9.
Confidential
This decision leads to some important considerations;
a) Public and Parliamentary opinion on capital punishment has changed
radically in this country since the Creech-Jones era. For both moral and political reasons we can no longer condone executions in the dependent territories, despite the fact that in many of the territories themselves, capital punishment is retained (in Anguilla, Belize, Bermuda, British Virgin Islands, Cayman Islands, Montserrat, Turks and Caicos and Hong Kong) and is even considered desirable.
b) There is also a very strong case for not permitting executions to be
carried out in these territories on account of the special position of Hong Kong. Here the death penalty still exists but no execution has been allowed to take place since 1966 in spite of strong local opinion in favour of capital punishment. In late 1969 the Governor announced that he would commute death sentences as a matter of course and impose life sentences in all but very exceptional cases. If HMG were to allow an execution in another dependent territory there could be strong reactions in Hong Kong and renewed local public spinis pressure to restore capital punishment.
c) Since, 1947 there have been fundamental changes in colonial
administration. At that time there were over 40 Colonies most of whom did not have internal self-government so that Governors exercised full executive authority. Now there are only some 18 dependencies and many of these do not have their own Ministerial Government but some e.g. Belize, Bermuda and British Virgin Islands are on the brink of independence. In 1947 for The King to have commuted a death sentence on an appeal made against a decision of the Governor, would indeed have been a blow to the Governor's authority and prestige. Today, with greater internal self-government in the dependent territories and with local opinion so often strongly in favour of capital punishment, a Governor is sometimes placed in the position of being forced to agree, on the advice of his Council, to a death sentence being carried out. He may, therefore, in certain circumstances, even welcome an appeal to The Queen.
10. I would suggest, therefore, that in all future cases of appeals for the exercise of the Royal Prerogative of Mercy, the advice of the Secretary of State should invariably be for the commuting of the death sentence. The 'Creech Jones formula'is out of date in the present dependent territories context and it seems desirable to ensure some uniformity of practice in respect of capital punishment in the dependent territories. On the other hand, if this virtual abolition of the death sentence is not popular in some of the territories, the Governors would be able to use this point as an object lesson to the territories' governments on the advantages of becoming independent and thus being able to make their own decisions on such important matters.
Il. I have not consulted Heads of Dependent Territories Departments nor have 1 had an opportunity to discuss these proposals with the Legal Adviser.
75
FLAED.
12. In paragraph 6 of his letter of 7 February addressed to Mr Stanley, Mr LLoyd asked if the Creech Jones doctrine still obtained and whether there were any points which should be brought to his notice in respect of the appeal of Tacklyn. In consultation with Mr Preston (Caribbean Department) and Mr Bickford FLAGE (Legal Advisers) we considered that there was no advice to be given to Mr Lloyd andr Stanley's letter of 3 March (Folio II) issued. If a decision is taken to FLAG F. proceed as suggested in paragraph 10 above, Mr Lloyd and Mr McEntee would wish to know.
13. In the meantime I consider that we should telegraph Belize and Bermuda to enquire the latest position regarding the appeals and whether the Governors are able to give any indication of the likely outcome.
Confidential
J.Jus
J. Juster.
(J.Jasper)
GUD K 270
7 April 1977