TNAG-0721-FCO40-919-Capital-punishment-in-the-Dependent-Territories-1978 — Page 112

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sentence would be commuted.

The memorandum makes it clear that that

is what the Secretary of State will undertake to do.

4. The question may also arise of what circumstances it would be ch appropriate for the Secretary of State to take account of in reading

his decision. In paragraph 5 of the memorandum the Secretary of State suggests that he should make it clear to the House that among other things he would take account of their view. This may be challenged by the Law Officers, as indeed it has already been questioned by the FCO Legal Adviser who, in his minute of 16 January

said that, after the passage of a motion on the lines now proposed,

the FCO Legal Advisers "would be bound to advise the Secretary of

State that he must direct his mind only to relevant circumstances and not to irrelevant circumstances (such as pressure manifested in the House of Commons or in the media)". However, at a meeting with officials on 6 February the Secretary of State made it clear

that he intended, if a case arose, to take account of all

circumstances and that these would include political considerations

and, e.g. the risk of rioting.

...

5. If this question does arise, therefore, I recommend that the

Secretary of State should make it quite clear that the purpose of the change of policy is precisely to enable him to take full responsibility for the decision whether or not to commute death sentences, and that in taking that decision he must be free to take account of all circumstances including the political effects that his decision will have, both in the territory concerned and

in this country.

6. Mention may be made of a case pending in the British Virgin Islands where a man, Gaston Sylvester, is under sentence of death. The Secretary of State's colleagues may bring up their previous argument that there could be disadvantages in making a general change when a particular case was under consideration. The two cases are not compatible. In the Sylvester case the probability that the sentence will be commuted locally is very high.

(a) The trial judge recommended commutation as he did not believe that the jury had given fair consideration to the case made on behalf of the accused (a foreigner).

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