TNAG-2084-FCO40-2969-Death-penalty-in-Hong-Kong-1990 — Page 179

RESTRICTED

A

B

C

B.

3.

Practice in the Dependent Territories.

You asked in particular for my comments on our policy towards commutation of death sentences in the Dependent Territories. The last substantial review of this policy took place in 1986 and I attach a copy of the relevant papers. They give you the details of our policy in the Caribbean DTS and Bermuda. I also attach a copy of a despatch of 25 January 1989 from the Governor of Hong Kong setting out the history of our policy in that territory.

4. The death penalty is retained in seven Dependent Territories (list attached). We have two different policies on commutation: one for Hong Kong and one for the Caribbean DTS and Bermuda.

5.

Policy on the latter derives from the 1947 Creech Jones Doctrine. This places the exercise of the prerogative of mercy in the hands of Governors (the Secretary of State would normally intervene only in the most exceptional circumstances where there was evidence of a miscarriage of justice). Once the judicial appeal processes (including appeal to the Judicial Committee of the Privy Council) have been completed, the Governor is constitutionally bound to consult an advisory committee (generally local Ministers and/or other senior officials and representatives of the community). The committee advises, according to the circumstances, whether the sentence should or should not be commuted. But the ultimate decision is the Governor's alone.

6.

As regards Hong Kong, all death sentences have been commuted by the Governor since 1967, when Lord Shepherd said in answer to a question in the House of Lords that the Government would disapprove of any future carrying out of the death penalty in Hong Kong. By custom, the Executive Council is asked to advise what alternative sentence they would propose if the Governor commuted a death sentence, rather than whether the sentence itself should be commuted. The justification for the difference in policy between Hong Kong and the other DTS appears to be that Hong Kong is the only one without representative government.

7. You will see from the papers on the 1986 review that there is unease within the Office and on the part of all the Governors concerned about continuing with the Creech - Jones Doctrine. I share this unease because:

a) We are answerable to Parliament for our Dependent Territories and Parliament is opposed to the death penalty. In 1965 the Murder (Abolition of the Death Penalty) Act became law. Its provisions were made permanent by Parliament in 1969.

Since then Parliament has, on a number of occasions, declined by a substantial majority to reintroduce the penalty. Ever since abolition in this country, the Creech - Jones

HUMABX/2

RESTRICTED