TNAG-0722-FCO40-920-Capital-punishment-in-the-Dependent-Territories-1978 — Page 113

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CONFIDENTIAL

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Mr Stewart, HK&GD

CAPITAL PUNISHMENT IN THE DOTS

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1 5 MAY 1978

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a HKG 241!4

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REGISTRY

Action Taken

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1. The PUS spoke to me this morning about the follow-up to my 218

letter of 19 April to Sir Clive Rose covering the paper which I had prepared on the legal and constitutional implications of the various alternatives to the existing procedures covering the exercise of the prerogative of mercy in relation to capital cases in the dependent territories.

2. It so happened that I had simultaneously received the attached letter from Sir Clive Rose (dated 24 April) in which Sir Clive suggests that the paper should be circulated now to GEN 103. The PUS was of the view that this would not be desirable. Ministers had decided to defer further consideration of this problem; and there seemed to be no particular reason for stirring things up again.

3. I duly put these considerations to Sir Clive Rose on the telephone this morning. He was (with some reluctance) persuaded that it would not really be desirable to circulate the paper to GEN 103; and he accepted that, if this were so, there would be no point in putting it round formally as a paper for the Official Group (GEN 99). He did however indicate that he would like to inform the Lord President that the paper had been prepared, although it was not proposed to circulate it to GEN 103.

4. This seems sufficient to hold the position, at least for the time being. I shall obviously have to reply formally to Sir Clive Rose in due course; and, in this context, I would be grateful if Mr Rushford could look at the revised concluding paragraphs and let me know if he has any comments.

5. One additional consideration does occur to me in connection with the handling of this problem. As you will be aware, the European Court of Human Rights has this morning determined (with only one dissenting opinion) that the practice of birching in the Isle of Man (as exemplified in the Tyrer case) constitutes degrading treatment prohibited by Article 3 of the European Convention on Human Rights. We will no doubt want to play this very slowly.

But, in the final analysis, if we are to comply with this judgement we will have to ensure that the Isle of Man, and the governments of those DOTS which still retain corporal punishment and to which the European Convention on Human Rights has been extended, abolish corporal punishment. The only alternative would be for us to promote UK legislation to achieve the same result, both in relation to the Isle of Man and in relation to the other DOTs concerned.

CONFIDENTIAL

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