TNAG-0721-FCO40-919-Capital-punishment-in-the-Dependent-Territories-1978 — Page 51

Enclosure:No. 1 lo Circular despatch of 12th Decembor, 196, Bala

COLONIAL EMPIRE

Administration of Justice (Capital Cases). ·

MR. DUMPLETON asked the Secretary of State for the Colonies whether he is now able to make statement regarding procedure in capital cases in the Colonies.

MR. CREECH JONES: Yes. On 3rd April, I promised a further statement regarding procedure in capital cases in, the Colonies.

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I turn now to the prerogative of mercy. As I explained in my statomant of 5th March, IIis Majesty by Letters Patent or Order in Council expressly delegates his prerogative of morey in criminal cases to Colonial Governors, and this includes both the power to pardon an offendor either absolutely or conditionally and the lesser power to respite (ie., postpone) sentence. Further, the Royal Instructions give a Governor the most precise instructions as to the exercise of the power of pardon in capital cases; he must call for a written report from the Trial Judge; he must consider the case in Executive Council, to which he may summon the Judge, and may require him to produce his notes of the trial; but it is the Governor himself who is to decide whether a pardon or reprieve is or is not to be granted. These provisions are common form in Colonial,constitutions. It is absolutely clear, therefore, that the effect of these instruments is to give power of pardon to the Governor. In the Gold Coast case the Governor in fact commuted the sentences on two of the prisoners at an early stage, and at the last he commuted the sentences on two others for reasons which he explained in a statement made to the Legislative Council on 28th March, a copy of which I have placed in the Library of the House,

I come now to the position of the Secretary of State. I am advised, as Į previously informed the House, that the delegation by His Majesty to Colonial Governors of the power of pardon does not entirely empty the King of his own prerogative of mercy. That is, I understand, the legal position. If a petition is presented to His Majesty praying for mercy, it is my duty to advise him what, if any, action should be taken upon it. The normal practice of the Secretary of State for the Colonies is not himself to intervene in an individual case and not to advise His Majesty to intervene. There would be most unfortunate results if the Secretary of State followed any other course. First, it would bo necessary for him to consider fully the facts of each case and all the considerations which bore upon it. That is a matter of great difficulty in London remote from the scene of the crime. It is unlikely that, if it were once understood that the Secretary of State is ready to intervene, numerous petitions would be sent to him or to His Majesty, and their consideration by him would be physically impossible. In capital cases, their mere consideration would cause just that delay which it is necessary to avoid. But further, and more important, for the Secretary of State to intervene would conflict with the plain intention of the constitutional instruments I have referred to, which set up a better machinery for deciding these matters than anything the Secretary of State could do here; and would. be contrary to the common sense of the situation, since the Governor, knowing all the circumstances, is in a better position to judge whether the prerogative of mercy should be exercised in any particular case. To this must be added the further consideration that the best safeguard for a careful decision y in so grave a matter is the undivided responsibility of the person who makes it. I do not, however, say that, if some exceptional case were brought to the Secretary of State's notice in which there were an indiention that a miscarriage of justice had occurred, he would shut his eyes to it. The Secretary of State would communicate with the Governor as the case required. The Governor would make any further investigations which might be necessary, and would obviously not proceed with the carrying

· out of a sentence if there were any real doubt about the case. It is inconceivable that, in order to prevent, a miscarriage of justice in such a case, I should have to advise His Majesty to intervena, and in practice, therefore, it is highly improbable that intervention by His Majesty on the advice of the Secretary of State would ever take place. I am convinced that to follow any other course would seriously impair the administration of justice in the Colonics.