CONFIDENTIAL
5.
The double criminality rule was applied to Commonwealth countries in 1967 as a departure from the previous law, in a situation of increasing change within the Commonwealth. It was also decided at the same time to apply the rule to the dependent territories, although in other respects they were not treated like independent countries.
6.
This last decision was not, however, wholly logical. In the case of colonies like Hong Kong, where HMG have control over their legislation, the rule can confer immunity on fugitive offenders who have contravened laws introduced with HMG's approval and in the interests of good government of a territory for which HMG are responsible.
7.
The Godber case has also opened up the prospect of substantial political embarrassment in our relations with Hong Kong and perhaps other dependent territories. Faced with a serious corruption problem, the Hong Kong Government have had, with our agreement, to take exceptional measures against those for whom it is difficult, for obvious reasons, to produce hard evidence of corruption. Inside Hong Kong also there is a political problem of public confidence. They have set up a new and independent Anti-Corruption Commission. But so long as senior European officers appear able to escape its operations and to live unmolested in the UK, public confidence in Hong Kong in the Commission, the Hong Kong Government and HMG will be diminished. If they believe that, in effect, the European administration are shielding their own people, the Chinese population will not come forward to give the evidence of corruption which should eventually make the special legislation unnecessary. Moreover, the fact that the law which impedes Godber's return is a UK one, increases, however unreasonably, the general political tension between Hong Kong and the UK which was the subject of Sir Alec's minute. If, as is possible, another Hong Kong Government officer were to evade prosecution. and settle in Britain, the effect on our relations would be serious. If no steps are taken to remedy the situation before the Prime Minister's visit to Hong Kong in January he will face questioning on this point.
I
8.
In this situation there are several options. We could decide that the application of the double criminality rule to the dependent territories is illogical and abandon it altogether. This could create difficulty in this country, if fugitive offenders were sent back to face trial for offences which public opinion here does not recognise. But this possibility of embarrassment is almost totally theoretical. understand that your department have only been able to find one such case of return to a dependent territory between 1881 and 1967. Godber himself only came here because his lawyers advised him of the existence of the double criminality rule. It is the existence of the rule that creates embarrassment, not its abandonment.
CONFIDENTIAL
19.