British Jihadists and treason

21 October 2014 by Rosalind English

The news last week was that the Foreign Secretary has proposed a revival of a fourteenth century statute in order to prosecute British jihadists who travel to Iraq or Syria to fight. Cries of foul are coming from the usual quarters, and there’s even a protest that the Strasbourg Court would object, which, given the current controversy surrounding that tribunal, may be a good reason in itself for such a move.

In the current froth over the Convention versus “home grown” human rights, there is much talk of the Magna Carta. So may be of interest to some that in the opinion of one of the greatest legal scholars in history, Edward Coke, the Statute of Treason had a legal importance second only to that of the “Great Charter of the Liberties of England”, piloted by feudal barons to limit King John’s power in 1215.

Politics aside, how would this work? On the face of it, a law which has been on the statute books for centuries, and is found to be applicable to a current state of affairs, is an equum donatum whose dental health should not be examined too closely. Although the last person to be convicted under the 1351 Treason Act – the Nazi propagandist William Joyce (otherwise known as Lord Haw Haw)- was hanged, now any British citizen convicted of the offence could be given a life sentence.

Interpretation of the Treason Act: “Hanged on a comma”

For anyone wishing to understand the provenance of the Treason Act and its application over the past six centuries, the Casement appeal is required reading – not least for its pellucid prose and clear exposition of the early days of the relationship of common and statute law.

In August 1914, the Irish Nationalist Roger Casement planned to persuade Germany to sell ammunition to Irish rebels and provide military leaders so that the rebels would stage a revolt against England, diverting troops and attention from the war on Germany. He himself set sail to Germany in the early months of the Great War, negotiating a deal with the Germans that should they ever arrive at the shores of Ireland, they would not come as invaders. He attempted to recruit an “irish brigade” from Irish prisoners of war in Germany to be trained to fight against Britain, although this ultimately proved unsuccessful.

On his return to Ireland, three days before the Irish uprising in April 1916, Casement was arrested on charges of treason and espionage against the Crown. There was difficulty in prosecuting him under the 1351 Treason Act as his activities had taken place on German soil and the law seemed only to apply to crimes in Britain. Nevertheless, he was convicted and sentenced to be hanged.

The Court of Criminal Appeal upheld the decision by the King’s Bench that Casement had committed

 high treason by adhering to the King’s enemies elsewhere than in the King’s realm, to wit, in the Empire of Germany, contrary to the Treason Act, 1351 (25 Edw. 3, stat. 5, c. 2).

The words ” within the realm ” were of vital importance. In the fourteenth century many of the English barons held lands in France. This meant that they were subjects of the French King as well as of the English King. If the two Kings were at war with each other these ” amphibious barons ” had fight for their liege lord as a contingent of knights to the opposite army. It stood to reason then, that if adhering to the King’s enemies without the realm were treason, these barons by rendering service to the French King would be in danger of forfeiting their lands in England. It was therefore entirely within their interest to exclude from punishment all cases of adhering to the King’s enemies outside the realm and to confine treasonable adherence to cases of adhering within the realm. Which is exactly what they did, and that is why the Act was drafted as it was. So the defence argument went. It was argued on Casement’s behalf that none of the authorities provided sufficient grounds to make treasonable an act committed outside the King’s realm:

a man who outside the dominions adheres to the enemy is outside the common law and outside the Act of Edward III. which declared it. The meaning of that statute, as of all statutes, is to be derived from the words read in their natural sense unelucidated or unobscured by the counsel of commentators however eminent.

The Lord Chief Justice did not accept this interpretation. In his view, and that of the rest of the court, the words ” giving them aid or comfort within his realm ” were explanatory of the words ” be adherent to the enemies of our Lord the King in the realm,” and the passage, omitting the explanatory words, would then read ” be adherent to the enemies of our Lord the King in the realm …. or elsewhere.” This was, in the Court’s view, not only a possible construction, but was in truth the “only reasonable construction when it is remembered that the enemies of our Lord the King will mostly be found outside the realm”. As the offence was that of adhering to the King’s enemies, the words ” or elsewhere ” did apply to the adhering, therefore the defendant lost his case.

The words ” giving to them aid and comfort” may be read as a parenthesis ; yet I do not confine the application of the words ” or elsewhere ” to that parenthesis ; I think they apply just as much to the parenthesis as to the words which precede it. My view is, although it is not necessary to state it for the purposes of this case, that the words ” or elsewhere ” govern both limbs of the sentence—both the adhering to the King’s enemies and the aid and comfort to the King’s enemies—and that it is an offence to adhere within the realm or without the realm to the King’s enemies, and it is equally an offence to adhere within the realm to the King’s enemies by giving them aid and comfort without the realm.

The reason why Casement was famously said to have been “hanged on a comma” was because when the Act was read in the original Anglo-French, placing a comma in the unpunctuated prose meant that the text “in the realm or elsewhere” could be read to apply to where acts were done and not just to where the “King’s enemies may be”.

Treason in the “war against terror” 

So what parts of this ancient statute would be most serviceable to the government in dealing with home-grown jihadists?  The modern definition of treason, both here and in the United States, is broadly as follows:

“to aid or comfort the state or its agents with which war is engaged, or whether a state of war exists or not, any attempt or conspiracy to harm the head of state”

A person is guilty of “high treason” (“petty treason” does not concern us here) under the Act if they planned a number of things against the Sovereign, including

• “compassed or imagined” (i.e. planned; the original Norman French was “fait compasser ou ymaginer”) the death of the King
• levied war against the King in his Realm;
• adhered to the King’s enemies in his Realm, giving them aid and comfort in his Realm or elsewhere

According to the Wikipedia entry, the Act originally envisaged that further forms of treason would arise that would not be covered by the Act, so it legislated for this possibility. The words from “Et si per cas” onwards have been translated as:

And because that many other like Cases of Treason may happen in Time to come, which a Man cannot think nor declare at this present Time; it is accorded, That if any other Case, supposed Treason, which is not above specified, doth happen before any Justices, the Justices shall tarry without any going to Judgement of the Treason till the Cause be shewed and declared before the King and his Parliament, whether it ought to be judged Treason or other Felony.

We live in interesting times. In 2008 the Law Commission  recommended that the Treason Act should be abolished in peacetime. But war is not what it was in William Joyce’s day – a sequence of build up of hostilities, official alliances by treaty, declaration, battle, defeat, truce and reparations. Ironically, conditions prevailing at the moment are not dissimilar to those which led to the original Act being passed: large states and international alliances are not officially at war with each other, but the global threat from unpredictable acts by loose alliances of individuals becomes more pressing by the day.   Going back to the Casement appeal, it is notable that one of the reasons why the Chief Justice was so convinced that this Act should have extra-territorial effect is that without it, it would have no bite –

Is it probable that the law of an island realm would regard those traitors, if any, who aid and comfort the King’s enemies abroad by remaining at home, and ignore that larger number who would give greater aid and comfort by joining the enemy abroad ? If it were so, adherence to the King’s enemies would be punishable only when the realm was invaded by a foreign Power; for the number of traitors found at home adhering to the King’s enemies abroad would be negligible compared with those who would transfer themselves and their allegiance to the enemy abroad.

In answer to the criticism levelled at the proposal, that the Treason Act is too ancient and broadly worded to have application in the modern world, we need only to look at multitude of ancient common law torts and antiquated statutes that are used in the courts up and down the land. The Offences Against the Person Act may have been passed as “recently” as 1861, but it is merely a consolidation of old offences incorporated with little or no variation in their wording. It is the foundation stone for most prosecutions for causing personal injury in England and Wales. Now the Casement case has cleared away the problem of the extra-territorial reach of the Treason Act, any prosecution thereunder would encounter no more difficulty in interpretation or application than obtains with the multitude of offences under the OAPA.

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