Andrew Stevenson

Collective pardons are becoming popular; the Scottish ministers have turned their attention to miners convicted during the industrial action of 1984-85. Next it may be the suffragettes, or those unfortunates with convictions under the Witchcraft Act 1563.

A blanket pardon may be regarded as the answer, whereby the authorities can in some small way make amends for what are now regarded as historical injustices. In the case of witchcraft, as with gay men convicted of gross indecency and similar offences prior to the abolition of such crimes in 1980, the injustice is the existence then of a law of which society disapproves now. It is not possible for the appeal courts to quash the convictions, given that these were correctly imposed in accordance with the law at the time.

It is easy to see the remedy as being to enact a law stating that absolutely anyone convicted under the 1563 Act is hereby pardoned. Nobody is prejudiced, or needs to be compensated, and it seems churlish or pedantic to disapprove. Yet there are problems here.

Firstly, deploying centuries of hindsight to particular criminal cases is tricky. Thousands were convicted under the 1563 Act; would they all be innocent of anything under modern law? Section 164 of the [English] Policing and Crime Act 2017 pardons anybody convicted under a raft of statutes forbidding homosexual acts, but only if the other party had consented and was at least sixteen and the activity would not now be criminal as taking place in a public lavatory. One of these statutes, passed by Queen Elizabeth I in 1562 is virtually contemporary to our Witchcraft Act. The 2017 Act requires us to transpose mentally into modern England a sexual act from the 16th century and to ask whether it would be criminal now. Leaving aside the question of whether the Tudors even had public toilets, these abstract imaginings are all rather futile. How do we really know anything about consent or age in a specific case from that period?

It has been argued that it is impossible to be a witch, therefore one could never be convicted of being one. But the law penalises deeds. The 1563 Act refers to using witchcraft, sorcery or necromancy or claiming to be able to do so or consulting those who do. Whether some of the actions of some of those 1563 Act offenders might constitute a crime if committed today depends to an extent upon who we select as the hypothetical victim. At the very least, threatening or abusive behaviour which is likely to cause fear or alarm to “a reasonable person” is a statutory offence. Being cursed is likely to be met with derision by a reasonable person in twenty first century Scotland, but not by one living 400 years ago when dread of sorcery was almost universal. Even today, wiccaphobia is widespread in parts of Africa, and members of some UK communities are victims of fraud and menace at the hands of perceived witches. It is artificial to ignore a victim’s fear, gullibility and credulity.

Secondly, there can be a misunderstanding of who is pardoning whom. One pardons a wrongdoer, not the party wronged. Yet by means of a pardon conferred by statute the state is granting, not seeking, forgiveness. A pardon (of witches or anyone else) does not quash a conviction. It actually reaffirms its existence.

Thirdly, since the people convicted were the victims of unjust laws, logically one has to challenge other legal measures and penalties that would never be imposed now. Historically, very little criminal legal procedure in Scotland has been human rights-compliant, and there is a lot of pardoning that could be done, most of it posthumously. Our Parliament surely has better and more important things to do with its time and resources.

Lastly, the indiscriminate pardoning of lawbreakers risks undermining compliance with our laws as they stand now; Alan Turing chose to break the law in 1952, and pleaded guilty to doing so. Those citizens who anticipate, for example, the legalisation of cannabis in twenty years’ time, with a spate of pardons for current convictions, are more likely to light up today.

The past is peopled by countless victims of injustice, including supposed witches. The law could be harsh, unfair and unjust, and often was. The Witchcraft Act and the beliefs underpinning it were shameful and absurd. But our reaction should be to educate ourselves about that history.

This article first appeared in The Scotsman.