Regina v Secretary of State for the Home Department Ex Parte Bentley: QBD 8 Jul 1993

Bentley had been convicted of the murder of a policeman. He was of low intelligence and he was captured. His co-accused still held a gun. He shouted out ‘Let him have it’ He was convicted, but had said that he had only intended for the gun to be surrendered. A posthumous pardon was sought.
Held: The royal prerogative of pardon is a flexible power. The court recommended to the Home Secretary that he re-examine the case of Bentley who had been hanged in 1953 with a view to exercising the prerogative of mercy. Home Secretary’s decision to pardon prisoner is susceptible to Judicial Review and the court could not make an order. The Home Secretary’s discretion on the exercise of the prerogative of mercy is a wide discretion.
‘The present Home Secretary is fully aware that there is nothing to prevent him recommending the grant of a free pardon even in a case in which he is not persuaded that the conviction was wrong . . He continues to think that a free pardon should be recommended only when the Home Secretary of the day is satisfied that the convicted person was not guilty of the offence charged.’
The court did not think the Home Secretary’s understanding as non-justiciable policy: ‘the substance of the applicant’s case was that the Home Secretary failed to recognise the fact that the prerogative of mercy is capable of being exercised in many different circumstances and over a wide range and therefore failed to consider the form of pardon which might be appropriate to meet the facts of the present case. Such a failure is, we think, reviewable.’
The Court concluded: ‘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.’


Gazette 13-Oct-1993, Independent 08-Jul-1993, Times 08-Jul-1993, [1994] QB 349, [1993] 4 All ER 442, [1994] 2 WLR 101


Convention and Protocol relating to the Status of Refugees 1951


England and Wales

Cited by:

CitedShields, Regina (on the Application of) v Secretary of State for Justice Admn 17-Dec-2008
The claimant had been convicted in Bulgaria of attempted murder. He had denied it, and somebody later confessed to the crime, but that confession had not been admitted. Having been transferred to England to complete his sentence, he now asked for a . .
CitedMiller, Regina (On the Application Of) v The Prime Minister QBD 11-Sep-2019
Prorogation request was non-justiciable
The claimant sought to challenge the prorogation of Parliament by the Queen at the request of the respondent.
Held: The claim failed: ‘the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Judicial Review

Updated: 25 July 2022; Ref: scu.87833