COLONIAL
OFFICE
THE CHURCH HOUSE,
lift.
RCULAR
9337/47
Sir,
GREAT SMITH STREET,
LONDON, S.W.1.
12th December, 1947.
I have the honour to transmit to you the accompanying copy of a statement regarding procedure in capital cases in the Colonial Dependencies, which was given in the House of Commons on the 11th August last. The statement was made in order to provide some assurance to the House that steps would be taken to obviate in future, as far as possible, the delays which had occurred in a case on appeal from the Gold Coast. This case, because of these delays, obtained as you are probably aware, a good deal of undesirable publicity.
2. It will be observed that the remedy lies, to a large extent, in the strict enforcement of rules based on an Indian model which the Governors of most of the Colonial territories have now made as requested in Colonel Stanley's circular despatch of the 18th July, 1944. In the case of the few Colonial Dependencies where such rules have not yet been made I should be glad if Governors would take steps to comply with the request contained in that despatch.
3. Delay in carrying out sentences of execution might be caused by prisoner appealing to the King to exercise the prerogative of mercy in his favour. This aspect of the matter is dealt with in the last paragraph of the enclosed statement. As will be seen, the normal practice of the Secretary of State is not to intervene himself in an individual case and not to advise His Majesty to do so. This being so an execution need not be postponed in order that any petition received may be forwarded to me, if you are satisfied that there are no special circumstances affecting the case with which you think I ought to be acquainted. Copies of the petition and correspondence relating to it should, however, be sent to me later. In non-capital cases the rules laid down in Colonial Regulations 186 and 187 should be followed.
4. I invite special attention to the first sentence of the seventh paragraph of the enclosed statement, the effect of which is that the Governor will allow executions to proceed where proceedings taken are
without real substance." It is impracticable to formulate any precise rules upon which this principle should be applied. It is for the Governor to come to a decision in the light of all the circumstances. I should, however, inform you that it is not intended that an execution should proceed where a petition is to be lodged with the Privy Council as part of the normal machinery of appeal against conviction, provided, of course, that the Rules referred to in paragraph 2 of this despatch are complied with. Such a course could in my view be justified only in very exceptional circumstances. If, however, subsequent proceedings are taken (e.g., by way of certiorari, mandamus or habeas corpus) and the Governor is satisfied that they are without real substance and taken merely for the purpose of postponing execution, he is free to allow the execution to proceed. The fact that the Governor has received an intimation that the prisoner proposes to appeal to the Privy Council, or even that a petition for leave to appeal has been actually lodged, would not necessarily affect the position (though where leave to appeal has been actually granted, the execution of the sentence should, of course, be respited). In this respect Governors would be following the practice which would, I understand, be followed in this country. The Home Secretary informs me that there is no record during the last 50 years or more of the postponement of any execution in this country owing to the institution of last minute legal proceedings, and that if on the eve of an execution such proceedings were instituted, it is most unlikely that the execution would be postponed, save in the most exceptional circumstances.
5. I take this opportunity to inform you that in a recent case, in which leave to appeal to the Privy Council had been given by a local court, the Judicial Committee called attention to the following principles :-
(a) no local court has power to grant leave to appeal to His Majesty in Council in a criminal
case;
(b) no court should encourage an application for special leave to appeal without regard to the rule that His Majesty "will not review or interfere with the course of criminal proceedings, unless it is shown that, by a disregard of the forms of legal process, or by some violation of the principles of natural justice, or otherwise, substantial and grave injustice has been done"
(c) this rule is not affected by the absence of a Court of Criminal Appeal for any particular
territory.
Reference was made to the observations of Viscount Simon on July 16th, 1941, reported in the Weekly Notes, 1941, Part 1, page 172. A copy of extracts from the Report is, for the convenience of reference, enclosed with this despatch.
The Board expressed the hope that their remarks would be brought to the notice of those con- cerned with the administration of criminal justice in the Colonies and you will, no doubt, take the necessary steps to meet Their Lordships' wishes.
I have the honour to be,
Sir,
Your most obedient, humble servant,
A. Greceadores
The Officer Administering
the Government of
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