Pardons for suffragettes

A suffragette being arrested in 1914

We are approaching the one hundredth anniversary of women first winning the right to vote, albeit in 1918 only land-owning women aged over 30 were to be given the right to vote.

The right to vote was won by campaigners who fought, often literally, for the rights of women. Many women were arrested, tried and convicted of criminal offences in respect of their protests and now, a century later, there are calls for them to be pardoned for their crimes as homosexual men were for theirs. Amber Rudd has promised only today that she will look at individual cases. But, what is a pardon?

Strictly speaking, a pardon is an exercise of the Royal prerogative of mercy. It does not expunge a conviction, nor does it mean that the person pardoned was not guilty of an offence. A pardon simply removes from the convicted person all penalties and punishments arising from the conviction. In ye olden days it was thus a legal instrument used by the monarch to save a person sentenced to death from the gallows. Today the Royal prerogative is exercised by the executive arm of government rather than the monarch, although amusingly in Commonwealth nations, such as Canada, Australia and New Zealand, the power is exercised by the Governor-General, who is the Queen’s representative, on the advice of the national government.

On the 18^th February 1977, a 10-year-old girl was raped. On the 29^th April 1977, a second 10-year-old girl was the subject of an attempted rape. The police arrested Barry Foster for the offence and he subsequently confessed while being interviewed by the police. He was charged with four counts: rape, attempted buggery, indecent assault and attempted rape. On the 7^th November 1977, Mr Foster appeared before the Crown Court sitting at Nottingham where he entered guilty pleas to the rape and attempted rape plus not guilty pleas to the indecent assault and attempted buggery charges. No trial took place and the two outstanding charges were ordered to lie on file not to be proceeded with without leave of the Court of Appeal, which means that they simply exist as charges but with no active proceedings ongoing.

All sounds simple so far? But there was just one small problem, you see Mr Foster didn’t commit the offences! A prolific criminal and known sex offender, Denzil Pearce, did. Why had Mr Foster confessed? I don’t know but I do note that he was described by the Court of Appeal as “a man of low intelligence… who lived with his mother”, which may go someway towards explaining why he would suddenly confess to such serious crimes. We know that Pearce was the offender not Mr Foster because he did eventually confess to committing them and his confession was in such detail that only the offender could possibly have made it. Pearce only confessed to the rape, indecent assault and attempted buggery. He did not confess to the attempted rape.

Following Pearce’s confession, a pardon was granted to Mr Foster in respect of the rape but not in respect of the attempted rape.

Although he had been pardoned for the rape, Mr Foster remained convicted of both the rape and attempted rape. By 1984 he now denied having committed either offence. An appeal was brought where it was argued that the evidence was overwhelming that he had not committed the rape and that “[s]eeing that the confession made to the police under count 1 was obviously untruthful, it passes belief that the confession under count 4 is truthful.”

The Court of Appeal agreed and quashed both convictions – incidentally they also agreed to allow one of their members to immediately sit as a Crown Court whereupon he directed not guilty verdicts on the two counts left to lie on file.

Now we know for sure that R. v Barry Arthur Foster (1984) 79 Cr. App. R. 61 is good authority for the fact that a Royal pardon does not mean that the conviction is quashed.

But, the British constitution is a difficult and slippery thing – the legal equivalent of trying to hold a pint of water in your hand without a glass. Under our glorious constitution, Parliament is supreme, so it can make or unmake any law it fancies. This means it can also issue pardons via Act of Parliament and, since it can do anything, Parliament can make its pardons mean anything is likes.

The Policing and Crime Act 2017 has several important aims, some might say its most important aim is the abolition of traffic wardens, but it also aims to provide for collaboration between emergency services, the handling of police complaints, the disbandment of the Association of Chief Police Officers and so on. But, sections 164 and 165 grants statutory pardons to people who were convicted of various sexual offences that have since ceased being crimes. Essentially, it pardons men convicted for being homosexual.

Unlike a Royal pardon those granted by the 2017 Act for all intents and purposes overrule the decisions of the convicting courts. It gets a little complicated (or boring if you prefer), but the 2017 Act invokes powers created in the Protection of Freedoms Act 2012 to disregard convictions and cautions. The effect of a disregard is the obliteration of all records concerning the conviction. Section 95 of the 2012 Act requires the Secretary of State to direct the relevant people to delete details, contained in relevant official records, of a disregarded conviction or caution. Upon receipt of the order, the data must be deleted as soon as practicable. Section 96 of the 2012 Act goes further and states that where a conviction or caution is disregarded the person is to be treated not only as if he were never convicted but also as if he had never been charges, prosecuted or cautioned. He is also to be treated as if he never committed the offence at all. In future proceedings, advocates and courts are banned from asking any questions that would elicit evidence of the disregarded proceedings. It also prevents employers from refusing employment, sacking or prejudicing somebody because of the disregarded offence.

We can see therefore, that a Royal pardon would be purely symbolic whereas a statutory pardon could have some limited benefit in so far as descendants could say that the actions of their relatives were not criminal. You can judge the benefit of that for yourself.