TNAG-0721-FCO40-919-Capital-punishment-in-the-Dependent-Territories-1978 — Page 111

CONFIDENTIAL

RECEIVE

IVED

Mr Stratto

sightton

PS

нка 38671

VNO. 51

17 FEB 1978

DESK OFFICER

INDEX

DA

REGISTRY Action Taken

No

صص

158

Flag A 52

Flag B

Flag C 59

Flags D & E

(75

B

CAPITAL PUNISHMENT IN THE DEPENDENT OVERSEAS TERRITORIES

1.

The meeting of GEN 103 tomorrow will consider the Secretary of State's Memorandum GEN 103 (78)1 of 9 February, recommending that steps be taken in order to change the policy towards capital punishment in the Dependent Territories, a change which the last meeting of GEN 103 agreed was desirable. The memorandum concludes that the best way to achieve this would be through a motion in the House of Commons calling for an abrogation of the Creech-Jones doctrine. The main problem at tomorrow's meeting will be to obtain the support of the Law Officers for this proposal.

2. The recommendation is essentially the same as that which was originally made when the problem was first considered last July. However, at that time it was apparently envisaged by the Secretary of State's colleagues that the effect of abrogating Creech-Jones would be to enable the Secretary of State to recommend commutation

The Lord Chancellor automatically in every case that came before him. and the Attorney-General objected to this proposal on the grounds that it would not be constitutionally proper for the Secretary of State to adopt and to announce a policy whereby he would in future bind himself consistently to advise The Queen to commute a death sentence as this would be equivalent to changing the law by administrative action. The objection was accepted by the FCO Legal Adviser who further pointed out that if HMG were unwilling to introduce legislation into Parliament to abolish the death penalty for murder in the DOTS, the views of Ministers and other MPs in favour of abolition would not justify a policy of consistent advice in each case to commute the capital sentence where no other grounds for commutation existed.

3. These objections fall away, however, if the Secretary of State accepts that he must in good faith consider the individual circum- stances of each case and base his recommendation on those circumstances and not on any predetermined conclusion that the

CONFIDENTI AL