TNAG-0720-FCO40-918-Capital-punishment-in-the-Dependent-Territories-1978 — Page 121

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Unfortunately the draft motion could not be regarded as proper in so far as its purport is to licence the Secretary of State to advise the Crown to commute death sentences imposed under the law of the dependent territories simply because UK law no longer provides for [death sentences in murder cases.

7. If the nettle is to be grasped by means of a motion in the House, that motion should really be about legislation, not the

(largely imaginary) limitations imposed by the Creech-Jones formula.

In addressing the House of Commons on 5 December 1977 the Secretary of State said: "Merely to revoke the Creech-Jones formula would give some freedom to the Secretary of State, but it would not allow him to implement, as an act of policy, total abolition. He would be able to consider all the circumstances and would have a greater degree of discretion than at present, which is circumscribed to a miscarriage of justice, but if the issue of abolition is to be discussed, that can be dealt with only by legislation." (Hansard Col 1020). Secretary of State was, of course, quite right.

Where some marginally relevant circumstance existed, he might be more disposed to leniency than the Governor, but he could not, any more than the Governor would, commute the capital sentence simply because some members of the House of Commons felt that the death penalty should not be applied in the dependent territories.

The

8. If the thought of having legislation, or even debating the idea, is insupportable, but it is felt to be imperative to commute all death sentences, even if no mitigating circumstances exist, perhaps the simplest course is just to commute, as Sir Alec Douglas Home did in the Tsoi case, whenever a case crops up in which the Governor has not felt able to commute, ie to proceed by stealth and not in reliance of some motion in the Commons. Such a course would ignore the constitutional point to which I have already adverted, but at least it would not advertise the unconstitutionality.

9. The fact remains that there is only one right method of abolishing the death penalty in the dependent territories and that is by legislation.

A.R.R.

9 January 1978.

CC: Sir Ian Sinclair

Mr Duff

Mr Collins

PS Lord Gronwy-Roberts

AR RUSHFORD

DEPUTY LEGAL ADVISER

P.S.

on

Pl. see

minior amdonts

shed's 2 and 4 of draft-

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CONFIDENTIAL