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