TNAG-0721-FCO40-919-Capital-punishment-in-the-Dependent-Territories-1978 — Page 48

it would be most unusual (a)) in the case of Bermuda,

unconstitutional) to effect such an amendment without

consultation with the local governments, and the local

governments would be unlikely to concur. If nevertheless

the constitutions were amended, the decision in every case

would rest exclusively with the Crown, as advised by the

Secretary of State, who would necessarily have to rely on

the Governor for guidance as to all rdevant circumstances.

Abrogation of the Creech-Jones Doctrine

10. It has been suggested that if the Creech-Jones "doctrine"

were "abrogated" this would give greater freedom of decision

to the Secretary of State, and in particular enable him

to take into account extraneous matters which Governors

do not usually consider. What Mr Creech-Jones said was

simply a description of a long-standing practice; and,

in strict law, no formal steps need be taken to alter

the practice. Any Secretary of State is free, if he

wishes, to reconsider all aspects of a capital case

and reach his own decision as to whether the Crown' shoul

be advised to exercise the residual prerogative. This

has been the practice when the Crown has been petitioned

for clemency. There was also a period when all Hong Kong

cases were considered in detail in the F C O and

commented on to the Governor before he reached his

decision and, as already mentioned in paragraph 8 above

when the Governor decided in the Tsoi case not to

commite, the Secretary of State advised the Crown to

do so.

11. A departure from the practice described by Mr Creech-Jones

would produce a two-tier system under which any case in

which the Governor had decided to let the law take its

;

course would automatically be reviewed in the F C 0.

· CONFIDENTIAL

/The disadvantage