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High treason in the United Kingdom

Under British law, high treason is the crime of disloyalty to the Sovereign amounting to an intention to undermine their authority or the actual attempt to do so. Offences constituting high treason include plotting the murder of the Sovereign; having sexual intercourse with the Sovereign's consort, with his eldest unmarried daughter or with the heir to the throne's wife; levying war against the Sovereign and adhering to the Sovereign's enemies, giving them aid or comfort; and attempting to undermine the lawfully established line of succession. Several other crimes have historically constituted high treason; they have included counterfeiting money and being a Roman Catholic priest in the realm.

The offence of high treason was once distinguished from petty treason (or petit treason), which was the murder of one's lawful superior. Petty treason comprised the murder of a master by his servant, of a husband by his wife, or of a bishop. Petty treason ceased to be a distinct offence from murder in 1828. The rest of this article is about high treason.

High treason was deemed greater than any other offence, and was often subject to extraordinary punishment, because it threatened the security of the state. A particularly horrific manner of execution known as hanging, drawing and quartering was often employed. Today the maximum punishment is life imprisonment. The last treason trial was in 1945, and the last execution for treason was in 1946.

Offences

High treason today comprises only:

See the English History section below for detail about the offences created by the 1351 Act.

In addition to the crime of treason, the Treason Felony Act 1848 (still in force today) created a new offence known as treason felony, with a maximum sentence of life imprisonment instead of death. Under the traditional categorisation of offences into treason, felonies and misdemeanours, treason felony was merely another form of felony. Several categories of treason which had been introduced by the Treason Act 1661 were reduced to felonies. While the common law offences of misprision and compounding were abolished in respect of felonies (including treason felony) by the Criminal Law Act 1967, which abolished the distinction between misdemeanour and felony, misprision of treason and compounding treason are still offences under the common law.

Northern Ireland

In addition to the acts of 1351, 1703 and 1848 described above, two further acts passed by the old Parliament of Ireland apply to Northern Ireland alone. The following is also treason:

  • Treason Act (Ireland) 1537:
    • attempting bodily harm to the King, Queen, or their heirs apparent;
    • attempting to deprive them of their title;
    • publishing that the Sovereign is a heretic, tyrant, infidel or usurper of the Crown;
    • rebelliously withholding from the Sovereign his fortresses, ships, artillery etc.;
  • Crown of Ireland Act 1542:
    • doing anything to endanger the Sovereign's person;
    • doing anything which might disturb or interrupt the Sovereign's possession of the Crown.

(Note that although the Irish Act of Supremacy 1560 is still in force, it is no longer treason to contravene it.)

History: England and Wales

In England the common law knew no clear definition of treason. Instead, it was for the King and his judges to determine if an offence constituted treason. Thus, the process became open to abuse, and decisions were often arbitrary. For instance, during the reign of Edward III, a knight was convicted of treason because he assaulted one of the King's subjects and held him for a ransom of £90. It was only in 1351 that Parliament passed legislation on the subject of treason. Under the Treason Act 1351, or “Statute of Treasons,” which distinguished between high and petty treason, several distinct offences constitute high treason; most of them continue to do so, while those relating to forgery have been relegated to ordinary offences.

First, it is high treason to "compass or imagine the death of our Lord the King, of our Lady his Queen, or of their eldest son and heir." The terms "compass or imagine" indicate the premeditation of a murder; it would not be high treason accidentally to kill the Sovereign or any other member of the Royal Family (Though someone could be charged with manslaughter or negligent homicide). However it has also been held to include rebelling against or trying to overthrow the monarch, as experience has shown that this normally involves the monarch's death. The terms of this provision have been held to include both male and female Sovereigns, but only the spouses of male Sovereigns. It is not sufficient to merely allege that an individual is guilty of high treason because of his thoughts or imaginations; there must be an overt act indicating the plot.

A second form of high treason comprehended by the Treason Act 1351 was having sexual intercourse with "the King's companion, or the King's eldest daughter unmarried, or the wife of the King's eldest son and heir." If the intercourse is not consensual, only the rapist is liable, but if it is consensual, then both parties are liable (as Anne Boleyn and Catherine Howard, wives of Henry VIII, discovered to their cost). The jurist Sir William Blackstone writes that "the plain intention of this law is to guard the Blood Royal from any suspicion of bastardy, whereby the succession to the Crown might be rendered dubious." Thus, only women are covered in the statute; it is not, for example, high treason to rape a Queen-Regnant's husband. Similarly, it is not high treason to rape a widow of the Sovereign or of the heir-apparent. Diana, Princess of Wales admitted that she had an affair with her riding instructor, James Hewitt, between 1987 and 1992. As she was then the wife of the Prince of Wales, heir to the throne, this fit the definition of high treason, and a national newspaper briefly attempted to have Hewitt prosecuted for what was then still a capital offence.

It is high treason "if a man do levy war against our Lord the King in his realm" or "if a man be adherent to the King's enemies in his realm, giving to them aid and comfort in the realm, or elsewhere." Conspiracy to levy war or aid the Sovereign's enemies do not amount to this kind of treason, though it may be encompassing the Sovereign's death. In modern times only these kinds of treason have actually been prosecuted (during the World Wars and the Easter Rising).

The Treason Act 1351 made it high treason to "slay the Chancellor, Treasurer, or the King's justices of the one bench or the other, justices in eyre, or justices of assize, and all other justices assigned to hear and determine, being in their places doing their offices."

The last types of high treason ascertained by the Treason Act 1351 were the forgery of the Great Seal or Privy Seal, the counterfeiting of English (later British) money and the importing of money known to be counterfeit. These offences, however, were reduced to felonies rather than high treasons in 1861 and 1832 respectively.

Finally, the Treason Act 1351 specified that the listing of offences was meant to be exhaustive. Only Parliament, not the courts, could add to the list. It provided that if "other like cases of treason may happen in time to come, which cannot be thought of nor declared at present", the court may refer the matter to the King and Parliament, which could then determine the matter by passage of an Act.

After the passage of the Treason Act 1351, several other offences were deemed to comprise high treason by Act of Parliament. Parliament seemed especially unrestrained during the reign of Edward III's successor, Richard II. Numerous new offences—including intending to kill the Sovereign (even without an overt act demonstrating such intent) and killing an ambassador—were declared treasonable. Richard II, however, was deposed; his successor, Henry IV, rescinded the legislation and restored the standard of Edward III.

In 1495 English law was extended to cover Ireland.

From the reign of Henry IV onwards, several new offences were made treasons; most legislation on the subject was passed during the reign of Henry VIII. It became high treason to deface money; to escape from prison whilst detained for committing treason, or to aid in an escape of a person detained for treason; to commit arson to extort money; to refer to the Sovereign offensively in public writing; to counterfeit the Sovereign's sign manual, signet or privy seal; to refuse to abjure the authority of the Pope; to marry any of the Sovereign's children, sisters, aunts, nephews or nieces without royal permission; to marry the Sovereign without disclosing prior sexual relationships; attempting to enter into a sexual relationship (out of marriage) with the Queen or a Princess; denying the Sovereign's official styles and titles; and refusing to acknowledge the Sovereign as the Supreme Head of the Church of England. Some offences, whose complexion was entirely different from traitorous actions, were nevertheless made treasons; thus, it was high treason for a Welshman to steal cattle, or for an assembly of twelve or more rioters to refuse to disperse when so commanded.

All new forms of high treason introduced since the Treason Act 1351 were abrogated by a single act passed at the beginning of the reign of Mary I, in 1553. Later that year, however, the offence of forging the Sovereign's sign manual or signet once again became high treason. Furthermore, the anti-counterfeiting laws were extended so as to include foreign money deemed legal tender in England. Thus, it became high treason to counterfeit such foreign money, or to import counterfeit foreign money and actually attempt to use it to make a payment. (But importing any counterfeit English money remained high treason, even if no attempt were made to use it in payment.) Mary also made it high treason to kill Philip II of Spain, her king consort, or to try to deprive him of his title.

William III made it high treason to manufacture, buy, sell or possess instruments whose sole purpose is to coin money. He also made adding any inscription normally found on a coin to any piece of metal that may resemble a coin high treason. George II made it high treason to mark or colour a silver coin so as to make it resemble a gold one.

Aside from laws relating to counterfeiting and succession, very few acts concerning the definition of high treason were passed. Under laws passed during the reign of Elizabeth, it was high treason for an individual to attempt to defend the jurisdiction of the Pope over the English Church for a third time (a first offence being a misdemeanour and a second offence a felony), or for a Roman Catholic priest to enter the realm and refuse to conform to the English Church. Under a law of James I, it was high treason to purport to release a subject of his allegiance to the Crown and to reconcile him or her with a foreign power. Charles II's Treason Act 1661 made it treason to imprison, restrain or wound the king. Although this law was abolished in the United Kingdom in 1998, it still continues to apply in some Commonwealth countries. Under laws passed after James II was deposed, it became treasonable to correspond with the Jacobite claimants (main article), or to hinder succession to the Throne under the Act of Settlement 1701, or to publish that anyone other than the individual specified by the Act of Settlement had the right to inherit the Crown.

Records from the Old Bailey, the Central Criminal Court in London, are published online for the period 1674 to 1913. These records include accounts for an enormous number of trials and executions. They include many references to people executed for high treason in respect of the specific offence of "clipping" which was where the edges of coins of the realm were cut or filed with a view to the perpetrator being able to spend the defaced coins and retain the precious metals taken from them.

History: after Union with Scotland

In 1708, following the Union of England and Scotland in the previous year, Queen Anne passed the Treason Act 1708, which harmonised the treason laws of both former kingdoms (effective from July 1709). The English offences of high treason and misprision of treason (but not petty treason) were extended to Scotland, and the treasonable offences then existing in Scotland were abolished. These were: "theft in Landed Men", murder in breach of trust, fire-raising, "firing coalheughs" and assassination. The Act also made it treason to counterfeit the Great Seal of Scotland, or to slay the Lords of Session or Lords of Justiciary "sitting in Judgment in the Exercise of their Office within Scotland". In general, treason law in Scotland remained the same as in England, except that when in England the offence of counterfeiting the Great Seal of the United Kingdom etc. (an offence under other legislation) was reduced from treason to felony by the Forgery Act 1861, this change was not made in Scotland until later, and though in England it has not been treason to forge the Scottish Great Seal since 1861, in Scotland this remains treason today. When the Scottish Parliament was set up in 1998, treason and treason felony were among the "reserved matters" it was prohibited from legislating about, ensuring that the law of treason remains uniform throughout the United Kingdom.

Between 1817 and 1820 it was treason to kill the Prince Regent. In 1832 counterfeiting money ceased to be treason and became a felony. In Ireland, counterfeiting seals ceased to be treason in 1861, in line with England and Wales.

First World War

A notable treason trial occurred at the Old Bailey in 1916 when Sir Roger Casement was accused of siding with Germany in World War I for his role in the Easter Uprising in Ireland. The charge against him said he tried to encourage Irish soldiers in the British Army to desert and fight for Germany as means of securing Irish freedom. Casement tried to argue that as an Irishman, he was a foreigner and could not be tried in an English court. This argument failed because he had been in the employment of the British Government as a diplomat for almost all of his adult life and had accepted a Knighthood and a pension from the British Government on his retirement in 1911. He was hanged in Pentonville Prison on 3 August 1916 and is regarded as a martyr by the Irish Republican movement.

The Titles Deprivation Act 1917 authorised the King to deprive peers of their peerage if they had assisted the enemy during the war or voluntarily resided in enemy territory.

Second World War

The last execution for treason in the United Kingdom was held in 1946. William Joyce (also known as Lord Haw Haw) stood accused of levying war against King George VI by travelling to Germany in the early months of World War II and taking up employment as a broadcaster of pro-Nazi propaganda to British radio audiences. He was awarded a personal commendation by Adolf Hitler in 1944 for his contribution to the German war effort. On his capture at the end of the war, Parliament rushed through the Treason Act 1945 (1945 c.44) to facilitate a trial that would have the same procedure as a trial for murder. Before the Act, a trial for treason short of regicide involved an elaborate and lengthy medieval procedure. Although Joyce was born in the United States to Irish parents, he had moved to Britain in his teens and applied for a British passport in 1933 which was still valid when he defected to Germany and so under the law he owed allegiance to Britain. He appealed against conviction to the House of Lords on the grounds he had lied about his country of birth on the passport application and did not owe allegiance to any country at the beginning of the war. The appeal was not upheld and he was executed at Wandsworth Prison on 3 January 1946.

It is thought the strength of public feeling against Joyce as a perceived traitor was the driving force behind his prosecution. The only evidence offered at his trial that he had begun broadcasting from Germany while his British passport was valid was the testimony of a London police inspector who had questioned him before the war while he was an active member of the British Union of Fascists and claimed to have recognised his voice on a propaganda broadcast in the early weeks of the war. The burden of proof on the prosecution in any British trial is usually much higher.

Treachery Act 1940

Until 1945 treason had its own rules of evidence and procedure which made it difficult to prosecute accused traitors, such as the need for two witnesses to the same offence. Consequently in the Second World War it was perceived that there was a need for a new offence with which to deal with traitors more expediently. The Treachery Act 1940 was passed creating a felony called treachery, to punish disloyalty and espionage. It was a capital offence, and was the only time the death penalty was applied to a new offence in the UK during the twentieth century. Seventeen people were shot or hanged for this offence instead of for treason. Theodore Schurch was the last person to be put to death for treachery, in 1946. He was also the last person to be executed for a crime other than murder. Josef Jakobs, a German spy executed for treachery, was the last person to be executed in the Tower of London.

The Treachery Act 1940 was suspended in February 1946, and was repealed by the Criminal Law Act 1967. By this time the Treason Act 1945 had replaced the rules of evidence and procedure in treason trials with those applicable to murder.

Liability

As a general rule, no British criminal court has jurisdiction over the Sovereign, from whom they derive their authority. As Sir William Blackstone writes, "the law supposes an incapacity of doing wrong from the excellence and perfection … of the King." Furthermore, to charge the Sovereign with high treason would be inconsistent, as it would constitute accusing him of disloyalty to himself. After the English Civil War, however, Charles I was tried for treason against the people of England. His trial and execution were irregular; they were more accurately products of a revolution, rather than a legal precedent, and those responsible were themselves tried for treason after the monarchy was restored (see List of regicides of Charles I). However, a person who attempts to become the Sovereign without a valid claim can be held guilty of treason. Consequently Lady Jane Grey was executed for treason for usurping the throne in 1553.

An alien resident in the United Kingdom owes allegiance to the Crown, and may be prosecuted for high treason. The only exception is an enemy lawful combatant in wartime, e.g. a uniformed enemy soldier on British territory.

A British subject resident abroad also continues to owe allegiance to the Crown. If he or she becomes a citizen of another state before a war during which he bears arms against the Crown, he or she is not guilty of high treason. On the other hand, becoming a citizen of an enemy state during wartime is high treason, as it constitutes adhering to the Sovereign's enemies.

Insane individuals are not punished for their crimes. During the reign of Henry VIII, however, it was enacted that in the cases of high treason, an idiot could be tried in his absence as if he were perfectly sane. In the reign of Mary I, the statute was repealed.

The Treason Act 1495 provides that in a civil war between two claimants to the throne, those who fight for the losing side cannot be held guilty of a crime merely for fighting against the winner.

Trial

Peers and their wives and widows were formerly entitled to be tried for treason and for felonies in the House of Lords or the Lord High Steward's Court, the former being used in every case except when Parliament was not in session. In the House of Lords, the Lord High Steward presided, but the entire House acted as both judge and jury. In the Lord High Steward's Court, the Lord High Steward was a judge, and a panel of "Lords Triers" served as a jury. There was no right of peremptory challenge in either body. Trial by either body ceased in 1948, since which time peers have been tried in the same courts as commoners.

Commoners, and now peers and their wives and widows, are entitled to be tried for high treason, and also for lesser crimes, by jury. Formerly, commoners were entitled to thirty-five peremptory challenges in cases of treason, but only twenty in cases of felony and none in cases of misdemeanours; all peremptory challenges, however, were abolished in 1988.

Another mode of trial for treason, and also for other crimes, is in the House of Lords following impeachment by the House of Commons. Normally, the Lord Chancellor presides during trials; when a peer is accused of high treason, however, the Lord High Steward must preside. By convention, however, the Lord Chancellor would be appointed Lord High Steward for the duration of the trial—the post of Lord High Steward ceased to be regularly filled in 1421, being revived only for trials of peers and for coronations. Whilst impeachments are still possible, no impeachment has occurred since 1806.

Finally, it was possible for Parliament to pass an act of attainder, which pronounces guilt without a trial. Historically, acts of attainder have been used against political opponents when speedy executions were desired. In 1661, Parliament passed acts posthumously attainting Oliver Cromwell, Henry Ireton and John Bradshaw—who were previously involved in Charles I's trial—of treason. These three individuals were posthumously executed, and are the only individuals to have suffered this fate posthumously under English treason laws. (In Scotland, an even more curious procedure was once employed in 1540, when a court summoned Robert Leslie, who was deceased, for a trial for treason. The Estates-General declared the summons lawful; Leslie's body was exhumed, and his bones were presented at the bar of the court. This procedure was never used in England.)

Procedures and evidence

Certain special rules procedures have historically applied to high treason cases. The Privilege of the Peerage and Parliamentary privilege preclude the arrest of certain individuals (including peers, wives and widows of peers and members of Parliament) in many cases, but treason was not included (nor were felony or breach of the peace). Similarly, an individual could not claim sanctuary when charged with high treason; this distinction between treasons and felonies was lost as sanctuary laws were repealed in the late seventeenth and early nineteenth century. The defendant, furthermore, could not claim the benefit of clergy in treason cases; but the benefit of the clergy, as well, was abolished during the nineteenth century.

Formerly, if an individual stood mute and refused to plead guilty or not guilty for a felony, he would be tortured until he enter a plea; if he died in the course of the torture, his lands would not be seized to the Crown, and his heirs would be allowed to succeed to them. In cases of high treason, however, an individual could not save his lands by refusing to enter a plea; instead, a refusal would be punished by immediate forfeiture of all estates. This distinction between treasons and felonies ended in 1772, when the court was permitted to enter a plea on a defendant's behalf.

Formerly, an individual was not entitled to assistance of counsel in any capital case, including treason; the rule, however, was abolished in treason cases by the Treason Act 1695. The same Act restored a rule from 1661 which had made it necessary to produce at least two witnesses to prove each alleged offence of high treason. Nearly one hundred years later a stricter version of this rule was incorporated into the US Constitution. The 1695 Act also provided for a three year time limit on bringing prosecutions for treason (except for assassinating the king) and misprision of treason, another rule which has been imitated in some common law countries.

These rules made it difficult to prosecute charges of treason, and the rule was relaxed in 1800 to make attempts on the life of the King subject to the same rules of procedure and evidence as existed in murder trials (which did not require two witnesses). This change was extended to all assaults on the Sovereign in 1842. Finally the special rules for treason were abolished in 1945 when the rules of evidence and procedure in all cases of treason were made the same as for murder. However the original three-year time limit stated above survived into the present day. This meant that when James Hewitt was accused of treason because of his affair with the Princess of Wales, he could not be prosecuted because it could not be proved that he had done it within the foregoing three year period.

In England and Wales a magistrates' court may not grant bail in a treason case.

Punishment

The form of execution once suffered by traitors was often (though not invariably) barbarous and torturous. The condemned could not walk or be carried to the place of execution; the law required that he was to be drawn. It was possible to drag the traitor along the ground, but, almost always, he was instead placed on a hurdle and drawn to the place of execution by a horse. The individual would then be hanged by the neck, but not allowed to die: a noose would be tied around his neck, but there would be no "drop" to ensure that the neck broke. Whilst still alive, the offender would be cut down and allowed to drop to the ground. He would be stripped of his clothes, and his genitals cut off. The offender's viscera would be pulled out and burnt before his own eyes, then his heart and other organs would be torn out of his body. By this time, the offender would probably have died from damage to his vital organs; nonetheless, the gruesome process continued. The traitor would be decapitated, and his body cut into four quarters. The body parts would be at the disposal of the Sovereign; normally, they were gibbeted or publicly displayed. This tortuous sentence was amended in 1814 so that the offender would hang to death; the disembowelling, beheading and quartering continued to be performed posthumously. Women were excluded from this type of punishment. Instead women were burned at the stake, until this was replaced with hanging in 1790 (1796 in Ireland).

Individuals of noble birth were not subjected to either form of torture; instead, they were merely beheaded. Sometimes, even the sentences of commoners were commuted to beheading — a sentence not formally removed from the English statute books until 1973 (1949 in Scotland). Men convicted of high treason for counterfeiting were subject to hanging, but not the subsequent torture; women convicted of high treason were in all cases burnt, until burning was abolished.

In addition to being tortured and executed, a traitor was also deemed "attainted". The first consequence of attainder was forfeiture; all lands and estates of a traitor were lost to the Crown. In cases of felony, the lands were confiscated only for one year and one day, but in cases of high treason the lands were forever lost to the Crown. A second consequence of attainder was corruption of blood; the attainted person could neither inherit property, nor transmit it to his or her descendants.

In 1870, both attainder and drawing and quartering were abolished; the sole punishment was hanging. (Drawing and quartering had however been carried out posthumously since 1814.) By 1965, capital punishment had been abolished for almost all crimes, but was still permitted for high treason until 1998, with the passing of section 36 of the Crime and Disorder Act 1998. By this Act the maximum punishment for high treason became life imprisonment. (See also Treason Act 1814.)

The last beheading of a peer for high treason was that of Simon Fraser, 11th Lord Lovat in 1747. The last execution by burning for high treason was that of Catherine Murphy in 1789. The last hanging, drawing and quarterings were those of the Cato Street Conspirators in 1820. (In this case, however, the drawing and quartering were omitted but the beheading was not, by Royal command.) One of the last executions for high treason was that of John Amery also believed to be the only person in the United Kingdom to plead guilty to high treason. The last execution of any kind for high treason was that of William Joyce by hanging in 1946.

No person has been prosecuted for treason since Joyce. There have, however, been a number of instances of technical breaches of the treason laws (especially during the Northern Ireland Troubles) which have been prosecuted as ordinary murder or other crimes.

The mandatory death penalty for treason was abolished by the Crime and Disorder Act 1998 and replaced with imprisonment up to a maximum of life. Treason also entails disqualification from public office and loss of suffrage (except in Scotland).

Treason today

Almost all treason-related offences introduced since the Treason Act 1351 was passed have been abolished or relegated to lesser offences. The Treason Act 1351, on the other hand, has not been significantly amended; the only changes involve the removal of counterfeiting, as explained above. For the state of the law today, see the Offences section above.

In Autumn 2001 following 9/11, the British government threatened British citizens who fought for the Taliban army in Afghanistan against Anglo-American troops with prosecution for treason, although no one was subsequently tried, at least not for treason.

On 8 August 2005, it was reported that the UK Government was considering bringing prosecutions for treason against a number of British Islamic clerics who have publicly spoken positively about acts of terrorism against civilians in Britain, or attacks on British soldiers abroad, including the 7 July London bombings and numerous attacks on troops serving in Iraq and Afghanistan. Following this threat one foreign cleric who the British government had failed to deport fled to Lebanon, only to request to be rescued by the British military during the 2006 Israeli-Lebanon War. However later that year prosecutors indicted Abu Hamza al-Masri for inciting murder (he was convicted in February 2006), and it now seems unlikely that anyone will be charged with treason in the foreseeable future.

In 2008 the former attorney-general, Lord Goldsmith QC, published a report on his review of British Citizenship. One of his recommendations was for a "thorough reform and rationalisation of the law" of treason.

Acts in force today

See also the Treason Act 1842 (assaulting the Queen), the Official Secrets Act (espionage) and the Terrorism Acts.

References

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