TNAG-1701-FCO40-2373-Hong-Kong-Powers-of-Attorney-(Amendment)-Ordinance-1987-1987 — Page 19

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1

COHACN

Private Secretary

CONFIDENTIAL

File

36

Hud 373 FROM ний

RECEIVED IN REGISTON

17 DEC 1787

DESK OFFIC

INDEX

O Hum

Hong Kong Department

DATE: 7 December 1987

CARRIAN TRIAL: MR JUSTICE BARKER

cc:Mr Gillmore

Mr Fifoot, Deputy Legal

Adviser

1.

You asked for advice on Lord Benson's letter of 8 December,

which you sent to me on 15 December.

2.

I attach:

BU A

(i)

Lord Benson's two letters of 8 and 21 October;

C

(ii)

my submission of 16 October;

D

(iii)

Mr Parker's acknowledgement to Lord Benson, sent on 16

October.

3. The allegations which Lord Benson made about Mr Justice Barker and his conduct of the Carrian Trial have been taken in hand by the Governor. He sought our advice on the action which would be taken if similar allegations were made against a British High Court judge, and on his constitutional position. This was given to him at the beginning of November. In the meantime the Attorney-General of Hong Kong had referred to the Court of Appeal a number of points of law which directly called in question decisions of Mr Justice Barker in the Carrian trial. The Governor decided (quite properly in our view) that he should not pursue the allegations about

Mr Justice Barker's capacity and personal conduct until that reference had been heard and determined. The reason for this was that investigation into Mr Justice Barker's capacity and conduct will necessarily involve consultation with, and possible action by, the Chief Justice, who was presiding in the Court of Appeal on the

reference.

4. The Court of Appeal's judgment was delivered by the Chief Justice on 19 November: it was critical of, and dissented from,

CONFIDENTIAL