Sunday, 10 June 2012

Treason

Sir Thomas More
In the recent post on "Marital Coercion", it was commented that "the law of treason is ancient, obscure, complex and extremely rarely used."   In 1940, during the second reading of the Treachery Bill, the Home Secretary of the day (Sir John Anderson 1882-1958) described the Treason Acts as "antiquated, excessively cumbrous .... " (see Hansard 22nd May 1940).   This whole area of law is a disgrace to our criminal law and reform is long overdue.  In a 1977 working paper, the Law Commission recommended that all treason statutes should be repealed and replaced with an offence of helping an enemy with whom this country is at war and a peacetime offence of aiming to overthrow constitutional government by force.

The law of treason dates from the Treason Act 1351 (25 Edward III c.2)     (The Act appears to be declaratory: stating that which was already understood to be treason).  The Act was originally written in Norman-French though the link supplied here also shows a translation.  Treason is based on the loyalty ("allegiance") due from subjects to rulers.  Only those owing allegiance to the Crown my be liable.

Over the centuries, by judicial interpretation of the 1351 Act, the scope of treason was extended considerably.  In effect, new treasons came
to be laid down by judicial interpretation - sometimes referred to as "constructive treasons".  This was particularly the case with interpretation of the heads of treason to do with "compassing or imagining the Death of our Lord the King" or "waging war against our Lord the King in his Realm" or being "adherent to the King’s Enemies in his Realm, giving to them Aid and Comfort in the Realm, or elsewhere."

Kenny's Outlines of Criminal Law (14th edition, 1933) stated - "These interpretations were often violently artificial, almost setting the statute of Edward aside by their forced constructions."  Kenny went on to point out the evident dislike of 18th century juries to such constructions.  Examples cited by Kenny include (a) the case of Lord George Gordon who, for his share in riots of 1780 was indicted for 'levying war' and (b) the cases of Hardy, Horne Tooke and Thelwall who, in 1794, were indicted for a constructive 'compassing of the King's death."  (See 1794 Treason Trials and also the role played by the famous barrister Thomas Erskine).

The Treason Act 1795 was enacted and, in effect, reduced certain conduct from treason to felony.

Over the centuries, additional Treason laws were enacted but the majority of these have now been repealed.  For example, Sir Thomas More was charged with treason under the Treason Act 1534.  In 1981, Marcus Serjeant discharged 6 blank cartridges from a gun as the Queen rode past.  He was tried under the Treason Act 1842 s.2 and sentenced to 5 years imprisonment.  The 1842 Act was passed after a  number of incidents such as that in May 1842 when John Francis fired a shot at Queen Victoria - (here).

Penalty for treason:

Historically, treason was a capital offence.  The method of execution varied but was often conducted in a hideous manner (Wikipedia) though, since the Forfeiture Act 1870, the method of execution used was hanging.  It has always been a mystery to me how some of the execution methods survived the Bill of Rights 1689 with its supposed prohibition on "cruel and unusual punishments."  Treason is no longer a capital offence since the death penalty no longer exists in the United Kingdom.  The UK has adopted Protocol 13 of the European Convention on Human Rights which requires the total abolition of the death penalty, even in time of war.  No derogation from this is permissible.  Thus, the maximum penalty for treason is life imprisonment: Crime and Disorder Act 1998 s.36.

Appeal of Casement - Sir John Lavery
Treason in the 20th century:

The 20th century saw a number of treason trials: Lynch 1903; De Jager v Attorney-General for Natal [1907] AC 326; Casement 1916 (and see Conor Gearty "The Casement Treason Trial in its legal context"); Joyce 1945; Amery 1945; Thomas Haller Cooper 1946 and Walter Purdy 1945.  Of these, Casement, Joyce and Amery died on the gallows.  De Jager (whose case arose in South Africa) was sentenced to imprisonment.  In the other cases, the death sentence was commuted to imprisonment.  The proceedings in Joyce did no credit to British justice.  Joyce was an American citizen but he was convicted on the technicality that he had once possessed (though never used) a British passport.  He was also executed in defiance of the principle that the death penalty should not have been exacted where there was a dissenting appellate judgment - (see Geoffrey Robertson QC - "Freedom, the Individual and the Law - 7th ed., 1993).

There can be little legal doubt that treason has been committed numerous times since World War 2 but the criminality has been dealt with by way of other serious offences.  It has not been necessary to trundle out the law of treason and, in some instances, to have done so would have only served to exacerbate an already bad political situation.

Treachery Act 1940:

In the early days of World War 2, the Treachery Act 1940 was enacted and it covered much of the same ground as treason in relation to those lending assistance to the enemy.  The Home Secretary (Sir John Anderson) explained the reasons for the Act - Hansard 22nd May 1940.  One reason was to avoid a number of procedural features of treason trials.  An example of this was the so-called "Trial at Bar" where the defendant would face a number of judges and a special jury.  (Roger Casement's Trial was a Trial at Bar and see also the article here commenting that the trial was "one of the low points of English justice.")  Since the Treason Act 1945, a treason trial is conducted by the same process as a murder trial (i.e. trial on indictment before Judge and Jury) - see Criminal Law Act 1967 section 12(6).  The Treachery Act 1940 was finally repealed by the Criminal Law Act 1967.

Treason Felony Act 1848:

Another antique must be mentioned - the Treason Felony Act 1848 .  See the cumbersome and lengthy text of section 3.  The Act appears to have been passed to enable prosecutions to be brought for certain conduct which might also have amounted to "constructive treasons."  The practical effect was to avoid the use of the death penalty in such cases.  (Transportation was substituted for the death penalty.  In turn, this has been replaced by imprisonment for life).

In R v Attorney-General ex parte Rusbridger [2003] UKHL 38 the editor of The Guardian sought a declaration as to whether he might be guilty under section 3 of the Treason Felony Act 1848 if the newspaper conducted a campaign advocating the peaceful and constitutional replacement of the monarchy by a republican form of government.  See the summary of the case at One Crown Office Row.   The House of Lords upheld the Attorney-General's argument that a claim for a declaration as to the meaning of section 3 should not be allowed to proceed.   However, Lord Steyn considered the general thrust of section 3 and concluded that to punish advocacy of republicanism would be contrary to Article 10 of the European Convention on Human Rights. Whatever had been the position before the 1998 Human Rights Act came into operation, it was difficult to think of any rational argument justifying the criminalisation of the conduct of citizens who wished to argue for a different form of government. Clearly, this part of the 1848 Act was part of a bygone age and did not fit into the fabric of our modern legal system. However, it was for the legislature, not the courts, to keep the statute book up to date.

Unfortunately, for whatever reasons, the legislature has failed to do that.

Commonwealth: 

See the differing definitions of treason in the Criminal Code of Canada s.46Crime Act 1961 New Zealand; and Criminal Code Act 1995 (Australia).  In relation to Australia, the Sheller Committee rejected the proposition that the offence of treason was not appropriate in a modern democratic society - see here

Lord Goldsmith's Citizenship Review - 2008:  

The report by the former Attorney-General Lord Goldsmith QC - "Citizenship: Our Common Bond" - contained some valuable discussion relating to treason and, in particular, the concept of "allegiance."  The report was critical of the law but concluded that "the offence of treason nevertheless ought to be retained in order to recognise the particularly grave nature of acts that are committed with the aim of overthrowing government or harming fellow members of society by those who, either as UK citizens or residents, owe a duty of loyalty to the UK. On the basis that there is a case for retention of the law of treason, albeit that it would be used sparingly, I recommend thorough reform and rationalisation of the law."

This is, of course, an entirely reasonable stance to take even if it is still resonant of a desire by the powerful to make particular examples of those found to be traitors.  However, is there any real need to retain an offence of treason at all.  The conduct referred to by Lord Goldsmith could, as the Law Commission suggested 35 years ago, be dealt with satisfactorily by new statutory offences - Law Commission Working Paper No. 72 - Treason, Sedition and Allied Offences (1977).


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14 comments:

  1. I find this an interesting observation: "It has always been a mystery to me how some of the execution methods survived the Bill of Rights 1689 with its supposed prohibition on "cruel and unusual punishments"."

    I recall that the issue of cruel and unusual punishment was a feature of this case Williams -v- Home Office [1981] 1 All ER 1151. The court adopted a "hands-off" approach. Incredibly, the court failed to grasp that the ECHR concerned minimum standards, that is, the floor and not the ceiling. The Control Unit regime was in the basement! In the event, it was the Guardian coverage which led to the Control Unit being closed. The Home Office then opened Special Units!

    I was interested to read in John Bellamy's The Tudor Law of Treason. Suspected poor traitors were subjected to terrible conditions of imprisonment in the Tower of London, whereas suspect traitors of high social position were kept in conditions suitable to their status. "The Earl of Northumberland in Elizabeth's reign was thus allowed the liberty of five large chambers and two large entries, three of which chambers and one of the entries lay upon two fair gardens within the Tower wall. The windows, furthermore, were reported as letting in much air and light".

    In my view, this shows that the concept of residual liberty exists within imprisonment. And that the HoL wrongly decided Hague and Weldon by stating that the concept does not exist.

    The law likes to keep it simple, that is, there is lawful imprisonment and unlawful imprisonment but not unlawful imprisonment within lawful imprisonment. So, the almost forgotten tort of misfeasance in public office was revived to cover the subject of prisoners subjected to poor conditions.

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    1. Thank you for the interesting comment. Whatever the phrase "cruel and unusual punishment" means, there can be no doubt that the usual method of execution came within that term. (If it does not, then the phrase is meaningless)!! Thus, I think that any executions by this method after the Bill of Rights were unlawful. However, as far as I know, nobody ever seemed to argue the point before the courts.

      Historically, there is no doubt that, in treason cases, rank has had much to do with how the condemned man was treated. Sir Thomas More (pictured) was sentenced to death but Henry VIII permitted his execution by beheading. This was considered to be a more merciful end and it very probably was !!

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  2. Treason has been charged quite recently - 2007 and the fertiliser bomb plot - they defendants were all convicted of treason as far as I can recall.

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    1. No - the charges were conspiracy to cause explosions with intent to endanger life. See CPS Fertiliser Bomb Case.

      This case might be a good illustration of a situation where treason might possibly have been charged but another offence was used.

      Operation Crevice

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    2. The case also featured the ‘stark’, ‘exceptional course’ of much of the pre-trial process & the trial itself being held ‘in camera’ (see the ruling here) resulting in the case being one of the longest in English legal history.

      The case featured the evidence of a supergrass (Mohammed Junaid Babar - mentioned in the CPS link; Babar is now a free man) & also 'evidence'extracted from SA (Salahuddin Amin) in Pakistan.

      There is also the , It is noted that 5 of those found guilty in the Operation Crevice/Fertiliser plot were convicted under section 3(1)(a) of the Explosive Substances Act 1883. (Khyam and Garcia were also convicted under section 57(1) of the Terrorism Act 2000).

      No bomb was allegedly made in the UK in Fertiliser plot however the 1883 Explosive Substances Act was used as a convicting mechanism.


      Compare this to the failed bomb plot of July 21 2005 where apparently there were actual bombs that failed to go off (deliberately or otherwise). In this case, the charge of conspiracy to cause explosions likely to endanger life, was left off the court indictment, however conspiracy to murder was the convicting mechanism!

      [Incidentally, an appeal at the ECHR, regarding the July 21st 'failed bombs' case, has recently been reported on.

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    3. @ Sinclair - many thanks for your comments and the very useful links which you took the trouble to include.

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  3. "Only those owing allegiance to the Crown my be liable."

    So what of a Queen's Council handling a case which, if successful, is extremely damaging to the state? Can a QC actually serve two masters?

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    1. The rank of QC is now really just a matter of status within the legal profession. The merits of retaining this rank have been debated considerably in recent years. Historically, there were certain restrictions relating to a QC (or KC) appearing against the Crown but these no longer exist. For more see here.

      QCs frequently lead in cases where the outcome might be viewed as "damaging to the State." Let it be remembered that it is the State which chooses to prosecute a person and, if so, on what charges. The State must therefore take whatever risks there are in the decision to prosecute.

      The QC (like any barrister) serves only the interests of justice.

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    2. Thank you for your response. Yes the status symbolism is jealously sought after. But more my point was that QC's are specifically required to take an oath of allegiance to the Crown. It is now common place for QC's to successfully represent cases involving a death as result of some military or police action and the State is held accountable.

      But what if a case involves something more serious on a level of an Administrative Practice which goes beyond the unlawful actions of one or several state agents? What if an Administrative Practice could be established where there is evidence of willful illegality or violation and that the abuse had been authorised or tolerated at the level of the state itself, namely at the level of the Executive with the authority to order or promote the practice. See Donnelly v UK [1974]19. while I would expect any lawyer to baulk at representing such a case but a QC would be exposed to a charge of treason if he/she succeeded or maybe even if they did not succeed?

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  4. Just like the rank of QC itself, the taking of an Oath of Allegiance is, in my opinion, outdated and unnecessary. However, I know that many would disagree with me.

    In legal practice, QCs often appear against the government (Crown). The Binyam Mohamed litigation - (possible British complicity in rendition / torture) - is an example. I do not see why a QC should be exposed to a charge of treason for agreeing to represent or actually representing a person in a civil case against the Crown or by representing a person accused in a criminal case.

    Interestingly, in Northern Ireland, two applicants for QC were unwilling to take an oath which included a reference to the Crown - here.

    The Casement case was interesting in that it seems that no English KC could be found who was willing to represent him. He was represented by the Irish Serjeant-at-Law Sullivan. I do not believe that any such thing would happen today. In fact, i suspect that "silks" would almost be queuing up to take a treason case !! Perhaps one of them - and several read this blog - will tell me that I am wrong. I would certainly be interested to hear.

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    1. Thank you for that and what you say does sound about right. As you mention about NI I was mindful of previous allegations against lawyers being "unduly sympathetic with terrorists" which could be construed as one step away from leveling a charge of treason. But then I thought, not so much, about Islamic militants because as you say that is pretty much settled, but what if a QC pushed too hard on the legality of the State going to war? The State could counter with an allegation of treason in its defense?

      And yes, two barristers refused to take the oath and became the first Senior Counsel(one went on to become a high court judge and presided over the non-jury Trial of Twomey and others).

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    2. Thank you for your comments. Many lawyers in Northern Ireland did their duty and it is true that some were accused of being unduly sympathetic to one faction or another. The, as yet unresolved, Finucane case offers an example of such accusations being made by politicians who ought to have known that making such allegations was an extremely dangerous thing to do. Volumes could be written about Northern Ireland and the law - particularly over the 30 years or so prior to the Good Friday agreement - see, for example, War on Terror - Lessons from Northern Ireland.

      There were some cases before the English courts in which the legality of the Iraq War was raised. However, the judges avoided giving an answer by using the notion of "non-justiciability." This is yet another interesting line to explore at some stage.

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    3. Thank you for the link to the CAJ Report.

      I think the greatest protection now days for any lawyer from an allegation of treason or being 'unduly sympathetic' with enemies of the State, is the evolution of transparency and democracy.

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  5. An event which I did not refer to in the post was the Unilateral Declaration of Independence (UDI) in Rhodesia in 1965. The Attorney-General of the day (Sir Elwyn Jones QC) informed the House of Commons that there was abundant authority that the UDI was treasonable:

    "In view of my responsibility as Attorney-General, it would not be appropriate for me to indicate here any conclusion on criminal liability in any individual case. But it is right that I should point out in general terms that there is abundant authority for the conclusion that conduct of the kind that has taken place is treasonable. So would be steps taken by anyone whether in Rhodesia or in this country, or by anyone else owing allegiance to the Crown, with the intention of furthering the objectives of the illegal regime or inciting others to take such steps." Hansard 12th November 1965

    Elwyn Jones went on to become Lord Chancellor.

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