affiliated to the International Association of Constitutional Law
Many years ago, I was invited to speak on the radio about the obligation to obey the law. One comment made a lasting impression on me. In the course of a wide-ranging, and fickle, survey of the law’s relationship with morality, the judge in our group declared that one of the great things about the British judiciary was that they were merciful: judges tempered their rulings with mercy. I’m sure that most people listening thought this was a good thing, but I needed to reflect – and, when I reflect, I like to stare silently out of the nearest window for a time. This didn’t go over well on the radio. I haven’t been asked back.
I was, and am, unsure what role mercy should play the constitution and, moreover, which institutions should exhibit this virtue. A person acts in a merciful way when she has been wronged, is entitled to punish the wrongdoer, but chooses not to; she sets aside her entitlement. The beneficiary of mercy is not always forgiven – the slate has not been wiped clean – but she escapes the full punishment due to her. Mercy is an interesting social virtue. The beneficiary can hope for mercy, but cannot demand it as of right: having been treated mercifully, she should be grateful to the person she wronged. However, we generally hope – perhaps even expect – that people will exhibit this virtue. All of us behave badly occasionally, and mercy helps social relationships to continue despite these failings. A person without mercy would be a poor community member; she would damage the community by holding rigidly to her entitlements and souring relationships.
These two aspects of mercy – that people ought to act mercifully, but, at the same time, those hoping for mercy cannot demand this – make it a difficult virtue to exercise in the constitutional sphere. A merciful state actor would waive the punishment due to a person, even though the wrongdoer could not assert an entitlement not to be punished. This was why the judge’s comments surprised me. The task of the judge is to determine legal rights and uphold them. A judge who conclude a civil case by deciding that one party was legally entitle to a sum, but that she, as an act of mercy, would waive that entitlement would be acting improperly. Similarly, for a judge to decide that the criminal law required imprisonment, but, as an act of mercy, the criminal could walk free, would seem odd. Such mercy is not in the judge’s gift; she is not the one who has been offended against.
One response to this conundrum would be to re-interpret mercy. In a valuable paper, John Tasioulas ((2003) 103 Proceedings of the Aristotelian Society 101) provides an account of mercy that draws it closer to justice. Tasioulas utilises the distinction between retributive justice – that is, the punishment merited by the offender’s crime – and factors relating to the offender’s character that may warrant a reduction in the appropriate penalty. So, for example, where the offender has had an impoverished background, or suffers some illness that will be exacerbated by imprisonment, mercy may require a punishment that is milder than that required by the offender’s action: retributive justice may require that an habitual burglar be imprisoned for a year, but when the court discovers she only has six months to live, mercy demands a lesser penalty. Tasioulas’ paper is insightful, but departs from our notion of mercy in the personal context in at least two respects. First, the sense of mercy as an act of grace, a holding back of the punishment that is merited by the act, has been lost. Now mercy looks very much like a subset of reasons contained within a wider understanding of justice. The considerations that Tasioulas ties to mercy determine the appropriate punishment deserved by the offender: as well as looking at the offence, justice requires that we consider how a person came to commit the crime and, also, how any potential penalty will impact on her life. Allied to this concern, Tasioulas’ understanding of mercy appears to capture the sort of factors relating to sentencing that an offender is entitled to have taken into consideration; the offender has a right to mercy, in this sense. Tasioulas struggles to avoid this conclusion – once we start to think of mercy as grounding rights, it quickly collapses into justice – but his claim that an offender who has not benefited from mercy has suffered bad luck rather than a wrong is not entirely convincing. We expect judges to impose the punishment that the case demands, not to set the punishment on the basis of their (the judges’) idiosyncrasies.
It might be that Tasioulas’ interpretation of mercy is the only one compatible with our modern understanding of the role of the state. But until quite recently an alternative conception of mercy could be seen in the British constitution – though we need to look outside of the courts to identify it.
In the past, the British constitution contained a number of executive powers linked to mercy. These powers closely resembled the virtue as it is found in personal relationships: an act of grace that the offender could hope for, but could not demand. Perhaps the two most important instances of this virtue were the capacity of the executive to allow convicts to leave prison early and the power to suspend the prosecution of the plainly guilty. The divide between mercy and justice, in the exercise of these powers, mapped on to an institutional divide between the executive and the judiciary. The executive exercised mercy on behalf of the community, the entity against which the criminal had offended. The judges, in contrast, decided on entitlements; the price that the criminal had to pay to satisfy the demands of justice. The executive tempered the demands of justice with mercy, allowing the criminal to escape the full consequences of her crime.
Or at least this was the case until recently: mercy has fallen out of fashion. First, in the areas of sentencing, the role of Ministers has been steadily reduced. When the parole system was introduced, the Home Secretary could veto the Parole Board’s recommendations to release prisoners; the Board was advisory, rather than decision-making. Similarly, when the tariff system was introduced for life prisoners in 1983, it was the Home Secretary who set the minimum term. Each of these powers has faced attacks from the European Court of Human Rights and, after the Human Rights Act, from the British judiciary, too. The power of the Home Secretary to veto the release of prisoners was found to be contrary to the European Convention on Human Rights in Stafford (2002), and in Anderson (2002) the Lords found that the power of the Minister to set the tariff for life prisoners was incompatible with the Human Rights Act. The Criminal Justice Act 2003 followed, and now the trial judge sets the minimum tariff, and the Parole Board decides on release.
The nature of the Parole Board has also changed. For a long time, the Parole Board was criticised for its secrecy and lack of transparency. Prisoners were not accorded a hearing, could not challenge the evidence, and no reasons were provided by the Board: it behaved like an emanation of the executive branch. Looking at the Parole Board’s website today, it is plain that it has come to resemble – is keen to be seen to resemble – a court. Criteria by which decisions are made are published. Prisoners have the opportunity to attend a hearing, can, in most cases, challenge evidence, and reasons are given for decisions. The hopes of a prisoner approaching the Board have been replaced by a collection of rights and entitlements.
Secondly, decisions relating to prosecution have also been judicialised. The case of Purdy (2009) concerned the guidance applied by the Director of Public Prosecution to decisions over the prosecution of cases of assisted suicide. Often, the DPP had decided not to prosecute: the offender was spared the punishment the law regarded as her due. The Lords decided that the published prosecutorial guidance was too vague to satisfy Article 8 of the ECHR, the right to private life. The restriction on Purdy’s ability to secure an assisted suicide could, potentially, be justified under Article 8(2), the exceptions to that right, but only if the restriction was undertaken in accordance with law – and guidance was too vague to meet this requirement. The upshot was that the DPP was compelled to rewrite the guidance, clarifying it to enable the risk of prosecution to be predicted. What had once been a matter of mercy – a hope to escape prosecution – was now bordering on a matter of right – an entitlement not to be prosecuted. As John Finnis has powerfully argued, the House of Lords changed the law in Purdy, creating the unusual situation that some aspirant criminals can ask the prosecuting authorities whether they will escape prosecution for an offence they are considering committing. I don’t agree with Finnis over the rights and wrongs of euthanasia, but I do agree with him that Purdy is a case in which the Lords ventured into the domain of Parliament by changing the law in a controversial area – and, moreover, this trespass was caused by a failure to appreciate the constitutional virtue of mercy.
What are we to make of these changes? It is clear that the constitutional virtue of mercy is in steep decline, and, perhaps, is allied to the rise of a more compassionate sense of what justice requires. We are no longer willing to allow the state to waive the punishment of those whom, the judges have decided, deserve a penalty. And – it seems – we are no longer comfortable with the notion that the constitution could give a person a hope of avoiding, but not an entitlement to avoid, state punishment. There are certainly good reasons for being suspicious of mercy in the constitutional sphere: there is a risk of bias and caprice. But, on the other hand, mercy allowed the state to rise above rules and exhibit compassion in a particular case, speaking directly to a wrongdoer: perhaps something is lost when this capacity is set aside.
Nick Barber is a Fellow at Trinity College, Oxford, and the author of The Constitutional State.