CO885-(11-13) — Page 335

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PUBLIC RECORD OFFICE

19

C.O.

Reference :-

885

12 PUBLIC RECORD OFFICE, LONDON

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

No. 108.

(MALTA.)

LAW OFFICERS to COLONIAL OFFICE.

MY LORD,

Temple, E.C., 30th August 1876. We were honoured with your Lordship's commands, signified in Mr. Malcolm's letter of the 21st June last, stating that with reference to the report of the Law Officers of the Crown, bearing date the 12th of April last, respecting the proposed agreement between Gibraltar and Malta for the reception by the latter Colony of prisoners sentenced in the former, he was directed by your Lordship to transmit to us the accompanying copy of a despatch from the Governor of Malta, enclosing a report by Sir Adrian Dingli, the Crown Advocate, in which he raised the question whether, having regard to the language of the Colonial Prisoners' Removal Act, 1869, and prisoners sentenced to penal servitude in Gibraltar could properly be imprisoned and subjected to hard labour at Malta, where the term "penal servitude' was not known.

2. That a Gibraltar Ordinance of 1867 adopted the then law of England for Gibraltar as far as it was applicable to the circumstances of the fortress, including the English Acts prescribing the punishment of penal servitude eo nomine in certain cases, and an Ordinance passed in December 1875, of which a copy was enclosed, provided Ordinative (section 3) that every person sentenced to penal servitude by jurisdiction in Gibraltar should undergo such sentence in the Gibraltar prison under

a court of competent No. of such rules and regulations as to discipline as were authorised to be made in the same Ordinance by the police magistrate, subject to the approval of one of Her Majesty's Principal Secretaries of State.

3. That it might be assumed for the purposes of the present case that such rules when framed and approved would (as do the existing rules of the Gibraltar prison) provide for the exaction of compulsory labour from the penal servitude and hard labour prisoners, and the combined effect of the Ordinance and the rules might therefore be taken to be this, that penal servitude should involve imprisonment and compulsory labour, which Sir Adrian Dingli showed in paragraphs 6 and 7 of his report to be the constituent elements of what was technically called in the law of Malta "hard labour," and which he was to observe were defined in other words ("detention " and "hard labour ") to be the constituents of "penal servitude" by the judgment of the Judicial Committee of the Privy Council in the case of "The Queen 2. Mount and Morris."

4. That it might be observed, as bearing on the present case, that in another part of that judgment their Lordships referred to the Colonial Prisoners' Removal Act, 32 Vict. c. 10., as placing penal servitude in the same category as imprisonment, and it might, as was submitted, be fairly argued from the language of the Act that Parliament contemplated the transfer of prisoners sentenced to penal servitude to a Colony where that sentence was co nomine unknown; and

5. Mr. Malcolm was to request that we would take these papers into our con- sideration, and advise whether, under the proposed agreement, prisoners sentenced to penal servitude in Gibraltar might be removed to Malta and dealt with as prisoners sentenced to "hard labour," ie., imprisonment and compulsory labour by the local Courts.

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

Report

That under the proposed agreement prisoners sentenced to penal servitude in Gibraltar may be removed to Malta, and there subjected by the Maltese authorities to such punishment in the nature of imprisonment and compulsory labour as does not essentially differ from what is known in Gibraltar as "penal servitude."

The Right Hon. the Earl of Carnarvon,

&c.

&c.

&c.

(Signed)

We have, &c.,

JOHN HOLKER. HARDINGE S. GIFFARD.

1875.

▲ 19916.-107. 25-12/84.

10,724.