CODE 18-77
S$ 8/78
Mr Clift
CAPITAL PUNISHMENT
CONFIDENTIAL
Reference...HKG. 380/2... 18.
T NO SI
8 OCT 1900
As BBP
1.
In your minute of 1 September to Mr Deare, you said that you would be investigating further the extent to which the FCO can generally offer advice and assistance to a Governor about indivi- dual cases in the period between the passing of the sentence in a murder case and his decision whether or not to exercise the Prerogative of Mercy.
2.
As you suggested, Mr Hall and I have looked at the following cases in which the FCO were closely involved:
(sentence commuted)
(a) Hong Kong 1973:
(b) Bermuda 1976/77:
Tsoi Kwok-cheong
Erskine Durrant Burrows Larry Winfield Tacklyn
(c) BVI, 1978:
Sylvester Gaston
(sentences
carried out)
(sentence commuted)
3. The FCO has been sensitive to the Governors' weighty constitu- tional responsibility in this respect. Apart from providing moral support, officials have also kept a watchful eye on the sequence of events after the trial in view of the strong local feeling in favour of capital punishment. The FCO has also been careful to protect the Governor, either by arranging to provide reinforce- ments in case of civil unrest (BVI, Bermuda), or by removing from him the odium attached to a decision to commute the sentence (Hong Kong).
4. The BVI case provides an unusual example of the type of assis- tance that can be rendered by the FCO. Initially, the Governor seemed inclined to accept the recommendation of his Mercy Committee that the law should take its course. But the FCO Legal Advisers, having examined the trial records, pointed out that sufficient doubt existed (attitude of the jury, outside pressures, accused's mental condition) as to whether a miscarriage of justice might not occur if the law were allowed to take its course. The FCO relayed this to the Governor, and offered him the services of a small team of officials and a legal adviser to assist him and his Committee in their deliberations (this was not necessary in the event); the FCO also asked the BVI Government to agree to having the accused examined by two British psychiatrists. The psychiatrists stated that Gaston was mentally retarded, and this provided the basis for commutation, although the report was not as conclusive as the Governor would have wished.
5. The Bermuda case was clear-cut in the sense that no mitigating circumstances relevant to the accused could be found. The accused sent a petition to The Queen which was rejected on the recommend- ation of the Secretary of State (Dr Owen)
5. The Hong Kong case was likewise clear-cut in that sense, but it took place against the background of a debate in the UK
C.C. HKG 380/485/1
CONFIDENTIAL
/Parliament