Home Secretary Amber Rudd has said that she will “take a look” at pardoning the women who were jailed while fighting for the right to vote, but that it would be “complicated”. But just how complicated would it be?

Her Majesty’s prerogative to grant a “free” or “unconditional” pardon was consolidated in s.16 of the Criminal Appeal Act 1995. The Secretary of State, assisted by the Criminal Cases Review Commission (CCRC) is responsible for recommending that Her Majesty execute the royal pardon. In the case of Bentley [1994] QB 349 Lord Justice Watkins commented that the prerogative power is:

A flexible power and its exercise can and should be adapted to meet the circumstances of the particular case … the prerogative of mercy [can no longer be regarded as] no more than an arbitrary monarchical right of grace and favour. It is now a constitutional safeguard against mistakes. [1994] QB 349 at 365.

He went on to say:

the grant of a free pardon should be reserved for cases where it can be established that the convicted person was morally and technically innocent. [1994] QB 349 at 364E.

One method of effecting a pardon is through the introduction of legislation and this has historically been the favoured approach. On 31st January 2017 after many long and hard years of campaigning by the LGBTQ community; the Policing and Crime Bill enshrined in law pardons for those convicted of consensual same-sex relationships. Colloquially dubbed “Turing’s law” after convicted mathematician Alan Turing, who was posthumously pardoned 4 years earlier, the Policing and Crime Act 2017 pardons thousands of homosexual and bisexual men who had been convicted of now abolished sexual offences. So here we have a remarkable precedent in which mass pardoning has been facilitated to acknowledge that those men previously convicted where indeed “morally and technically” innocent. But what does that mean for the arrests and subsequent convictions of the circa 1,300 suffragettes?

One method of effecting a pardon is by introducing legislation and historically this has been the favoured approach. On 31st January 2017 after many long and hard years of campaigning by the LGBTQ community; the Policing and Crime Bill enshrined in law pardons for those convicted for having had consensual same-sex relationships. Colloquially dubbed “Turing’s law” after convicted mathematician Alan Turing, who was posthumously pardoned 4 years earlier, the Policing and Crime Act 2017 pardons thousands of homosexual and bisexual men who had been convicted of now abolished sexual offences. So here we have a remarkable precedent in which mass pardoning has been facilitated to acknowledge that those men previously convicted were indeed “morally and technically” innocent. But what does that mean for the arrests and subsequent convictions of the circa 1,300 suffragettes?

It is a prerequisite for the Secretary Of State referring a case to the CCRC that he or she be satisfied that the acts today would not be criminal in nature. Whilst the offences of buggery and gross indecency were repealed by the Sexual Offences Act 2003; many of the offences that Suffragettes were convicted of still remain criminal offences today. It seems that where activists committed less serious offences certain human rights defences could today be open to the suffragettes, providing that their actions were proportionate. The legal difficulty arises when considering the actions of those women who engaged in the more militant direct action. One example is Christabel Pankhurst who in July 1912 began organising a secret arson campaign to burn down the houses of two members of the government who were opposed giving women the vote. Today, Christabel’s actions may amount to conspiracy to commit arson, or perhaps even attempted murder. It is difficult to see how Christabel would have a defence in law to either of those offences, notwithstanding the fact that such direct action did go a long way to achieving the ultimate goal of women’s suffrage.

It seems therefore that Amber Rudd’s somewhat cryptic caution, is justified and that this area would be wrought with potential difficulties. And there are further, more theoretical  problems. Leaving aside the question of whether those convicted of undoubtedly serious offences would be suitable for pardon, how would the Home Secretary actually decide who was and who was not a “Suffragette”? Many political protest groups attract a range of followers with varying degrees of commitment and participation, and with a spectrum of ideological belief. What would be the test given that the pardons would, in effect, be granted on the basis of  the ideological motivation underlying the otherwise criminal conduct, as opposed to the nature of the conduct itself? Would it not lead many to ask why the Suffragettes had been selected for pardons, whilst other political protest groups from the last century were overlooked? If acting upon genuinely held beliefs in the face of an oppressive state justifies a pardon, other individuals and groups might also be able to make their case. What about, for example, Irish Republican activists in the years before partition, or even in the years of civil rights struggle in the late 1960’s and early 1970’s? It is difficult to see Amber Rudd contemplating their cases, but there may be an argument in favour of doing so.

That being said, there is no doubt that whatever the legal challenges, in the words of Sam Smethers, CEO of the Millicent Fawcett Society: 

Suffragette activism was for a noble cause and many of [women] became political prisoners. It would be a fitting tribute to pardon them now. They made such sacrifices so that we could all enjoy the rights we have today. In any meaningful sense of the word, they were not criminals.

 If it is as Lord Justice Watkins said, a case of “flexibly” considering how “morally innocent” someone is, perhaps a pardon is an appropriate ode to the sacrifices made by so many women and a reminder of the progress that can be made from engaging in direct action.