Jihadis shouldn’t be tried under our medieval Treason Act

The criminal lawyers’ “bible”, Archbold’s Criminal Pleading, Evidence and Practice no longer includes the law on High Treason because “it seems unlikely in the extreme that there will in the foreseeable future be any prosecutions.” Curious readers are referred to earlier editions.

Recent events, however, have led others to disagree and there have recently been calls, for example by the persuasive and provocative Melanie Phillips in today’s Times, for prosecutions for treason to resume. And last week Foreign Secretary Phillip Hammond revealed that “discussions have taken place in government” about trying British jihadis for this ancient crime.

Although it is no longer to be found in the pages of Archbold, the Treason Act 1351 defines the crime in a way that could hardly be clearer if it was written in Minoan Hieroglyphics:

Auxint p’ceo q diʋses opinions ount este einz ces heures que cas, q’nt il avient doit estre dit treson, & en quel cas noun, le Roi a la requeste des Seign’s & de la Coe, ad fait declarissement q ensuit, C’est assavoir; q”nt hōme fait compasser ou ymaginer la mort nře Seigne’ le Roi, ma dame sa compaigne le Roi, ou de lour fitz primer & heir; ou si hōme violast la compagnie le Roi, ou leisneisce fill le Roi nient marie, ou la compagnie leisne fitz & heir du Roi; & si hōme leve de guerre contre nře dit Seign’le Roi en son Roialme, ou soit aherdant as enemys nře Seign’le Roi en le Roialme, donant a eux eid ou confort en son Roialme ou p aillours, & de ceo pvablement soit atteint de oʋt faite p gentz de lour condicion … et si hōme tuast Chanceller, Tresorer, ou Justice nře Seign’ le Roi del un Baunk ou del autre, Justice en Eir & des assises & toutes auťs Justices assignez a oier & ťminer esteiantz en lours places en fesantz lours offices: et fait a entendre qen les cases suisnomez doit etre ajugge treson [q sestent] a nře Seign’ le Roi & a sa roial Majeste; …

That, of course, is the definitive text from the time of Edward III, although for those whose Norman French is a little rusty there is a generally accepted translation into modern, or at least modernish, English:

Whereas divers Opinions have been before this Time in what Case Treason shall be said, and in what not; the King, at the Request of the Lords and of the Commons, hath made a Declaration in the Manner as hereafter followeth, that is to say; When a Man doth compass or imagine the Death of our Lord the King, or of our Lady his Queen or of their eldest Son and Heir; or if a Man do violate the King’s Companion, or the King’s eldest Daughter unmarried, or the Wife the King’s eldest Son and Heir; or if a Man do levy War against our Lord the King in his Realm, or be adherent to the King’s Enemies in his Realm, giving to them Aid and Comfort in the Realm, or elsewhere, and thereof be attainted of open Deed by the People of their Condition: and if a Man slea the Chancellor, Treasurer, or the King’s Justices of the one Bench or the other, Justices in Eyre, or Justices of Assise, and all other Justices assigned to hear and determine, being in their Places, doing their Offices: And it is to be understood, that in the Cases above rehearsed, ought to be judged Treason which extends to our Lord the King, and his Royal Majesty:

Until 1814 the punishment for High Treason, though not set out in the 1351 Act itself, was the appalling one of “hanging, drawing and quartering.” The preamble to The Treason Act 1814 (which abolished the punishment) records what this involved for traitors:

“… that they should be drawn on a hurdle to the place of execution and there be hanged by the neck, but not until they are dead, but that they should be taken down again, and that when they are yet alive their bowels should be taken out and burnt before their faces, and that afterwards their heads should be severed from their bodies, and their bodies be divided into four quarters, and their heads and quarters to be at the King’s disposal.”

In practice the punishment was sometimes made even worse – if that were possible – by the traitor’s “privy members” being cut off and burned before the evisceration commenced.

 

The 1814 Act abolished hanging, drawing and quartering and substituted simple hanging as the punishment for High Treason.

Mr Hammond, who has always seemed a decent and humane man, if a little monochrome, has not publicly called for the restoration of the death penalty (which, for treason, was abolished by S.36 of the Crime and Disorder Act 1998). On the other hand Philip Hollobone MP, the most prominent Parliamentary advocate of using the Treason Act, has sponsored a bill reintroducing hanging although he has not, at least not yet, suggested drawing, disembowelling or even quartering.

Quite properly The Foreign Secretary has not revealed many details of the discussions that have taken place. In answer to a Parliamentary question from Mr Hollobone he said:

“We have had a discussion about the allegiance question. We have seen people declaring that they have sworn personal allegiance to the so-called Islamic State.

That does raise questions about their loyalty and allegiance to this country and about whether, as my honourable friend rightly says, the offence of treason could have been committed.

I will certainly draw his remarks to the attention of the home secretary, who ultimately will be the person who needs to look at this.”

As well as the drawing the attention of the Home Secretary to Mr Hollobone’s remarks Mr Hammond will presumably ask the Attorney General, Jeremy Wright QC, to advise whether British jihadis who have “sworn allegiance to the so-called Islamic State” have committed treason. Mr Wright, whose legal experience extends to being junior counsel in a fraud trial and involvement in a few “cases involving a video link,” appears to have been promoted to his post on the basis that he will go along with whatever madcap ideas are suggested to him, so it may be that he will be quite happy to endorse the idea.

If he is wise, however, he will warn that any such prosecutions would almost certainly be ill-advised.

It is entirely possible that there has never been a fair trial for treason. As Gerald Slade K.C. said in argument in the leading case of Joyce v. DPP [1946] A.C. 347 “Of all the cases which have disfigured our legal history and outraged the common law, treason trials have been the worst.” Perhaps one should not expect mediaeval justice to have complied with all the provisions of Article 6 of the European Convention on Human Rights, but even by the standards of their time treason trials have almost always been notably unfair.

Thomas More, for example, was largely convicted of treason because of his silence. Although the indictment against him was so long “… it contain’d all the Crimes that could be laid to the charge of any notorious Malefactor; and Sir Thomas professed it was so long, that he could scarce remember the third part of what was objected therein against him,” it boiled down to refusing to say that Henry VIII was Head of the Church.

Even the Attorney-General accepted that he had done nothing treacherous:

Sir Thomas, tho’ we have not one Word or Deed of yours to object against you, yet we have your Silence, which is an evident sign of the Malice of your Heart: because no dutiful Subject, being lawfully ask’d this Question, will refuse to answer.

That is what would criminal lawyers would now call drawing an “adverse inference” from silence, and it proved very adverse indeed for the saintly More.

 

The Bloody Assizes

One hundred and fifty years after Henry VIII, in the aftermath of Monmouth’s rebellion against James II, the appalling Lord Chief Justice Jeffreys presided over a series of treason trials on the Western Circuit, now collectively known as the “Bloody Assizes.”

Jeffreys boasted that he had hanged more traitors than all his predecessors put together, and he may well have been right. Not one of his victims had a fair trial and the result, for example in Somerset, was vividly described by Macaulay:

Somersetshire, the chief seat of the rebellion, had been reserved for the last and most fearful vengeance. In this county two hundred and thirty-three prisoners were in a few days hanged, drawn, and quartered. At every spot where two roads met, on every marketplace, on the green of every large village which had furnished Monmouth with soldiers, ironed corpses clattering in the wind, or heads and quarters stuck on poles, poisoned the air, and made the traveller sick with horror. In many parishes the peasantry could not assemble in the house of God without seeing the ghastly face of a neighbour grinning at them over the porch. The Chief Justice was all himself. His spirits rose higher and higher as the work went on. He laughed, shouted, joked, and swore in such a way that many thought him drunk from morning to night. But in him it was not easy to distinguish the madness produced by evil passions from the madness produced by brandy. …

One wretched man moved the pity even of bitter Tories. “My Lord,” they said, “this poor creature is on the parish.” “Do not trouble yourselves,” said the Judge, “I will ease the parish of the burden.” It was not only against the prisoners that his fury broke forth. Gentlemen and noblemen of high consideration and stainless loyalty, who ventured to bring to his notice any extenuating circumstance, were almost sure to receive what he called, in the coarse dialect which he had learned in the pothouses of Whitechapel, a lick with the rough side of his tongue. Lord Stawell, a Tory peer, who could not conceal his horror at the remorseless manner in which his poor neighbours were butchered, was punished by having a corpse suspended in chains at his park gate.

Even those who had harboured fleeing rebels were indicted for treason. Alice Lisle, for example was an elderly widow, who was indicted:

“ … well knowing John Hicks, of Keinsham, in the County of Somerset, Clerk, to be a false Traitor, and to have Conspir’d the Death and Destruction of the said King, and to have levy’d War against him, within his Kingdom of England, Did, in her Dwelling House, at Ellingham aforesaid, Traiterously Entertain, Conceal, and Comfort, the said John Hicks, and cause Meate and Drink to be deliver’d to him, against the duty of her Allegiance, the King’s peace, &c.”

When one of the Crown witnesses, an unfortunate labourer called Dunne, failed to give sufficiently damning evidence Jeffreys (who had long since taken over the examination of the witness) exploded:

“Why you vile wretch! … But, it seems the Saints have a Charter for Lying; they may Lie and Cant, and Deceive, and Rebel, and think God Almighty takes no Notice of it. A Turk has a better Title to an Eternity of Bliss than the Pretenders to Christianity; for he has more Morality and Honesty in him. Sirrah! I charge you in the presence of God, tell me one true, What other Persons did you see that Night?”

These days it is customary for Judges to say something to witnesses once they have concluded their evidence. Usually it is along the lines of “thank you very much for giving your evidence, these courts could not function without people who give up their time to assist in the administration of justice.”

The official transcript records Judge Jeffreys’s rather crisper observation:

Jeffreys: Thou art a strange prevaricating, shuffling snivling, lying Rascal.

 

Two Twentieth Century Traitors: Casement and Joyce

The two most famous treason trials of the twentieth century each managed to demonstrate the flexibility of a Norman French parchment. Just as in the days of Henry VIII, judges were able to interpret it as freely as they wished when the objective was to hang traitors.

Sir Roger Casement was tried for treason in 1916. Whilst in Germany he had arranged to land German weapons in Ireland for use in rebellion against the British. Whilst the evidence that he had done so was overwhelming, he had not done anything treacherous in the United Kingdom because he had been arrested the moment he stepped foot in Ireland. Casement’s treachery had been committed entirely abroad. Generally speaking an Act of Parliament is considered to confer jurisdiction only over crimes done within this country and whilst various distinguished jurists had expressed opinions, there was no satisfactory precedent for prosecuting a British subject for acts of treason done outside the United Kingdom.

Casement was convicted but appealed on the the grounds that the Treason Act 1351 conferred no jurisdiction to try him for a crime committed overseas. It seems exceedingly unlikely, especially during wartime, that any Court would have allowed his appeal but he had the particular misfortune to have it heard by a Court including one of the worst judges since Jeffreys, Mr Justice Darling, “a microcosm of conceit and empty-headedness” as one contemporary journalist accurately described him.

Darling had to construe the crucial Norman French original words of the statute, which were unpunctuated:

ou soit aherdant as enemys nře Seign’le Roi en le Roialme donant a eux eid ou confort en son Roialme ou p aillours …

these are generally translated as:

or be adherent to the King’s Enemies in his Realm giving to them Aid and Comfort in the Realm or elsewhere ….

Without punctuation the statute is ambiguous: does it merely criminalise the King’s subjects “in the King’s Realm” who give aid and comfort to his enemies wherever the enemies might be; or does it apply to the King’s subjects wherever the subjects might be? Unsurprisingly Darling J and his colleagues (including the far better judge, Atkin J) favoured the statutory construction which led to to Casement’s execution, leading to the widespread view that Casement was “hanged by a comma.”

In fact, argument at the appeal turned not so much on a comma as on how the Roll on which the original statute was written had been folded.

There was, for example, this extraordinary exchange:

Mr. JUSTICE ATKIN: If you look at the Statute Roll in that 
place where there is an undoubted break in the Parliamentary
 Roll there is a mark which we looked at very carefully with a 
magnifying glass. It is not certain that it is a break just as it 
appears in the Parliamentary Roll, but we were inclined to think
 it was a break, not made with a pen, but a break which had come
 by the folding in the course of all these six centuries. If you put
 that break after " donant a eux eid ou confort en son roialme " 
it is very much the worse for your argument. 

Mr. SULLIVAN If anything can be inferred from that, but 
I understood brackets did not exist in the sense of brackets. 

Mr. JUSTICE DARLING They are not brackets in the sense 
that they have not got a transverse line that runs at right angles,
 but there is a very distinct line drawn right through the line of 
writing, and that occurs every here and there where we should 
now perhaps put what I think are called breaks in the print. 
Where we should put brackets these old scribes put a transverse
line. It was very natural. They were doing it with a pen. 

Mr. JUSTICE ATKIN I think they really are to represent 
commas; they are reproduced in the reprint of the statute as 
commas. The Statute Roll is printed in the revised statutes 
exactly correctly. I suppose you would infer, if there was any 
importance to be attached to the difference, that they corrected 
the Parliamentary Roll from that which is the authority, namely,
 the Statute Roll. 

Mr. SULLIVAN It ought to be so, but I submit you cannot 
draw any inference from punctuation. The whole matter will
 have to be determined without any theory as to punctuation
 arising from a fortuitous circumstance which is not the same
 in the two rolls, and, at all events,when your lordships are
 dealing with a penal statute, I humbly submit that crimes
 should not depend on the significance of breaks or of commas.
 If a crime depended on a comma, the matter should be 
determined in favour of the accused, and not of the Crown. 

Their Lordships disagreed.

But if Casement’s conviction was a little dubious, that of William Joyce, otherwise known as Lord Haw-Haw, in 1945 was even more so, though it must be conceded that he was hardly a very attractive figure.

Joyce was an American citizen with an Irish mother. He grew up in Ireland (at a time when it was part of the United Kingdom). In 1933 he applied for a British passport, falsely declaring that he was a “British subject.” He applied for a renewal of the passport in 1938, again falsely declaring that he was a British subject. Days before the outbreak of war he used the passport to travel to Germany. Once the war started he broadcast Nazi propaganda to Britain, doing so in “English of the haw-haw, dammit-get-out-of-my-way variety.” The charge on which he was convicted related to the period from 1939 – early 1940, before he acquired German citizenship.

Despite never having been a British subject Joyce was convicted of treason, the House of Lords holding, with one somewhat half-hearted dissenting speech, that having acquired the benefits of a British passport, albeit fraudulently, he owed a corresponding duty of allegiance to the Crown.

The other notable treason trial of 1945 was that of John Amery an Harrovian drop-out who, despite having a Jewish grandfather, supported Germany during the war and tried to raise a pro-German battalion from British prisoners of war. Instead of arguing a defence (which would anyway have been hopeless) based on his attempt to gain Spanish citizenship, he pleaded guilty and tried to rely on insanity to avoid execution, so his case set no legal precedent. He does, however, deserve a footnote in history for his laconic and appropriately English last words, uttered to Albert Pierrepoint the hangman: “I’ve always wanted to meet you Mr Pierrepoint, although not, of course, under these circumstances.”

Could it be used today?

 If history is any guide, the Norman French of the Treason Act has been interpreted, twisted and indeed literally folded so much that it might well be malleable enough to make British jihadis guilty of treason. On the other hand it is also sufficiently opaque to ensure that any such prosecution would be legally dubious have an uncertain outcome and, like almost every other treason trial in history, unfair.

To identify just one or two obvious potential problems:

Are jihadis “the Queen’s enemies?”

We are not at war with the “Islamic State” so the relatively modern precedents of Casement and Joyce would not assist. Prosecutors would have to look instead to precedent from the murky archives of long forgotten political trials from the eighteenth century and earlier. The ghost of Judge Jeffreys (a well respected lawyer as well as a sadist and a drunkard) might return to the Old Bailey to be cited as binding authority.

Whilst it could be said that members of IS are “the Queen’s enemies,” at least when we are trying to bomb them in Iraq, there is plenty of scope for arguing the contrary. There is very little evidence that they are actively fighting against Her Majesty, and in Syria we are not even fighting against them. It is hard to see any precedent, even if one goes back to the time of Henry VIII, for bringing treason charges against people assisting those with whom we were not at war, or who were not at least accused of trying to overthrow, or trying to undermine, Her Majesty’s Government.

If a jihadi has formally renounced British Citizenship can he still be guilty of treason?

It was accepted by those prosecuting Joyce that once he had acquired German citizenship he was no longer capable of committing treason. On the other hand, the “Islamic State” is not internationally recognised so it may be that any transfer of allegiance to IS, or renunciation of British citizenship, would be legally irrelevant.

Is a fair trial possible when the statute creating the relevant crime is written in a language that nobody any longer speaks?

There would seem to be at least the strong possibility that such a charge would breach the provisions of Article 6 of the European Convention on Human Rights. Unless the law is reasonably certain, a trial is unfair.

Under the S.3 of the Human Rights Act 1998, the 1351 Act would now have to be “read and given effect in a way which is compatible with the Convention rights.” My guess is that for this reason, were the Act to be invoked today all previous case law on its meaning, including all the interesting arguments about the way it has been folded and creased, would be rendered irrelevant and the Supreme Court would have to take upon itself the difficult task of construing its meaning all over again. Edward III would spin in his Westminser Abbey tomb and the litigation would last for years.

Since we have perfectly good laws of murder and wide-ranging Terrorism Acts there should be no need to invoke the Treason Act.

Quaint though it may be to have a 14^th Century Act of Parliament still in force, laws should not exist to populate some sort of park for endangered Statutes.

However appropriate it might seem to prosecute those who wish to return to a mediaeval state with our very own mediaeval law, it would not be right to do so.

The time has come not to use the Act, but to repeal it and perhaps rewrite a replacement in comprehensible modern English.

Until that is done the Treason Act 1351 should be left to gather dust.