Brushing off moral case for pardon of Alan Turing may well turn into a legal case

Guest Contributor - 4th January 2013

In this post human rights specialists and Alex Bailin QC of Matrix Chambers and John Halford of Bindmans LLP warn that if the government continues to brush off the moral case for Alan Turing to be pardoned, it may well face a legal one.

Alan Turing was a brilliant mathematician and logician who led a team of dedicated code breakers in Bletchley Park during WWII. His team’s work helped crack the Enigma machine. Without them Britain may not have defeated the Nazis.

But Turing’s treatment shortly after the war by the very country he helped save was appalling and something needs to be done about it. If Parliament lacks the will, then the courts may have to step in.

Turing was prosecuted in 1952 for consensual homosexual acts under section 11 of the Criminal Law Amendment Act 1885 which criminalised ‘gross indecency’ between men – the very same law used to prosecute Oscar Wilde at the end of the nineteenth century.  To avoid prison, Turing was forced to agree to chemical castration – a series of injections of synthetic female hormones resulting in impotence and gynecomastia. Within months of beginning the hormone treatment, he committed suicide by eating an apple laced with cyanide – Turing had been fascinated by a similar scene in the Snow White fairy tale.

2012 was the centenary of his birth and this prompted widespread calls a posthumous pardon including a recent request spearheaded by Stephen Hawking.  But Turing’s champions had been rebuffed before. A 2009 e-petition supported by thousands called for an apology. Prime Minister Gordon Brown said he was “deeply sorry” but left the conviction intact.  A second e-petition demanding a posthumous pardon attracted tens of thousands of signatures. Such pardons are nothing new: they have been granted in 1998 to Derek Bentley, in 2006 to shell-shocked soldiers convicted of desertion and in 2012 by the Irish Republic to WWII deserters. But Lord McNally (Minister of State for Justice) rejected this, arguing Turing was “properly convicted of what at the time was a criminal offence”.  A private members’ bill has hit the buffers.

What could make all the difference now is a shift in the legal position. Pardons are bestowed (or withheld) using the Royal Prerogative and the courts will normally not interfere with its exercise. Nevertheless, even this discretion has to be exercised in a rational way, taking account of relevant factors, including the way materially similar cases are being dealt with.

And were Turing alive, the petitions would receive a very different response. Under section 92 of the Protection of Freedoms Act 2012 a person may apply for their conviction under anti-homosexual laws (including the 1885 Act) to be “disregarded” if the relevant conduct is no longer an offence.  The effect is very similar to a pardon.  But section 92 applies only to living persons.

The Government’s intention when passing section 92 was to recognise the injustice of repressive old laws  – even though they were validly passed at the time. So Lord McNally’s moral justification for refusing to pardon Turing no longer holds water.  And it is legally unsound too – the power to grant pardons is not restricted by section 92.

It is perverse for the Minister to refuse to pardon Turing for reasons which are diametrically opposed to the law which currently applies to living persons.   The point is even stronger because the Minister must exercise his discretion compatibly with the European Convention on Human Rights which does not permit criminal convictions for consensual homosexual acts between adults.

Turing famously said “we can only see a short distance ahead, but we can see plenty there that needs to be done”. Perhaps Professor Hawking’s plea will help the government overcome its blindness towards the un-remedied injustice of Turing’s stigma. If not, the courts may need to help it see.

Alex Bailin QC is a barrister at Matrix Chambers and was previously a mathematician; John Halford is a partner at Bindmans LLP. Both specialise in human rights law.

*A version of this post was first published in the Guardian on 19 December 2012

 

Comments

  1. James Wilson says:

    Turing was a national hero, and his treatment was disgraceful. But those are two separate points. His trial and punishment were disgraceful not because he was a national hero, but because what he was convicted of should never have been an offence in the first place. An ignorant individual who had never contributed anything to the public good would have been just as wrongly tried and punished as Turing.

    Therefore, and with the greatest respect to the motives of those involved (as well, of course, to Turing’s memory), I suggest that your campaign is misguided. Parliament has already implicitly condemned Turing’s treatment by decriminalising homosexual conduct and by all of the equality legislation passed since. Those steps have exonerated not just Turing or other famous individuals such as Oscar Wilde, but everyone who was subjected to an unjust law, whether rich or poor, famous or anonymous.

    Whether Turing has been adequately recognised for his wartime and other contributions is another matter altogether and should be debated entirely separately accordingly.

    The comparison with Derek Bentley is inapposite. Bentley was not pardoned. The Court of Appeal held only that he had not had a fair trial, which of course is not the same as an acquittal. If he had still been alive, he would most probably been retried. The dispute in his case concerned whether he had committed the offence, not whether the offence should have existed in law (which of course it should have been, and still is).

    The same reasoning applies to the Great War executions. The pardon given in 2006 was highly controversial for a number of reasons (none of which arise in Turing’s case), including that it was not up to Parliament in 2006 to be passing judgment on soldiers of 1916 who were doing their best under circumstances of unimaginable difficulty. Again, however, the dispute there was over whether soldiers were properly convicted, not whether the law against desertion should have existed (again, it should have and still does, though the death penalty has rightly been abolished). I have written about this matter at greater length in chapter 9 of my book Cases, Causes and Controversies (Wildy, Simmonds & Hill, 2012).

    It would be unjust for Parliament to declare only Turing to have been innocent, and not all the less gifted people who were convicted of the same offence (and all the others who had to live under an unjust law though they escaped prosecution). Instead, it should be acknowledged that the law as then stood was wrong as applied to everyone – but, as I have mentioned, that has already been done by abolishing the offence and by the enactment of various equality measures.

  2. Andrew says:

    This is preposterous.

    On this logic everyone hanged for murder between 1950 and 1964 ought to have his or her sentence retrospectively commuted.

    It’s a sad tale, but you cannot reverse history, least of all in favour of the dead.

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