CO885-(11-13) — Page 149

PUBLIC RECORD

OFFICE

Reference :-

TLC.O. 885

سلنيسا

11 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

MY LORD,

No. 843. (MALTA.)

LAW OFFICERS to COLONIAL OFFICE.

We were honoured with your Lordship's commands signified in Mr. Holland's

Temple, August 2, 1873. letter of the 30th June last, stating that he was directed by your Lordship to transmit to you a copy of a Despatch of the 10th of June from the Governor of Malta reporting the conviction of certain seamen for murder committed on board the British ship Athenais" in the Bay of Naples, and inquiring to what place, Gibraltar or England, the prisoners should be sent to undergo their respective punishments, as penal servitude is a punishment unknown in the law of Malta.

2. That it appeared that the Consul held a Naval Court at Naples under the 260th section of the Merchant Shipping Act, 1854, and sent the prisoners to Malta under the power given by the 6th sub-section of section 263 taken in connexion with the provisions of section 268 of the Imperial Act, and

3. That it is stated by the Governor that the prisoners were sentenced to penal servitude under section 18 of 24 & 25 Vict. c. 100., and it was presumed that although penal servitude was unknown in the law of Malta those sentences were passed in ccordance with the provisions of section 267 of the Merchant Shipping Act, 1854 (which makes the offences referred to in that section liable to the same punishments as if such offences had been committed within the jurisdiction of the Admiralty of England), taken in connexion with section 68 of 24 & 25 Vict. c. 100. That

4. By the penal code of Malta of 1854 the punishments to which crimes are liable are death, hard labour, imprisonment, and by the Ordinance No. 5 of 1868 the maximum of hard labour appears to be 20 years, and it is provided in the Penal Code that "from the punishment of death the descent is to the punishment of hard labour."

5. That it might be a question whether as those prisoners were found at the time of the trial within the jurisdiction of the Maltese Court they might not have been tried by that Court under the provisions of 18 & 19 Vict. c. 91. 8. 21. or of 30 & 31 Vict. c. 124. s. 11, and whether in such case they might not have been sentenced according to the law of Malta, but as the sentences of penal servitude had been actually passed it was presumed that it was then too late to alter them even if incorrect.

6. That it would appear to be clear from the case of R. v. Anderson, Law Reports 1 Ct. cases reserved, p. 161, that the prisoners might have been tried in England and imprisoned here, and Mr. Holland was pleased to say that he was to add that if it was decided that the prisoners should be removed from Malta, it might be assumed that it would be best for them to be sent to England as was, it is believed, the practice until very recently in the case of persons sentenced to penal servitude in Jersey, that being a punishment unknown to the law of that island.

In conclusion Mr. Holland was further pleased to say that he was to request that we would report to your Lordship-

1. Whether the three prisoners were rightly sentenced to penal servitude, and whether the commutation of the sentence of death passed upon the fourth prisoner to penal servitude for life was correct, or whether sentences and commutation should have been according to the law in force in Malta, and secondly whether there is any objection in point of law to the removal of those prisoners to England to undergo their scntences here.

In obedience to your Lordship's commands, we have the honour to➡

Report

That this case is not free from difficulty, but the best advice after much considera- tion which we can tender to your Lordship is that the criminals should undergo their punishment in Malta, and that inquiry should be made by your Lordship whether by

U 16278.845. 23.-5/86.

2

law of Malta the Governor can now commute the sentence of death for a sentence al according to Maltese law, and whether the Maltese Court can alter the sentence penal servitude in a like manner.

If, as we suppose will turn out to be the case, these enquiries are answered in the rmative the changes in the sentences necessary to bring them into accordance with

law of Malta can then be made.

The Right Hon. Earl of Kimberley.

We have, &c.

(Signed)

J. D. COLERIDGE.

G. JESSEL.

&.c.

&c.

&c.

8413.