Shields, R (on the application of) v Secretary of State for Justice [2008] EWHC 3102 (Admin)

[2008] EWHC 3102 (Admin)Case No CO/8024/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17/12/2008
Before
PRESIDENT OF THE QUEEN'S BENCH DIVISIONMR JUSTICE MADDISON
Between
R On the Application of MICHAEL SHIELDSClaimantSECRETARY OF STATE FOR JUSTICEDefendant
PETE WEATHERBY and LAURA CAWSEY (instructed by RMNJ) for CLAIMANTJONATHAN SWIFT (instructed by THE TREASURY SOLICITORS) for DEFENDANTHearing Hearing dates: 4 th December 2008
JudgmentPresident of the Queen’s Bench Division:This is the judgment of the CourtFacts
[1]At about 5.30 a.m. on 30th May 2005, English football fans were involved in an incident at the Big Ben diner at Varna in Bulgaria. A barman, Martin Georgiev, was assaulted and sustained serious head injuries. There was a large number of football fans in the resort at the time, on holiday after the European Champions League final in Istanbul. At about 8 a.m. that morning, Bradley Thompson and Graham Sankey were arrested at a nearby hotel in connection with the assault. About 3 hours later, the claimant, Michael Shields, was arrested. Later still a man called Anthony Wilson was arrested.[2]Michael Shields was subsequently charged, tried and convicted in Bulgaria of the attempted murder of Martin Georgiev. He was sentenced to 15 years imprisonment and ordered to pay the equivalent of about £90,000 in compensation. The prison sentence was later reduced to 10 years. Thompson and Wilson were convicted of lesser public order offences. Graham Sankey was released without charge.[3]Michael Shields, who was 18 at the time, vehemently denied any involvement in the incident. He had never been in trouble with the police before. He gave alibi evidence to the trial court, but this was rejected. He also denied being associated in any way with the other three men who were arrested. He was convicted on the basis of identification evidence, whose quality would have been carefully scrutinised in this jurisdiction.[4]Graham Sankey returned to England. He later went to his own solicitor and eventually made a signed confession indicating that he, not Michael Shields, had been the assailant. This confession had not been available at Michael Shields’ trial. It was, however, available to and considered by the Varna Appeal Court, and subsequently by the Supreme Court of Cassation. It appears to have been rejected on grounds, analogous with one or more of those in section 23 of the Criminal Appeal Act 1968, that it would not have afforded grounds for allowing an appeal. In addition to Sankey’s signed confession which the Bulgarian Appeal Courts did have and consider, we are told that there is a significant amount of additional circumstantial evidence which may support Michael Shields’ case that he is innocent of the offence of which he was convicted in Bulgaria. Some of this material has not been judicially considered in Bulgaria, a further application for review of the conviction to the prosecutor’s office, that is to the executive, having been refused.[5]After his unsuccessful appeals against conviction in the Bulgarian courts, Michael Shields was repatriated to this country to serve the balance of his 10 year sentence. The compensation had been raised by public collection. We are told that, in December 2007, Michael Shields with the agreement of the Ministry of Justice, underwent a lie detector test while he was in prison. The results, we are told, supported his contention that he was not at the scene of the attack, let alone part of it.[6]There has been a public campaign of support for what is perceived as a miscarriage of justice. There have been concerted attempts to persuade the Bulgarian authorities to reconsider the matter; but without success. The quality of the identification procedures have been the subject of an unsuccessful application to the European Court of Human Rights. There has been a petition in the European Parliament seeking to require the Bulgarian authorities to deal with the matter. In the course of explaining to the Petitions Committee why the Bulgarian authorities were unwilling to reopen or reinvestigate the case, Mr Tsoni Tsonev, a member of the Bulgarian Supreme Judicial Council, said that the new pieces of evidence did not really prove anything substantial. They merely introduced a doubt.[7]The Secretary of State has written to the Bulgarian Minister of Justice, and he and Bridget Prentice MP have held meetings with her. Both the Foreign Secretary and the United Kingdom Ambassador to Bulgaria have made representations. Both the Bulgarian prosecuting authorities and the executive have declined to intervene, but on a number of occasions have indicated in writing their view that the United Kingdom authorities have power to pardon Michael Shields under Article 12 of the Convention on the Transfer of Sentenced Persons 1983, to which we shall refer later in this judgment.[8]It is evident that the Bulgarian judicial process is at an end. Michael Shields is serving in this country a sentence of imprisonment imposed upon him in Bulgaria upon his due conviction there.[9]When the Bulgarian judicial and executive position had become clear, Michael Shields’ representatives asked the Secretary of State to exercise for him the Royal Prerogative of Pardon. The Secretary of State, upon taking legal advice, declined to do so, giving his reasons in a letter dated 17th July 2008. The Secretary of State maintained that the Repatriation of Prisoners Act 1984 and the Convention on the Transfer of Sentenced Persons 1983 preclude the granting of a pardon in transfer cases where the exercise would relate to an alleged miscarriage of justice, because that would be contrary to Article 13 of the Convention. It is of this decision that Michael Shields seeks judicial review.[10]It should be emphasised that the Secretary of State has not expressed any view as to the merits of granting a pardon. He has only decided on advice that he has no power to grant a free pardon. The issue before this court is therefore a pure question of law, that is whether the Secretary of State is correctly advised that Article 13 of the 1983 Convention prevents him from granting a free pardon, if he were otherwise minded to do so.

The 1984 Act and the 1983 Convention

[11]Michael Shields is detained in the United Kingdom under the Repatriation of Prisoners Act 1984. Section 1(1) of the 1984 Act provides: “Subject to the following provisions of this section where –(a) the United Kingdom is a party to international arrangements providing for the transfer between the United Kingdom and a country or territory outside the British Islands of persons to whom subsection (7) below applies, and(b) the relevant Minister and the appropriate authority of that country or territory have each agreed to the transfer under those arrangements of a particular person (in this Act referred to as the “prisoner”), and(c) the prisoner has consented to being transferred in accordance with those arrangements, The relevant Minister shall issue a warrant providing for the transfer of the prisoner in or out of the United Kingdom.” (a) the United Kingdom is a party to international arrangements providing for the transfer between the United Kingdom and a country or territory outside the British Islands of persons to whom subsection (7) below applies, and (b) the relevant Minister and the appropriate authority of that country or territory have each agreed to the transfer under those arrangements of a particular person (in this Act referred to as the “prisoner”), and (c) the prisoner has consented to being transferred in accordance with those arrangements,[12]Section 3(1) of the 1984 Act provides:
“The effect of a warrant providing for the transfer of the prisoner into the United Kingdom shall be to authorise – … (c) the detention of the prisoner in any part of the United Kingdom in accordance with such provisions as may be contained in the warrant, being provisions appearing to the relevant Minister to be appropriate for giving effect to the international arrangements in accordance with which the prisoner is transferred.” … (c) the detention of the prisoner in any part of the United Kingdom in accordance with such provisions as may be contained in the warrant, being provisions appearing to the relevant Minister to be appropriate for giving effect to the international arrangements in accordance with which the prisoner is transferred.”
[13]Michael Shields’ detention thus depends on the provisions of the warrant made under section 1 of the 1984 Act which gives effect to the international arrangements made between the United Kingdom and Bulgaria. The relevant international arrangements are those in the 1983 Convention.[14]Article 9 of the 1983 Convention provides that the State to which the sentenced prisoner is transferred must either continue the enforcement of the sentence under the conditions set out in Article 10, or convert the sentence under the conditions set out in Article 11. In this case, the United Kingdom authorities are continuing to enforce the Bulgarian sentence of 10 years imprisonment. Article 9.3 provides that the enforcement of the sentence shall be governed by the law of the administering State and that State alone shall be competent to take all appropriate decisions. The terms of Article 11 state that in effecting a conversion of the sentence, the administering State shall be bound by the findings of fact in so far as they appear explicitly or implicitly from the judgment imposed by the sentencing State.[15]Article 12 of the Convention is headed “Pardon, amnesty, commutation”. It provides:
“Each Party may grant pardon, amnesty or commutation of the sentence in accordance with its Constitution or other laws.”
Article 13 of the Convention is headed “Review of judgment”. It provides:
“The sentencing State alone shall have the right to decide on any application for review of the judgment.” “Sentence” and “judgment” are both defined in Article 1, indicating an explicit difference. “Judgment” is defined as “a decision or order of a court imposing a sentence”
. There are passages in a lengthy Explanatory Report published by the Council of Europe explaining a humanitarian object of the Convention to enforce sentences in the home country of the person concerned. The Report indicates that, where the administering state continues to enforce the sentence, it is bound by the legal nature as well as the duration of the sentence determined by the sentencing state; that it is bound by the findings of fact as they appear, explicitly or implicitly, from the judgment pronounced in the sentencing state; that it has no freedom to evaluate differently the facts on which the judgment is based; and, as to Article 13, that the sentencing state alone is competent to re-examine the materiality of the facts, especially as it is better placed to obtain new material on the point in issue. It is said that the term “review” in Article 13 covers also the proceedings which in some states may result in a new examination of the legal aspects of the case after the judgment has become final.

Grounds for judicial review

[16]There are two grounds for judicial review. Mr Shields has permission to advance one of them, but not the other. The ground for which permission has been given is that the Secretary of State was wrong to conclude upon advice that Article 13 of the Convention precluded him from exercising the Prerogative to Pardon. The ground for which permission was not given, but for which the application is renewed, is that the Convention has not been incorporated into English law, and an unincorporated international Convention cannot extinguish a common law power or jurisdiction to exercise a Royal Prerogative.

Is the Convention incorporated?

[17]In our judgment, the question whether the Convention is incorporated so that its very words become part of English statute law is a distraction. The argument on behalf of Mr Shields is that the Convention is not expressly incorporated, nor made a Schedule to the 1984 Act, and that the references in that Act to international arrangements providing for the transfer of prisoners are descriptive only and insufficient to effect incorporation. Contemporary Ministerial explanation in Parliament is said to support this. The argument for the Secretary of State is that the proper construction of the 1984 Act requires the Secretary of State to give effect to international arrangements, which in this case is the 1983 Convention. The 1984 Act is the code which governs repatriation. If that means that the common law is modified, then it is modified.[18]We do not consider that it is necessary to decide this question. It is a distraction because the United Kingdom has adopted the Convention and adheres to it, and the Secretary of State, as the executive, has international obligations to comply with the Convention and a duty to respect those obligations in matters concerning foreign states. The Secretary of State therefore cannot and will not ignore such obligations in any consideration of Mr Shields’ case. The Secretary of State in fact adopts the position that he is bound to act in accordance with the Convention; and we prefer to adopt by analogy the position of this court in R v Carmona [2006] 1 WLR 2264. That case concerned questions relating to the deportation of EC nationals, as to which Directive 2004/38/EC was about to come into force. There was something of a question whether the Directive applied to a court deciding to make a recommendation for deportation, as distinct from the Secretary of State deciding to order deportation. The view in Carmona, was that, for the reasons given in paragraph 3 of the judgment, it would not be right for a court to make a recommendation for deportation when the Directive precludes actual deportation. In that case the international instrument was to be imported domestically. But, in our view, the analogy is quite close. In the present case, the Secretary of State will not for very good reason ignore the United Kingdom’s international obligations, so that the question whether the Convention is incorporated is academic only. This means that the only question of substance is that for which Mr Shields has been given permission. Technically we refuse permission on the incorporation ground.

The prerogative of pardon

[19]A pardon is a common law extra-judicial power exercised by the Crown under the Royal Prerogative of Mercy. It is exercised by the Secretary of State for Justice as the Minister responsible for those in detention. In modern times, the Prerogative has been exercised in at least three situations, and Mr Weatherby, for Mr Shields, submits that it is a flexible constitutional safeguard which can be adapted to particular situations. First, there is special remission, as where the prison authorities miscalculate a release date or release a prisoner early by mistake. Second, there is conditional pardon, of which commutation of a death sentence was an example – see R v Home Secretary, ex parte Bentley [1994] QB 349, where the penalty was posthumously recognised not to have been commensurate with the offending. Third, there is free pardon, which may relate to miscarriages of justice. It has rarely been exercised since the Criminal Appeal Act 1907. Furthermore, the establishment of the Criminal Cases Review Commission under the Criminal Appeal Act 1995 means that miscarriages of justice within the United Kingdom are almost always dealt with through the Commission’s power to refer the safety of a conviction to the Court of Appeal Criminal Division. However, the prerogative to grant a free pardon undoubtedly remains, as was made plain in Bentley – and see also section 16 of the 1995 Act, which provides for the Commission to give assistance to the Secretary of State in connection with the Prerogative of Mercy.[20]In R v Foster (1984) 79 Cr. App. R 61, it was held that the effect of a free pardon was to remove from the subject of the pardon “all pains, penalties and punishments whatsoever that from the said conviction may ensue”, but not to eliminate the conviction itself. Watkins LJ said at page 71 that counsel “… has reminded us that constitutionally the Crown no longer has a prerogative of justice, but only a prerogative of mercy. It cannot, therefore, he submits, remove a conviction but only pardon its effects. The Court of Appeal (Criminal Division) is the only body which has statutory power to quash a conviction. With that we entirely agree.”[21]The facts in Bentley are well known and are in short summary as follows. Bentley and a co-defendant were convicted in December 1952 of murdering a police officer. The jury recommended mercy. The prosecution case was that they had been engaged in a joint criminal enterprise and that the co-defendant had fired the fatal shot after Bentley, who by then was under arrest, had shouted “let him have it, Chris.” Bentley, then aged 19, was sentenced to death and the co-defendant, aged 16, was ordered to be detained at Her Majesty’s pleasure. Immediately after the trial the judge wrote to the then Home Secretary stating that he could find no mitigating circumstances in Bentley’s case. Despite widespread protests and against the advice of civil servants, the Home Secretary refused to reprieve Bentley, who was hanged in January 1953. Following a campaign by Bentley’s brother for a posthumous pardon, the case was reviewed by the Home Secretary who concluded in October 1992 that there were no grounds for recommending a free pardon, on the basis that he could not simply substitute his judgment for that of the then Home Secretary, and that it had been the long established policy of successive Home Secretaries that a free pardon in relation to a conviction for an indictable offence should be granted only if the moral as well as technical innocence of the convicted person could be established, which was not possible in Bentley’s case. It was held that there were circumstances in which decisions taken under the Royal Prerogative were susceptible to judicial review. It was further held that the Royal Prerogative of Mercy was a broad and flexible constitutional safeguard against mistakes encompassing conditional as well as free pardons; and that, where it was necessary to recognise that a death sentence which had been carried out should have been commuted to life imprisonment there was no objection in principle to the grant of a posthumous conditional pardon. It was held that the Home Secretary had not given sufficient consideration to the possibility of granting a form of pardon suitable to the circumstances of the case.[22]It was submitted to the court in Bentley by counsel for the Secretary of State that a free pardon does not remove the conviction itself because of the constitutional doctrine that the Sovereign cannot exercise judicial power except through her courts, the Royal Prerogative of justice having been abolished in the 17th century. The crucial question was, given that the effect of a free pardon will be to relieve a person from all penalties flowing from his conviction, in what circumstances should the Secretary of State interfere with the legal system in this way. The Prerogative of Mercy starts where the law finishes. When a lawful conviction and sentence have been arrived at, the convicted person can appeal to the mercy of the Crown.[23]Giving the judgment of the court, Watkins LJ referred without disapproval to an affidavit of Mr Wilson, an Assistant Under-Secretary of State and Head of the Criminal Policy Department in the Home Office at the time. Mr Wilson had stated that successive Home Secretaries had continued to play a significant part in the correction of miscarriages of justice. Pardon had remained an option in exceptional cases where a reference to the Court of Appeal was not practicable, for example where relevant material was not admissible in evidence. It is also used in summary cases, largely because there is, in these cases, no power in the Home Secretary to make a reference to an appellate court. There had only been one posthumous free pardon in modern times. That was granted to Timothy Evans in 1966. A free pardon was granted in that case because, so Mr Wilson stated, the Home Secretary of the day considered the conviction itself to be wrong. The pardon had, therefore, been established as a remedy for wrongful conviction.[24]Watkins LJ said at page 364E:
“We understand the strength of the argument that, despite the fact that a free pardon does not eliminate the conviction, a grant of a free pardon should be reserved for cases where it can be established that the convicted person was morally and technically innocent. Furthermore, the policy of confining the grant of a free pardon to such cases has been followed by successive Secretaries of State for over a century. We therefore propose to set aside any question of a free (or full) pardon and look at the matter afresh.”
It was clear that one of the ways in which the Prerogative of Mercy could be exercised was by the grant of a conditional pardon. Watkins LJ then said at page 365B:
“These questions, therefore, arise. (a) Is there any objection in principle to the grant of a posthumous conditional pardon? (b) Was the Home Secretary in error in failing to consider the grant of a conditional pardon in this case? On the first question it may be objected that a conditional pardon is inappropriate where the full penalty has already been paid. The answer to this objection, however, is that it is an error to regard the prerogative of mercy as a prerogative right which is only exercisable in cases which fall into specific categories. The prerogative is a flexible power and its exercise can and should be adapted to meet the circumstances of the particular case. We would adopt the language used by the Court of Appeal in New Zealand in Burt v. Governor-General [1992] 3 N.Z.L.R. 672, 681: “the prerogative of mercy [can no longer be regarded as] no more than an arbitrary monarchical right of grace and favour.”
It is now a constitutional safeguard against mistakes. It follows, therefore, that, in our view, there is no objection in principle to the grant of a posthumous conditional pardon where a death sentence has already been carried out. The grant of such a pardon is a recognition by the state that a mistake was made and that a reprieve should have been granted.”

Submissions

[25]Mr Weatherby submits that the Prerogative Power of Mercy is a flexible one, rarely used in this jurisdiction if only because of the existence of the Criminal Cases Review Commission, but available to the executive to remove the effect, but not the fact, of a judicial finding. Article 12 of the Convention explicitly entitles the administering State to grant pardon in accordance with the United Kingdom constitution or other laws. A pardon has the effect of mitigating the effect of the sentence, but does not affect the fact of the conviction nor require a review of it. Article 12 is separate from Article 13 and not expressed to be subject to or qualified by it. The Secretary of State has jurisdiction to consider whether the claimant is morally and technically innocent taking into account all facts known at the stage at which he considers the question. The prerogative to grant a free pardon is, he submits, a constitutional backstop intended to sweep up those very few cases where the normal judicial process cannot achieve a just result. The effect of Article 13 is that the judgment of the Bulgarian court can only be reviewed in Bulgaria, and the executive in this jurisdiction cannot interfere with the judgment of the Bulgarian court. But it can make an executive decision under the prerogative. It would, said Mr Weatherby, be quite unconscionable for the Secretary of State to allow a prisoner known to be innocent to remain in prison. In this context, Article 13 merely reflects the existing United Kingdom position. The Secretary of State never has jurisdiction to review the merits of a court judgment. The question for the Secretary of State is whether on all the available material there has been an injustice such that Mr Shields is morally and technically innocent. Whether or not the Bulgarian Court reached a wrong conclusion on the material before it is irrelevant. If this were not so, there would be unacceptable discrimination between domestically convicted and repatriated prisoners.[26]Mr Swift, for the Secretary of State, submits that, as a matter of long standing policy, free pardons have been reserved for cases in which the Secretary of State is satisfied that the person concerned is both morally and technically innocent of the crime. It is not in dispute in this case that the formulation of criteria for the exercise of the prerogative to pardon are entirely matters of policy for the Secretary of State. Mr Swift submits that in this case any exercise of the prerogative to pardon would entail a detailed review by the Secretary of State of the evidence in order to satisfy himself whether Mr Shields was both morally and technically innocent so that there had been an injustice. In accordance with Article 13 of the Convention, Bulgaria alone has the right to review the judgment of the Bulgarian court by which Mr Shields was convicted and sentenced. The Secretary of State simply could not review the substantive merits of the case, with a view to deciding whether he was satisfied that Mr Shields was both morally and technically innocent, without reviewing the judgment of the Bulgarian court as well as the subsequent decisions of the Bulgarian appeal courts and the prosecutor.[27]The judgment in Bentley, referring to the case of Timothy Evans in 1966, did record evidence on behalf of the Home Secretary that the pardon has been established as a remedy for wrongful convictions. But it could not be used in the present case to say that Mr Shields’ conviction was wrongful, because that would offend Article 13 of the Convention. The Secretary of State could not address fresh material not considered judicially in Bulgaria with a view to considering whether Mr Shields is morally and technically innocent without making an assessment of the effect of the new material on the judgment of the Bulgarian court, thereby reviewing it.[28]As to the construction of Article 13 of the Convention, Mr Swift submits that the Convention draws a distinction between decisions which do not depend on the merits of the conviction being called in question, and decisions to release which would follow reconsideration of the merits of the conviction. The first is the subject of Article 12 of the Convention, the second the subject of Article 13. This distinction is supported, he says, by the Explanatory Report to which we have referred. Mr Swift suggests that the distinction suggested on behalf of Michael Shields, that Article 12 extends to all executive acts, and that Article 13 extends only to judicial acts, has no basis in the language of the Convention. It is a distinction that is inconsistent with the clear intention that the transfer of a sentenced prisoner from the sentencing State to the administering State should not result in a review by the administering State of the merits of conviction. The administering State is responsible for the enforcement of the sentence. The sentencing State has the sole right to determine any review of the judgment. Since considering a free pardon will always involve a review of the merits of the underlying conviction, the effect of Article 13 is that the Secretary of State does not have jurisdiction to grant a free pardon in a transfer case. A free pardon would always and inevitably offend Article 13. Mr Swift went so far as to submit that circumstances cannot be conceived in which a free pardon could be considered without reviewing the judgment of the foreign court. Pardon, he says, is not a term of art. It appears here in a Convention which is capable of applying in a large number of different jurisdictions in which the term will not always have exactly the same constitutional effect.[29]Mr Swift submits that the clear purpose of the Convention is humanitarian, so that convicted prisoners may serve their sentences in their own country. Its international acceptability would be undermined if sentencing States did not respect the judgments of the courts of sentencing States.

Discussion and decision

[30]It is, in our view, significant that Articles 12 and 13 of the Convention stand side by side and that neither is expressed to be subject to or qualified by the other. This leads to an initial expectation that Article 12 in particular should have its natural and unqualified effect, such that each state may grant pardon in accordance with its constitution or other laws. On the face of it, that would enable the Secretary of State to consider granting pardon in circumstances where there would be constitutional power to do so in this jurisdiction if the sentence were a sentence passed by a court in the United Kingdom. Mr Swift’s submission that the Secretary of State could never grant a pardon in the case of a transferred prisoner is, to say the least, surprising in the light of the unqualified words of Article 12, and since the whole subject matter of the Convention is the transfer of sentenced prisoners. If the submission were correct, it would strip the word “pardon” of most of its content, at least in this jurisdiction; and Mr Swift made no more than general reference to the possibility that other States might have executive power under which pardon had a somewhat different impact and effect. In this jurisdiction, the first and main meaning of pardon granted under the Royal Prerogative is a free pardon. It would be surprising if the effect of Article 13 was to strip pardon of its main content without attempting to make this clear within two short Articles which are next door to each other.[31]The meaning and effect of Article 13 is, in our view, clear. “Judgment” is a decision of a court imposing a sentence; and an “application for review of the judgment” must be an application to a judicial body with power to review the judgment and, if so persuaded, to alter it. In effect, this means an application to a court, and a “review” would embrace an appeal or a judicial review process capable of quashing or amending the judgment. Thus, in our judgment, Mr Weatherby is correct in his submission that Article 13 embraces judicial process and Article 12 executive process.[32]It is helpful, we think, to consider what the relevant position is if a person is both convicted and sentenced in this jurisdiction. An application to appeal or review the conviction is a matter within the statutory and constitutional ambit of criminal appeal courts, in serious cases the Court of Appeal Criminal Division. If an appeal is brought and fails in the CACD (and there is no appeal to the House of Lords, or such an appeal fails), the Secretary of State would not – leaving aside the case of Timothy Evans – now consider granting pardon on the ground that the CACD reached a wrong decision on the material before it. If subsequently there were a reference to the CACD by the Criminal Cases Review Commission under the Criminal Appeal Act 1995 and the CACD dismissed the resulting appeal, the same would apply. In neither case could the Secretary of State conclude that the prisoner was morally and technically innocent without usurping the constitutional functions of the courts.[33]But pardon remains a flexible process intended in very rare cases to secure justice which the concluded court process cannot achieve. And rare circumstances could be conceived in which this could occur where, for instance, fresh evidence was available which was, or would be, inadmissible or not capable of being given in court proceedings. Such was the example tendered on behalf of the Secretary of State in Bentley at page 358C. A resulting decision by the Secretary of State that the prisoner was morally and technically innocent and a further decision to grant pardon might or might not involve assessing the fresh evidence in the light of the evidence available to, and the decision of, the CACD. There might, for instance, be a surveillance video unavailable to or inadmissible before the court, which established without argument that the prisoner did not commit the crime of which he had been convicted. If it were, however, necessary to consider the fresh evidence in the light of the evidence before and the decision of the courts, that would not, in our judgment, constitute a review of the judgment of the sentencing court in the sense that this expression is used in Article 13. There would be no application for such a review and the process would not call in question the decision of the sentencing court on the material before it.[34]In the light of these matters, we consider that the Secretary of State does have a power under Article 12 of the Convention to consider at least granting pardon to Michael Shields on the facts presented to this court. As we have said, the Bulgarian judicial process is concluded, and the question may be addressed analogously with a concluded appeal process in this jurisdiction where a reference by the Criminal Cases Review Commission was not available, as it is not in Michael Shields’ case. We are told that there is fresh evidence, which has not been considered by the Bulgarian Courts, in part because the Bulgarian prosecuting authorities (the executive) decided not to take the matter further. It should be said that the fresh evidence here does not apparently include Graham Sankey’s confession, because that has been considered by Bulgarian appeal courts. It is, in our judgment, open to the Secretary of State to entertain a request to exercise the Royal Prerogative. It is not for this court to say whether or how it might be exercised. In principle, however, the grant of a free pardon would appear to require a conclusion that, taking the Bulgarian courts’ judgment for what it is and without calling in question its correctness on the material which those courts considered, fresh evidence which the Bulgarian courts did not consider, taken with the material which they did consider and their judgment upon it, justifies a conclusion that Michael Shields is morally and technically innocent.[35]For these reasons, we would uphold the claim for judicial review of the Secretary of State’s decision on 17th July 2008 that he does not have power or jurisdiction to consider the grant of a pardon because he is constrained from doing so by Article 13 of the Convention; and we declare that he does have such power and jurisdiction.

Cited in 1 later judgment