Administration of Justice (Capital Cases) (Hansard, 11 August 1947)

Mr. Creech Jones

Yes. On 3rd April 1 promised a further statement regarding procedure in capital cases in the Colonies.

The administration of justice in criminal matters in the Colonies follows broadly the system in this country, and there is for most Colonies a Court of Appeal corresponding to the Court of Criminal Appeal here. Every convicted person has the right to petition the Judicial Committee of the Privy Council for special leave to appeal from a decision of a Colonial court, and this right is frequently exercised in capital cases.

In the Apedwa case the initial cause of delay was the fact that the first petition to the Privy Council was not lodged by the accused's advisers until eight months after the date of the dismissal of the appeal by the West African Court of Appeal. The second main cause of delay was the course which the advisers of the convicted men took (a course which is without precedent in the experience of the Colonial Office) of trying to upset the convictions by taking the various proceedings of which I told the 231W House in my statement of the 5th March. These proceedings led to three further petitions to the Privy Council all of which have been dismissed; and the Judicial Committee have themselves expressed their "grave concern and disapproval" regarding the course followed.

I have been in consultation with the Lord Chancellor and the Law Officers on the question of the steps that can be taken to aroid, for the future, such delays as occurred in the Gold Coast case. To secure the lodging of a petition without delay, rules have been made within the last two or three years by Colonial Governors fixing a time within which the various steps must be taken, "both in the Colony and here, leading up to the lodging of the petition. These rules are not made under Statute, but they are simply executive rules depending on the power of the Governor to postpone the carrying out of the sentence. (When the Gold Coast case began these executive rules had not yet been made there and this caused the delay in the first instance.) The procedure is that the accused have three weeks in which to furnish proof to the Governor that they have sent the necessary instructions to solicitors in this country. I then fix a date, usually one month after arrival of the papers in this country, within which the accused's advisers must lodge the petition with the Judicial Committee. When once the petition is lodged the Judicial Committee hears it without delay.

These rules will be strictly adhered to and if a petition is not lodged in time the sentence will proceed—unless of course the case is one in which the Governor thinks that the prerogative of mercy should be exercised.

If a Governor comes to the conclusion that any proceedings taken by accused persons either in the Colony or by way of petition here are without real substance he will not allow these proceedings to cause the postponement of sentence. I have considered whether any further steps, whether by amendment of the law or otherwise, should be taken to avoid delays, but as procedure by way of petition to the Privy Council depends on the right of the subject to petition the King and the prerogative right to admit these petitions, any legislation on the subject would be inadvisable. Moreover, the rules and practice I have indicated 232W should be quite sufficient to prevent any repetition of the happenings in the Gold Coast case. I may add that this procedure corresponds to that which has been in force regarding appeals from India for some years, and has been found satisfactory.

I turn now to the prerogative of mercy. As I explained in my statement of 5th March, His Majesty by Letters Patent or Order in Council expressly delegates his prerogative of mercy in criminal cases to Colonial Governors, and this includes both the power to pardon an offender either absolutely or conditionally and the lesser power to respite (i.e. 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 I 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 be 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 233W 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 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 indication 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 intervene, 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 Colonies.