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8. The 1986 review identified two options for the Caribbean DTS and Bermuda: continuation of Creech - Jones and abolition of the death penalty which would have to be done by means of UK legislation. It recommended the latter option but Ministers decided to maintain Creech - Jones. Recently this issue arose again in the context of a letter from Merlyn Rees MP (papers attached) and the Secretary of State remarked that he saw no prospect of primary legislation on this matter.
9.
This being the case, I believe we should look very hard at a third option which, until now, has been treated as a non-starter. The "Hong Kong solution" is an imperfect solution but one which I believe we could justify for as long as the death penalty is not reintroduced in the United Kingdom. On the one hand, the death penalty would remain on the statute books in the DTS concerned in recognition of local opinion. On the other, all sentences would be commuted in recognition of our Parliamentary position and to ensure equal treatment for those for whom we have responsibility, whether they are British, Hong Kong or other Dependent Territory citizens. Theoretically, the Governor would still go through the process of considering all factors before making his decision (as he does at present in Hong Kong in accordance with Article XXXIV of the Letters Patent [attached]). But, practice, he would commute all sentences and it would become known locally that this was because he had been instructed to do so. The reason given, if pressed, would be the same as that given in Hong Kong: that the opinion of recent Secretaries of State, in tendering advice to the Queen upon petitions for clemency, has been that the House of Commons would not support advice that sentences should be carried out.
in
10. This policy would clearly be unpopular in the Dependent Territories but I do not believe that should deter us. At least HMG, rather than our Governors, would be identified as the source of grievance; we could avoid disturbances of the sort which followed the last execution; we would not have to face the domestic and international outcry which would follow an execution; our Governors would be relieved of an intolerable burden; and the anomalies between our policies would disappear. It is 12 years since a death sentence has been carried out in a Dependent Territory. I believe we should use this useful fact as the basis of a change in policy before the cases which are imminent force us into a crisis.
11. In your minute of 30 October, you mentioned the role of the Privy Council. My understanding is that the Judicial Committee of the Privy Council sits as a final Court of Appeal but that it deals solely, with matters of law. Thus, it would consider whether a trial has been conducted properly in accordance with the law of the territory concerned.
Its role
is not to consider pleas for clemency where a death sentence has been properly passed. Mr Rankin of Legal Advisers may wish to minute further on this point.
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