Alan Turing: the stain should not be erased

The government has said it will support Lord Sharkey’s bill aimed at giving a posthumous statutory pardon to Alan Turing for an offence under section 11 of the Criminal Law Amendment Act 1885. Here’s a transcript of Friday’s second reading debate in the House of Lords. And here’s the bill.

I need say nothing about Turing’s achievements and greatness, which are beyond dispute. He was treated with disgraceful cruelty and ingratitude by this country, and in particular by its law and criminal justice system, when he was convicted and sentenced for that offence, after which he took his own life. But I’m opposed to this bill and this pardon.

Clause 1 does all the work, and reads as follows:

(1) Alan Mathison Turing, who was born on 23 June 1912 and died on 8 June 1954, and who was convicted of offences under section 11 of the Criminal Law Amendment Act 1885 (gross indecency between men) at the Quarter Sessions at Knutsford in Cheshire on 31 March 1952, is to be taken to be pardoned for those offences.

(2) This Act does not affect any conviction or sentence or give rise to any right, entitlement or liability, and does not affect the prerogative of mercy.

Clause 1(2) is worth noticing. It may surprise some, but the pardon does not affect any conviction – not even Turing’s. So his conviction will not be quashed or disregarded.

There’s nothing unusual about this. The more usual type of pardon until recently, a “free” or “full” pardon given by the Queen under the prerogative of mercy, on the advice of ministers, does not amount to the quashing of a conviction.  As was originally explained by Lord Justice Watkins in R v Foster in 1985, and cited by him in the Court of Appeal ruling in 1993 in R v Home Secretary ex parte Bentley,

The effect of a free pardon is such as, in the words of the pardon itself, to remove from the subject of the pardon, all pains, penalties and punishments whatsoever that from the same conviction may ensue, but not to eliminate the conviction itself.

The bills aims merely to replicate by statute the effect of a prerogative full pardon: to grant Alan Turing mercy for the offence he committed. It does so because of the government’s refusal so far to advise a prerogative pardon, which is reserved for miscarriage of justice cases – the person in question must be “morally and technically innocent” of their offence in order to qualify. And it’s clearly modelled on section 359 of the Armed Forces Act 2006, which granted a statutory pardon for servicemen executed for various offences during the first world war.

There was a good reason why the Armed Forces Act pardon was a statutory one: that meant it wasn’t necessary for individual cases to be considered on their merits, which might not have been possible so long after the event. And a principled decision to pardon an entire class of people was arguably more like lawmaking than granting individual mercy, so it was right that it was debated openly in Parliament. It may, though, have signalled the beginning of a gradual move away from use of the prerogative of mercy towards an expectation that pardons be given by statute.

But once Parliament decides it should act, there’s no reason for it to feel bound by the limitations of prerogative powers. Parliament is sovereign. If MPs and peers want, by Act of Parliament, to disregard Alan Turing’s conviction, they can do so. So why don’t they?

They’ve done something similar for those convicted of similar offences who are still living, in sections 92 to 101 of the Protection of Freedoms Act 2012, which allows them to apply to the government to have a conviction disregarded. I don’t say this approach would work for Alan Turing (or anyone else now dead who was convicted of a similar offence). The main practical effects of disregard for those living is that their criminal records are altered retrospectively, and they have no need to disclose the disregarded conviction in future.

Nonetheless, section 96 of the 2012 Act provides that a person whose application for disregard succeeds is to be treated for all purposes in law as if they not committed the offence or been charged with it, or prosecuted, convicted or sentenced for it. So I wonder why peers and the government don’t want the same for Alan Turing. Parliament can, if it likes, retrospectively repeal the legislation under which he was convicted, and make everything done under it a legal nullity (if need be making clear that no legal action can now be taken against anyone for anything they did under it).

Of course that would be an attempt to rewrite the past, something that can’t really be done, even by Parliament. One thing is sure: whatever apology is made (Gordon Brown apologised for what happened to Turing in 2009) and whatever law may be passed, nothing can be changed for Alan Turing. That, indeed, is the cruel truth about this sad story, and one which we have to face: the law’s treatment of Alan Turing cannot be undone. I agree with Ben Summerskill that the pardon is pointless.

Peers and the government just want to do something symbolic. But who benefits from the symbolism? Not Alan Turing. This pardon, well-intentioned though it undoubtedly is, is not only pointless but self-indulgent. It would make only us only feel that we’re relieved of the burden of the past.

The distinguished astrophysicist Lord Rees said in the Lords last week (19 July 2013, column 1011), supporting the bill,

Turing’s own reputation is assured but, as British citizens, surely we should do all that we can to erase the stain on the reputation of our own criminal justice system.

He’s right in more than one way, but wrong in his conclusion. History and social change has undone any damage to Turing’s reputation done by our law in the 1950s. The stain is not on him but, as Lord Rees says, on the law, on our system of justice, and on those who made it what it was – including not just the police and judges but Parliament itself.

So what does it mean to try to erase that stain? It never can be erased, and never should be.