PUBLIC RECORD OFFICE
Reference :--
C.O.885
ALLY W
COPYRIGHT PHOTOGRAPH-NOT TO BE REPRODUCED PHOTOGRAPHIC-
16 PUBLIC
D OFFICE, LONDON
PERMISSION OF THE
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prisoners from Ceylon who have been sentenced to death, but whose sentence shall have been commuted," whereby it is (amongst other things) provided that prisoners who shall have been sentenced to death, but whose sentence shall have been com- muted to a sentence of imprisonment, shall be subject to removal from Ceylon under the above recited Act, and that the concurrence of the Government of Ceylon in the removal of any such prisoner under the said Act shall be given by the Governor in Executive Council, and further that it shall be lawful for the Governor in Executive Council, subject to the approval of the Secretary of State, to enter into an agree- ment, on behalf of the Government of Ceylon, with the Government of
any British Possession for the purpose of regulating the conditions under which prisoners sub- ject to removal under the said Ordinance shall be removed to such British Posses- sion and the payment of the costs incurred in the removal, maintenance, return, or sending back after discharge, of such prisoners:
And whereas it is expedient that the said Ordinance should be recognised and given effect to throughout His Majesty's dominions and on the high seas as if it were part of the above-recited Act:
Now, therefore, His Majesty by virtue and in exercise of the power by the Colonial Prisoners Removal Act, 1884, in His Majesty vested, is pleased, by and with the advice of His Privy Council, to order and direct, and it is hereby ordered and directed, that the Ordinance hereinbefore recited shall be recognised and given effect to throughout His Majesty's dominions and on the high seas as if such Ordinance were a part of the said Act.
R. D. I.
J. A. S.
*
38715
No. 151.
SOUTH AFRICA (SOUTHERN RHODESIA).
LAW OFFICERS to COLONIAL OFFICE.
[Interpretation of Southern Rhodesia Ordinance No. 3 of 1903 (Criminal Law Amendment).]
SIR,
Law Officers' Department,
Royal Courts of Justice,
1st December, 1911.
We were honoured with your commands signified in Sir C. P. Lucas's letter of the 21st September last, stating that he was directed by you to forward, for our consideration, a copy of a despatch from the High Commissioner for South Africa relative to the interpretation of Southern Rhodesia Ordinance No. 3 of 1903 (Criminal Law Amendment Ordinance, 1903).
That Sir C. P. Lucas was to enclose a copy of the Southern Rhodesia Order in Council of the 20th October, 1898, to which reference is made in Lord Gladstone's despatch, and also the earlier despatch referred to by Lord Gladstone. That he had not furnished a report of the case Rex n. Bonali. That the discretion of the judge in imposing a sentence under Section 1 of Ordinance No. 3 of 1903 appeared to be absolute, but that in paragraph 3 of Lord Gladstone's despatch a case was stated which he requested might be submitted to us for an opinion.
That you would accordingly be glad if we would take the papers into our consideration and favour you with any observations which we might see fit to make on the points raised by the High Commissioner.
We have taken the matter into our consideration, and, in obedience to your commands, have the honour to
Report-
That, in our opinion, the intention of the Legislature as expressed in Ordinance No. 3 of 1903 was that the crime in question should be punished with death unless in any particular case circumstances are present which lead the judge, in the exercise of a judicial discretion, to the conclusion that in that particular case a less penalty will be sufficient.
The occasion for the exercise of the discretion given to the judge arises only when some such circumstances are present, and in a case where none exist the prescribed penalty is death.
But the presence of any circumstance which can, in the exercise of a judicial discretion, lead to the conclusion that a penalty less than death will be sufficient in the particular case is enough to give the judge a discretion.
It is, therefore, incorrect to say that the only case in which a punishment less than death can be imposed is when the defendant can prove that there was action. on the part of the assaulted person which in some way offered an excuse,
No doubt this is one instance of circumstances which would enable the discre- tion to be exercised, but it is not exclusive, and there might in any given case be other circumstances which would lead a judge to the conclusion that a less sentence would in that case be sufficient, and wherever such circumstances exist the judicial discretion exists also.
We have, &c.,
RUFUS D. ISAACS. JOHN SIMON.
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The Right Honourable
Lewis Harcourt, M.P.,
&c., &c.,
&c.
(22185-2.) Wt 96-181. 25. 1211. D&S.