TNAG-0720-FCO40-918-Capital-punishment-in-the-Dependent-Territories-1978 — Page 123

Reference

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Mr Doff

Ref the attached folio. I spoke to Rushford over the Montserrat constitution and he said that Montserrat was not,

1.

Coverl

in all probability, subject to amendment of its constitution by Order in

(not Bermuse PC)

but our other dependencies are.

1+ Act 1 Pihament

2. I have discussed this matter with Rushford and he is still firmly of the view that the proper course to take is to abolish capital punishment in the DTs by legislation. As you know I and others share this view. Abolition of the death sentence in our case would involve the passing of Orders-in-Council for Caymans, BVI, Anguilla and Turks and Caicos and probably an Act of Parliament for Montserrat. The former measure can be carried out quietly, the latter much more slowly thus territories would be out of step with each other. However, if a resolution were passed by the House calling upon HMG to introduce legislation to abolish capital punishment in DTs, this would. provide good grounds for there to be a moratorium on capital punishments being carried out in DTs pending enactment of such legislation. As I recall, this was the case in Britain when the abolition of capital punishment was first considered by Parliament in the early 1950s - James Camb was, I believe, reprieved because of this. This would seem a more satisfactory way of going about things than the abbrogation of the Creech-Jones doctrine.

3. W.r.t. the devolution of the prerogative of mercy in capital cases to be removed from the Governor by Order-in-Council I originally thought this to be a possibility, but when examined logically I doubt its worth it is simply another way of abrogating the Creech-Jones doctrine, leaving unaltered the hub of the problem, which is the continuation in being of death sentences in the DTS. Abrogation of Creech-Jones or devolution of the prerogative of mercy from Governor to Secretary of State, merely passes the hot potato from Governor to Secretary of State - why not instead throw away the hot potato by aboli- shing death sentences in DTs? Whichever of these 2 methods. is used, the net result is that in cast iron cases, if he wishes to avoid death sentences being carried out, the Secretary of State is going to have to consider and take into account purely British considerations and Parliament's views on hanging, which are at present irrelevant to the law and considerations of the territory herein lies the weakness of the Secretary of State's position and he could I believe find himself in difficulties in justifying his advice to commute. If however, Parliament, who is lawfully responsible for the DTS, expresses by motion its will to abolish the death penalty in the DTs, then the Secretary of State could uite properly treat this view of Parliament as relevant ir considering commutation of any death sentence, and he could do this pending the actual enactments abolishing the death sentence DIS.

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4. For the reason given above I feel uneasy about the fresh submission Not too much comfort should be read into the Governor of HK'sability to commute as a matter of form because he enjoys political power that no other Governor does.

4

BĚ 18-77

$% 10;76

17 January 1978

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