CO885-(11-13) — Page 212

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12 PUBLIC RECORD OFFICE, LONDON

MY LORD,

No. 5.

(STRAITS SETTLEMENTS.)

LAW OFFICERS to COLONIAL OFFICE.

Temple, 10th February 1874. WE are honoured with your Lordship's commands signified in Sir H. T. Holland's letter of the 19th of January ultimo, stating that in the Report of the Law Officers of the 17th November 1873, upon the question who should appoint the place of intermediate custody of a soldier sentenced by court-martial in the Colonies to penal servitude, it was suggested that your Lordship should issue directions to the Governors of Colonies to appoint places for such intermediate custody with a view to the Governors intimating to the judge what places they, the Governors, had appointed.

Before, however, any such directions were issued it was necessary that the War Office should be informed of the opinion of the Law Officers upon a question which was in the first instance raised by that Department, and your Lordship thought it right, when making that communication, to state for Mr. Cardwell's consideration certain doubts which your Lordship entertained after careful consideration of the Report.

A copy of the letter to the War Office and of the reply were annexed for our C.O.to W.O. reference.

16 Dec. W.O.toC.O.,

to Sir H.

It would be seen that Mr. Cardwell concurs in the doubts expressed by your 13 Jan. Lordship as well as in the proposal to refer the case back again to the Law Officers. And in these circumstances Sir H. T. Holland was pleased to request that we would Previous take the papers noted in the margin into our consideration, and report whether we see papers sent any reason for modifying the opinion expressed by the Law Officers in their Report of James on the 17th of November, and he was also pleased to request that we would prepare a 10th of Nov. form of order in accordance with the view we might entertain after a reconsideration of last. the case.

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

Report

That we think Chief Justice Sidgreaves was well founded in his objection to sign the order in the form given in the Colonial Regulations, which recites that directions have been given by the Secretary of State which have not in fact been given.

The difficulty might be met by either of the two methods suggested in the letter of the War Office of the date of October 1873, viz. (1) by giving such directions or (2) by omitting the recital in the judge's order that such directions have been given. We are of opinion that the latter is the right course. It appears to us that section 19 of the Mutiny Act contemplates four distinct and successive proceedings after sentence of penal servitude.

(1.) Notification of sentence by commanding officer on the station to the judge. (2.) Order of the judge thereupon for intermediate custody.

(3.) Notification by judge to the Governor of such order.

(4.) Order by Governor for permanent custody in or out of the Colony subject to

directions by the Secretary of State.

It appears to us that it is only to the last stage, viz., to the order by the Governor for permanent custody that directions by the Secretary of State are authorised or required by the Act. The reason of this is obvious. The permanent imprisonment may be either in or out of the Colony. If all Governors of Colonies determined to export their convicts the results might be very inconvenient. It was therefore necessary to reserve the discretion of the Secretary of State on this point. But no such reasons apply, to the case of intermediate custody, which the Act leaves to the discretion of the judge,

The result of giving no directions and expunging the recital will come practically to the same thing as the proposed directions which leave the matter to the discretion of the judge.

But on principle we think it objectionable that the Executive should assume to interfere with the function of the judges except when an Act of Parliament expressly

A12916.-6. 25.-12/84.