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HKG 386/1
RECEIV
21 MAR 1978
DESK OFF
Mr Ewen Fergusson
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No
9. 51
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CAPITAL PUNISHMENT IN THE DOTS
1. Your ephemeral note arising from Mr Stewart's submission of 3 March has come to me this afternoon (in the absence of Sir Ian Sinclair and Mr Freeland).
2. Since it would be unconstitutional for the Secretary of State to give Governors directions as to how they should exercise the Royal prerogative of mercy delegated to them under the constitutions of the DOTS in capital cases, I dislike any communication to them that could be regarded as an attempt to influence them in the exercise of their discretion. If in any particular case we think a Governor has overlooked, or does not attach due weight to, a circumstance relevant to his decision we can of course remind him of it, and we have done this on occasion. It is however another matter to try and steer Governors in the direction of commutation in cases where no relevant circumstances exist to justify it and where it is desired by United Kingdom Ministers simply because of abolitionist feeling in this country.
3. For this reason I prefer the revised draft telegram and letter to the earlier drafts. I have added a pièce to the second sentence of para 2 of the draft letter, which was unclear as it stood. I also feel some hesitation about the second sentence of para 3. As a statement of fact, the sentence is of course true, but what is the implication? Is it that Governors should always
commute lest there be a storm of angry protest here in Britain? If so,
I should prefer to leave it out.
4. My inclination would be to send the telegram but not the letter.
5..As for the emissary, I am not keen on this if his mission is to guide Governors into straining their powers, and their relations with their Governments and Advisory Committees, by commuting a death sentence when no relevant circumstances exist to justify doing this, in other words I should not like the emissary to be the instrument of unconstitutional pressure on the Governors to act unconstitutionally. He could of course express the hope that Governors would exercise clemency whenever grounds for clemency exist, but this is what they do already, usually with the support of their Advisory Committees or Executive Councils, that many more death sentences pronounced in the DOTS are commuted locally than are allowed to stand. It seems to me to be asking too much of the Governors to require more of them than this.
A.R.R.
AR Rushford
Deputy Legal Adviser
SO
:
17 March 1978
coi Sir Tan Sinclair
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