From the archives: amending the treason laws

Amid reports that the government wants to expand the scope of treason in English law, it is worth going back to statute and reminding ourselves what is already there

It was reported last month that the government intends to re-examine the existing laws against treason so that they can include a new category of offenders, essentially those who take up jihad against the UK, hackers and “malign actors” who swear allegiance to a foreign power. On the face of it, this is hardly a premature move: the Treason Act 1351, the earliest extant statute which defines that grave offence, is one of the oldest laws still in operation, although it has been extensively amended over the past 650 years. Edward III, who was king when it was passed, would certainly not have understood the challenge of hackers or cyber warfare, though, arguably, he could have grasped the concept of those who waged holy war, and those who swore allegiance to other rulers.

You may have missed the story, but a prosecution was brought under the treason laws only this summer. A man who was arrested carrying a crossbow at Windsor Castle on Christmas Day 2021 was charged with intending to cause harm to the sovereign and with possessing a firearm or other offensive weapon in her presence with the intention of injuring or alarming her. Admittedly, the man in question, Jaswant Singh Chail, is being charged not under the “Great Treason Act” but under a subsequent statute, the Treason Act 1842. This was passed after an unfortunate and disgruntled subject, John William Bean, attempted to fire a flintlock pistol at Queen Victoria as she travelled along the Mall. The gun was largely loaded with paper and tobacco and, unsurprisingly, it misfired. Bean was seized but his action was not taken seriously at first and he was sent away, but he was arrested by police a home in Clerkenwell later that day once it became clear what he had done.

Bean was initially charged with high treason, but there was some unease as he had seemingly aimed at the ground and had never had any intention to harm the Queen. The Metropolitan Police believed that he had simply been trying to attract attention; Bean told them he wanted to be transported to Australia—the last convict ship would not arrive until 1868—as he was tired of life in England. The treason charge was plainly absurd, so he was instead charged with a misdemeanour of assaulting the Queen, though even that seemed somewhat like overkill. After a six-hour trial at the Old Bailey in front of Lord Arbinger in August, Bean was sentenced to 18 months’ imprisonment.

The law clearly had a problem. The penalty for treason was death, but there was a general recognition that sentencing Bean to hang for discharging a pistol harmlessly would have been excessive. The Queen’s husband, Prince Albert, asked parliament to create a statute for lesser treason offences, and the result was the 1842 act which brought into existence the offences with which Chail has now been charged. He will face a trial next March.

Capital punishment for murder was abolished in Great Britain in 1969, having been in suspension since 1965. Abolition was extended to Northern Ireland in 1973. It remained available for arson in a royal dockyard until 1971, and espionage until 1981, though it was unthinkable that it would have been carried out for these offences. But it remained in theory on the statute book for piracy with violence and treason until September 1998 and for a series of purely military offences until that November. That year execution was finally outlawed as a minor provision of the Crime and Disorder Act 1998. It would, in any event, have been unlawful under the Human Rights Act 1998 which incorporated into UK law the protections enshrined in the European Convention of Human Rights; article 2 of the ECHR, which protects the right to life, prohibits the death penalty in general terms.

(It is an irony often remarked upon as calls persist for the UK to withdraw from the ECHR that the convention’s drafting was led by a British lawyer, Sir David Maxwell-Fyfe, in his capacity as chair of the Council of Europe Consultative Assembly’s Committee on Legal and Administrative Questions; he was an eminent Scottish-born KC at the English Bar who had briefly been attorney general and had served as the UK’s deputy chief prosecutor at the International Military Tribunal at Nuremberg. He would go on to be home secretary and then lord chancellor, complaining when he was dismissed by Harold Macmillan in 1962 that he had been given less notice than a cook. Macmillan responded that it was easier to find lord chancellors than good cooks.)

It is, then, wholly in keeping with UK legal tradition to amend and update the treason laws to accommodate new offences and unforeseen circumstances, although the doyen of legal commentators, Joshua Rozenberg KC, has questioned whether this is a potentially hazardous example of legislating in haste. The government’s new offences will carry a life sentence. The impetus for this reform has come in part from Tom Tugendhat, formerly chair of the House of Commons Foreign Affairs Committee and now security minister at the Home Office, who co-authored a report in 2018 for the think tank Policy Exchange on the matter.

The independent reviewer of terrorism legislation, Jonathan Hall KC, has long warned against amending the 1351 Act. He expressed concern three years ago that terrorists might regard the offence of “treason” as a badge of honour, and risked politicising delicate and important trials. Some lawyers have argued that the existing statute, despite its venerable age, remains flexible. The last prosecution was in 1945, when William Joyce, who had broadcast propaganda from Nazi Germany as “Lord Haw-Haw”, was indicted on three counts of “traitorously adhering to the King’s enemies”. As a precedent, it is somewhat tarnished. Joyce had been born in America before holding a British passport, and had become a naturalised German citizen in 1940, so the grounds for treason were uncertain at best; moreover it emerged during his trial at the Old Bailey that he had lied about his nationality to obtain his British passport, so technically it had never been valid and he had never, in fact, been a British subject.

This technicality was not robust enough for the atmosphere of post-war London. The attorney general, Sir Hartley Shawcross KC, prosecuting in person, argued that even if Joyce’s British passport had been obtained fraudulently, it had entitled him to protection until his naturalisation in Germany. It was enough for the jury, who found him guilty; enough too for the Court of Appeal which upheld his conviction in November 1945; and enough for the Appellate Committee of the House of Lords (this was many decades before the creation of the Supreme Court), which confirmed the result in December (although one lord of appeal in ordinary, Lord Porter, dissented). Joyce was hanged on 3 January 1946. The historian A.J.P. Taylor would remark acidly in his 1965 book English History 1914 - 1945, “Technically, Joyce was hanged for making a false statement when applying for a passport, the usual penalty for which is a small fine.”

Non-lawyers might also be surprised to hear of some of the other offences contained within the Treason Act 1351. We all have a general idea of what treason usually consists of: somehow conspiring or acting against your own country or ruler. But there are other provisions. It is, for example, treason to “compass or imagine the Death of our Lord the King”, which could be interpreted very widely; though Michael Dobbs was not prosecuted in 1993 when he wrote To Play The King, which is set after the accession of a new king and therefore does, arguably, imagine (if only by implication) the death of the then-Queen.

Anyone who has cast an admiring glance at the Princess of Wales (as she now is) should also have second thoughts. It is an offence under the Treason Act to “violate… the Wife of the King’s eldest Son and Heir”, though perhaps Her Royal Highness might consider it the ultimate compliment that she was worth going to prison for. (The same applies to violating “the King’s eldest Daughter unmarried”, which does not currently apply.)

It is also treason to kill the lord chancellor, which I hope is of some comfort to Dominic Raab amid suggestions that some civil servants at the Ministry of Justice are not wholly delighted at his return.

Ought the government to press ahead with its plan? I am unsure. I am—as I repeatedly stress here and elsewhere—not a lawyer, though I have drafted some would-be parts of statute in the form of Private Members’ Bills and amendments, so I am happy to see what the legal consensus is and how it stacks up against the political arguments. But I do hold a general dislike of what I call public relations laws, that is, legislation introduced to deal with specific incidents and show that the government is taking action, when such incidents are already adequately covered by other laws. If the cases which the government wishes to capture here can be prosecuted under existing law, that is in general better than adding to the vast array of laws and regulations to which we are already subject under our four separate legal systems.

This has been a diversion from my usual fare, but I am an historian and a traditionalist, and I find it fascinating when mediaeval law stumbles into the modern arena. It is, I hope, a small but useful reminder (for everyone) that laws do not disappear. Unless they have specific sunset clauses, they are permanent additions to our corpus. So remember: legislation is not just for Christmas.