserves to the sentencing state applications for judicial review of the foreign judgment. The two provisions concern different processes and neither qualifies the other. A free pardon may therefore be considered in a transferred-prisoner case where it would not require the administering state to review the correctness of the foreign court’s judgment on the material before it. Exceptional fresh evidence may justify consideration of a pardon, provided the Secretary of State takes the foreign judgment as it stands and does not usurp the functions of the sentencing state’s courts.

Michael Shields was convicted and sentenced in Bulgaria for attempted murder and was later transferred to the United Kingdom to serve the balance of his sentence under the Repatriation of Prisoners Act 1984 and the Convention on the Transfer of Sentenced Persons 1983. After the Bulgarian judicial process had concluded, he asked the Secretary of State to consider exercising the Royal Prerogative of Mercy in light of fresh evidence said to support his innocence.

The Secretary of State refused, deciding that Article 13 of the Convention prevented consideration of a pardon because the application would involve reviewing the Bulgarian judgment. The central issue was whether Article 13 barred the Secretary of State from considering a free pardon under Article 12.

1. The claim succeeded. The Secretary of State’s decision that Article 13 deprived him of power or jurisdiction to consider a pardon was quashed, and a declaration was made that he possessed that power and jurisdiction.
2. The question whether the Convention had been incorporated into domestic law was academic in the circumstances. The United Kingdom had adopted the Convention and was bound to respect its international obligations. The Secretary of State could not ignore those obligations. Permission was refused on the incorporation ground.
3. Articles 12 and 13 stand side by side, and neither is expressed to qualify the other. Article 12 has its natural effect: each state may grant a pardon in accordance with its constitution or other laws. Article 13 concerns an application to a judicial body with power to review, quash or amend the sentencing state’s judgment. Article 12 concerns executive action.
4. The Royal Prerogative of Mercy remains a flexible constitutional safeguard. It may be exercised in rare circumstances to secure justice which concluded court proceedings cannot achieve. A free pardon does not itself eliminate the conviction, but may relieve the person from the penalties flowing from it.
5. The Secretary of State could not use the prerogative merely to substitute his view for that of the Bulgarian courts on the material considered by them. However, consideration of fresh evidence not considered by those courts would not necessarily amount to a review of the Bulgarian judgment for Article 13 purposes, particularly where the evidence established innocence without calling the foreign decision into question.
6. It was open to the Secretary of State to entertain the request. The court did not determine whether a pardon should be granted. In principle, a free pardon would require a conclusion that, taking the Bulgarian judgment as it stood, the fresh evidence, considered alongside the existing material and judgment, justified a finding of moral and technical innocence.

The judgment describes the claimant’s conviction and unsuccessful appeals in the Bulgarian courts, followed by his transfer to the United Kingdom. The present proceedings were a first-instance judicial review in the Administrative Court.