TNAG-0720-FCO40-918-Capital-punishment-in-the-Dependent-Territories-1978 — Page 120

CONFIDENTIAL

HKC, 385)

нка

RECE

DE INDEX

18 JAN 1978

MO. 51

RY

crio a la ven

PA

Jole

82

MR STEWART

No

JJ.

&

CAPITAL PUNISHMENT IN DEPENDENT TERRITORIES

1.

24

Please refer to your minute of 6 January and attached draft submission.

2. I regret that I do not feel able to concur in the draft as it stands since it ignores one important constitutional point, namely the fact that the United Kingdom Parliament has abolished the death penalty for murder in the United Kingdom is not a relevant circum- stance in deciding whether or not to commute a death sentence imposed in a particular case under the law of a dependent territory

3. It would be a different matter if Parliament was expected to legislate shortly in order to abolish the death penalty for murder in the dependent territories but this would not be the case.

4. Under the Creech-Jones doctrine the Secretary of State is not precluded from considering any case in which he is doubtful about the rightness of letting the law take its course in a dependent territory and can bring any relevant circumstances to the attention of the Governor, who can be relied upon to take them into account. "Abrogation" of the doctrine should make no difference - the Secretary of State would still of course be able to consider all relevant circumstances, but he would not be granted a licence to allow irrelevant circumstances to affect his consideration of the case.

5. So far as I am aware, we are not concerned at the way in which Governors exercise the Royal prerogative, as they are scrupulous in taking into account all relevant circumstances, including factors brought to their notice by the Secretary of State and his advisers. (If the proposal to abrogate the Creech-Jones doctrine were motivated to dedare simply by a wish publicly and formally that the S of S would consider

every capital case over again, thus producing a two-tier system, then the draft motion would meet the purpose provided that the last twelve words were omitted. In principle the Governor and the Secretary of State should always come to the same conclusion, as each would be taking account of the same circumstances. Nevertheless a two-tier system is open to strong objection because of the risk that the Governor and his advisers might be discredited because the Secretary of State felt obliged to overrule them, as well as the element of delay, and the fact that the FCO is not as well able to assess the circumstances as the authorities in the territory concerned)

6

•

What we are concerned to do is take account of abolitionist sentiment in the House of Commons, hence of course the last twelve words of the motion. There could of course be circumstances in which the House of Commons could by motion properly enjoin the

Secretary of State to advise the Crown to exercise one of its powers in a particular way, and the Secretary of State could hardly be criticized if thereafter he advised the Crown accordingly.

/Unfortunately

CONFIDENTIAL

Page 120Page 121