Sir E Youde
HKG-380/2
3JCC 10
895
23
30
CONFIDENTIAL
зак
STAFF IN CONFIDENCE
To Miss
Buck Rodes
Mr Clift
to take this into account
LAST
RE
22
in your
revised scminin
5/27/10.
7
CAPITAL PUNISHMENT
1. We spoke yesterday about this matter and I have since received a copy of Mr Clift's minute of 23 October referring to Mr Day's minute of 21 October and Mr Harding's minute of 20 October, of which I also have copies.
2. It should be clearly understood that the question whether the prerogative of mercy should be exercised in a capital case does not arise until the judicial processes have been completed. There is likely to have been an appeal from the trial court to the local Court of Appeal and this may have been followed by a petition to Her Majesty for special leave to appeal to the Judicial Committee of the Privy Council, which may or may not have been granted.
3. When the case comes before the Governor and his Executive Council or Mercy Committee, the Governor is entitled to assume that the condemned person has been rightly convicted of murder and rightly sentenced to death.
4.
It is misleading to apply the word "juridical" or the word "appeal" to the question whether or not the prerogative of mercy should be exercised. A decision to exercise the prerogative and accordingly to commute the death sentence to a sentence of imprisonment is a decision of the Executive and is not a judicial act. It is for this reason that the Home Secretary exercised the function when the law of England provided for the death penalty for murder.
5. A Governor is in the same position as the Home Secretary used to be and he has the benefit of a report from the trial judge and the advice of his Attorney-General as well as that of his other advisers. If further advice is needed it can be obtained from here.
6. The idea of referring the exercise of the Royal Prerogative to a court or judicial tribunal is entirely misconceived which is of course why we cannot entertain Mr Davidson's idea of a judicial review. by the Privy Council.
As
red
a
7. There has been a certain amount of talk about Mr Davidson's conscience. I have never known an instance when a colonial Governor declined to do his duty in relation to the Royal Prerogative though there must have been some Governors who
2.c. HKG 380/485/1
1
J
/personally
STAFF IN CONFIDENCE
CONFIDENTIAL