The Alan Turing Law: Who’s Pardoning Whom?

The UK government recently announced plans to pass an “Alan Turing law” to pardon men convicted of historical offences related to homosexuality. The bill would pardon about 15,000 living citizens of the UK and posthumously pardon 40,000 (including Oscar Wilde). This follows the 2013 posthumous pardon of Alan Turing, the brilliant codebreaker who greatly contributed to the Allies’ victory in World War II and was rewarded with a conviction for gross indecency and chemical castration before dying by suicide.

Reactions to the proposed law are mixed. While a pardon is better than a permanent stain on one’s memory and historical record, some find it offensive that a government that persecuted its citizens for being gay or bisexual would then “pardon” them for their victimization. Shouldn’t the men punished under unjust laws be the ones to decide whether the Crown has earned their forgiveness? As one of the victims of the UK’s gross indecency laws put it, “To accept a pardon means you accept that you were guilty. I was not guilty of anything.”

Canada may pass its own mass-pardon law, and the debate in the UK raises the same questions here: Are pardons the correct mechanism for the Crown to expiate this shameful part of its history? Does a pardon always imply the Crown’s forgiveness of the grantee? Or can it symbolize the Crown’s contrition and remorse?

The answer may be hidden in the subtleties of the pardon itself. The news media for the most part have not distinguished between the different types of pardon available. Alan Turing’s own posthumous pardon, granted in 2013, had first been intended to be a statutory pardon: the bill had passed the House of Lords and progressed to first reading in the House of Commons when Queen Elizabeth II intervened and issued a royal pardon via the Crown prerogative of mercy.

The preamble of the royal pardon simply recounts the underlying facts: that Turing was convicted and compelled to submit to medical treatment. The basis for Her Majesty’s exercise of mercy is given only as “circumstances humbly represented unto Us.”

In Canada, there are two types of pardon:

• An administrative record suspension (formerly an “administrative pardon”) under the Criminal Records Act.
• A pardon under the Crown’s royal prerogative of mercy, either at common law or pursuant to the Criminal Code.

Administrative record suspensions are unlikely to satisfy anyone. The Supreme Court of Canada has held they do not erase a conviction: such a pardon “does not make the past go away, it expunges consequences for the future.” Making the past go away for the grantees as much as possible seems to be the goal of the Alan Turing law pardons. Even worse, the Criminal Records Act provides numerous circumstances in which a record suspension automatically ceases or can be discretionarily revoked by the Parole Board of Canada. This impermanence also does not convey the “wiping clean” effect that the Crown seems to desire.

This leaves the royal prerogative of mercy, exercised in Canada by the Governor in Council (in practice, the federal cabinet). The pardon can be invoked as of right by the Crown by the issuance of letters patent, or by following a particular statutory recipe in the Criminal Code. (The Code specifically says it doesn’t limit or affect the prerogative; it only provides one procedure for exercising it.)

In 1933 the Supreme Court of Canada laid out the effects of a royal pardon:

A pardon under the great seal

if general in its purport and sufficient in other respects, obliterates every stain which the law attached to the offender. Generally speaking, its puts him in the same situation as that in which he stood before he committed the pardoned offence; and frees him from the penalties and forfeitures to which the law subjected his person and property;

takes away poenam et culpam [penalty and guilt];

does so far clear the party from the infamy and all other consequences of his crime, that he may not only have an action for a scandal in calling him traitor or felon after the time of the pardon, but may also be a good witness. [citations omitted]

Later caselaw glosses this effect as a “retroactive acquittal,” and this seems closer to what the Crown wants to accomplish. It certainly addresses the concern that “To accept a pardon means you accept that you were guilty”; the effect of a royal pardon is to eliminate guilt.

The question remains whether a royal pardon symbolizes forgiveness or contrition on the part of the Crown. Despite being called “mercy,” the prerogative used to be the authority underlying the Criminal Code’s provisions for reviewing alleged wrongful convictions. The Supreme Court has also accepted that the royal prerogative of mercy can be an appropriate remedy for those who were convicted under unconstitutional provisions such as constructive murder before they were struck down. Both of these uses suggest a royal pardon can symbolize at least the Crown’s recognition of its error, and in the latter case the pardon seems to verge on recognition that the law in question should not have existed.

In the UK, a usual prerequisite for a royal pardon is that the accused be exonerated of the offence. Since Turing’s own pardon was granted in the absence of a factual exoneration, perhaps it can be assumed that the pardon is a form of admission by the Crown that the existence of the offence itself was wrongful. The fact that Her Majesty pre-empted the legislature could also mean a statutory pardon would not have sufficiently communicated the meaning of the Crown’s abandonment of the conviction. Still, even if there is an apology hidden in the nuances of the pardon, it is cloaked in implication rather than expressed in plain language. And, to complicate matters, Turing had already received a separate formal apology.

My conclusion is that while the effects of a royal pardon may be sufficient, its symbolism is too ambiguous to convey what the Crown ought to express. Atoning for the persecution of gay and bisexual Canadians is not the same as righting a wrongful conviction: as Tamara Tabo put it, Turing was not wrongfully convicted under a rightful law; he was rightfully convicted under a wrongful law. The problem isn’t that the convictions were procedurally unsound or that the men were factually innocent, but that they were convicted under repugnant laws that never should have existed. A royal pardon plus a forthright apology would be more fitting.