Boil the cook

According to​ the Great Statute of Treasons, 1352, which is still on the statute book, treason consists of ‘Compassing the Death of the King, Queen, or their eldest Son; violating the Queen, or the King’s eldest Daughter unmarried, or his eldest Son’s Wife; levying War; adhering to the King’s Enemies; killing the Chancellor, Treasurer, or Judges in Execution of their Duty’. Allen Boyer (an American attorney and historian) and Mark Nicholls (a Cambridge academic) have what at first appears a straightforward project: to trace the path followed by English law for more than a millennium in categorising, criminalising and penalising treasonable acts. They conclude that treason as a crime has had its day: ‘Today, dangers inherent in the prosecution of treason manifestly outweigh the advantages, and the absurdity of a 21st-century state deriving weighty and drastic legal conclusions from a 14th-century statute has become ever more obvious.’ They express surprise that treason ‘is still around’ and ask why the state ‘condones life support’ for it, especially when prosecution may generate the glamour of martyrdom. It’s true that there has for many years been a web of statutes prescribing sentences up to life imprisonment for disclosing official secrets and for unauthorised possession of firearms and explosives. There is legislation against terrorism. There is also a longstanding common law offence of conspiracy to commit crime. Not long before this book went to press, Parliament was invited to modernise and condense the entire antique law of treason but opted to leave it untouched.

The book tracks the English law of treason century by century and dynasty by dynasty, as rulers grapple with the perennial problem of subjects who made the fatal mistake of backing the losing side in a power struggle. Alfred the Great (who earns the mysterious plaudit that ‘there was something about him of T.E. Lawrence’) gets credit for proscribing as treason any plot against the life of a feudal superior, and Henry VII for backdating his reign to the day before the Battle of Bosworth, making a traitor of anyone who fought for Richard III. There followed, in 1495, his Treason Act, which recognised that it was ‘ayenst all lawes reason and gode conscience’ to penalise subjects for treason that consisted purely of loyalty to the eventual loser. It remains in force. In 1662 it was invoked by Sir Henry Vane, charged with treason by reason of having fought for Parliament in the Civil War. The Restoration judges held that the law applied only to those who had fought for a king, not to anti-monarchist rebels. Although he had played no part in the trial of Charles I, Vane was executed. The jurisprudential duplicity of Vane’s case, and the revanchist exercise of which it formed part, might be thought to cast some doubt on Boyer and Nicholls’s sanguine assertion that the 1495 Act’s general absolution ‘has ever since been seen as a principle worth preserving’.

Pepys witnessed what the supposed principle was worth in action. In January 1649 he had been in the crowd that watched the beheading of Charles I. In October 1660, he ‘went out to Charing Cross to see Major-General Harrison hanged, drawn and quartered; which was done there, he looking as cheerful as any man could do in that condition. He was presently cut down, and his head and heart shown to the people, at which there was great shouts of joy.’ Pepys had no hesitation in calling this revenge. No more had the 1495 Act afforded Charles I a defence at his trial. For leyving war on his own people he was indicted and convicted as a traitor. When he questioned the jurisdiction of the specially assembled high court, its president, John Bradshawe, replied: ‘There is a contract and bargain made between the king and his people … The one tie, the one bond, is the bond of protection that is due from the sovereign. The other is the bond of subjection that is due from the subject. Sir, if this bond be once broken, farewell sovereignty.’

The paradigm of a constitutional bargain – loyalty in return for protection – is all but incompatible with the feudal model of obligation owed to status, especially when the feudal model itself is held to be God’s universe in microcosm. It followed, as Boyer and Nicholls point out, that the union of the Scottish and English crowns had rendered the allegiance of Scottish-born subjects to the British monarchy indissoluble, making a traitor of every Scot who took up arms in 1715 and 1745 (though without any concomitant right to be tried in Scotland, where acquittal was likely).

Similar issues of divided allegiance arose during the American Revolutionary War. In mid-1776 the Continental Congress resolved that citizens’ allegiance was owed exclusively to the governments of the United Colonies. Adopting the antique definition in the English Act of 1352, it advised states to legislate individually to enforce it. This they did, reinforcing it with mandatory loyalty oaths. The British, for their part, were able to treat any act of rebellion as treason against the crown, and to behave with corresponding brutality. Boyer and Nicholls write unapologetically of the ‘spate of judicial murders’ that followed. One of the few bright spots was the pardoning of enslaved Blacks who, having no status as citizens, could not be held to have violated their allegiance by rebellion.

In 1781 Lord George Gordon stood trial in London for treason, having provoked anti-Catholic riots in the course of which the townhouse of the presiding judge, Lord Mansfield, had been burned down (a personal interest that appears not to have troubled him at all). Mansfield accepted the submission of Gordon’s lawyer, Thomas Erskine, that guilt demanded treasonous intent, but it’s doubtful whether a jury of London property-owners would have worried about such questions. They were not going to convict an Englishman who had set out to defend Protestantism.

A number of statutes were passed during the 18th and 19th centuries to meet a variety of idiosyncratic attempts on the life or safety of reigning monarchs by enlarging the meaning of treason. Hence the conviction of Jaswant Singh Chail, who was found on Christmas Day 2021 in the grounds of Windsor Castle with a crossbow and ammunition and was convicted of wilfully producing a loaded crossbow with intent to use it to injure the person of her majesty, contrary to the Treason Act of 1842. Perhaps more important, as the authors recount, the 1696 Treason Act, following hard on the heels of the Bill of Rights, set up a series of procedural hedges, not cut down until 1945, which made treason difficult to prosecute. One result was that for many years sedition became governments’ accusation of choice against political dissenters.

Treason was never used as a charge in prosecutions for crimes committed by or ascribed to the Provisional IRA. Asked in debate by Lord Denning why the Birmingham Six had not been charged with treason, the lord chancellor, Lord Hailsham, replied evasively that, while treason was not obsolete, the choice of charge was a matter for the prosecuting authorities. Not long afterwards the attorney general, Sir Michael Havers, told the Commons more candidly: ‘One must realise that the 600-year-old statute is couched in such archaic language that it would be difficult to prove all the necessary ingredients of the crime and for a modern jury to come to grips with the terminology.’ This was no doubt one reason Parliament rushed through a Treachery Act in 1940 which began:

If, with intent to help the enemy, any person does, or attempts or conspires with any other person to do, any act which is designed or likely to give assistance to the naval, military or air operations of the enemy, to impede such operations of His Majesty’s forces, or to endanger life, he shall be guilty of felony and shall on conviction suffer death.

Boyer and Nicholls doubt whether this, or any of the other treason statutes passed in the centuries since 1352, represented a lasting improvement on ‘adhering to the King’s Enemies’ as the core meaning of treason. What has changed is the political situation in which the perceived enemies of whoever happened to be in charge of the state were interrogated, tortured, charged, tried and – if it went badly for them – publicly hanged, disembowelled, decapitated or (if a woman) burned alive. Where shoehorning the evidence into an extant definition proved difficult, new definitions could be enacted, as was done in 1531 when Henry VIII had poisoning made treasonable by statute in order to have the bishop of Rochester’s cook boiled to death for poisoning the Lambeth Palace stew (a measure cited by Lord Hoffmann in the House of Lords’ debate on the Rwanda safety bill as an early example of unprincipled ad hoc legislation).

Treason’s​ path, so far as it has had one, reaches its greatest height in the show trials and spectacular executions of the 16th, 17th and 18th centuries, becomes murky and tangled in the 19th, and stutters to a halt with the hanging of two Second World War collaborators, William Joyce (the despised Lord Haw-Haw, who was born in the United States, was brought up in Ireland and on the basis of long residence had acquired a British passport) and John Amery (scion of a High Tory family, who had moved to Germany after the outbreak of hostilities and attempted to recruit troops for the Nazis). Amery pleaded guilty to adhering to the king’s enemies in breach of the 1352 Act. Albert Pierrepoint considered him the bravest man he had ever hanged.

But even the mandatory death penalty in the 1940 Treachery Act was not what it seemed. According to Boyer and Nicholls ‘it fell under the Judgment of Death Act 1823, which permitted commutation by the court.’ It is a pity that they offer no elucidation, because the 1823 Act is an under-explored cavity in the history of the criminal law. It provided that, save in cases of murder, if the judge considered the case a proper one for clemency, ‘the Court shall and may and is hereby authorised to abstain from pronouncing Judgment of Death upon such Offender; and instead of pronouncing such Judgment to order the same to be entered of Record … as if Judgment of Death had actually been pronounced in open Court.’

This remarkable law, authorising the falsification of court records, is not mentioned in the modern Oxford History of the Laws of England, but earlier historians such as James Fitzjames Stephen and Leon Radzinowicz describe its operation. Stephen attributes it to the need to regularise the practice that had developed during the 18th century of granting a de facto reprieve by ordering condemned prisoners to be transported. Radzinowicz sees it as a step on the road to the final reduction by 1861 of some two hundred capital offences to four: murder, treason, piracy and arson in dockyards or arsenals. Whatever its object, the 1823 Act must have resulted in an unknown number of accused persons who had been convicted of capital offences, treason among them, being discharged instead of hanged. Maurice Healy’s classic volume of gossip, The Old Munster Circuit, contains what may have been a residual misapplication of the 1823 Act that continued in Ireland into the later 19th century. A young woman was convicted, against the judge’s advice, of wilfully causing her child’s death by strangulation. Donning his black cap, the judge pronounced the full death sentence, then added: ‘Now it’s all the greatest nonsense. Nothing will happen to you.’ The terrified prisoner, Healy says, failed to appreciate this demonstration of the majestic clemency of the law because she had fainted.

In 1940, when the lean and efficient Treachery Act was passed, there was no need to spell out who the enemy was. But when in June 1941 Hitler reneged on his non-aggression pact with Stalin and invaded the USSR, difficult questions arose. The USSR might now be an ally, but a significant element of the British establishment hoped Germany would overrun and defeat it. What then of individuals who, like the publisher James MacGibbon, used their access to military intelligence to prevent this happening?*

Having signed up with the Royal Fusiliers on the outbreak of war, MacGibbon was seconded in 1940 to the War Office as an intelligence officer. It was known to MI5 that he had been a member of the Communist Party, leaving when Stalin made his pact with Hitler. He was interviewed by a Major Johnstone, who asked him about his CP membership and then inquired: ‘Are you for Stalin or for us?’ ‘For us, sir,’ MacGibbon said. ‘Shake on it, old man,’ the major replied. In the succeeding years, MacGibbon gave to a Soviet handler all the decrypts, coming from Bletchley Park, that passed across his desk and were being routinely redacted before being handed over at diplomatic level to the Russians. How much of this was a dry run for the Cold War and how much a military judgment intended to prevent the Germans from realising that the Enigma code had been broken may never be known. But if, as seems to have been the case, MacGibbon passed to the Russians the complete German order of battle before Kursk, the decisive tank battle that turned the tide of war against Germany, it is difficult to imagine a jury finding him guilty of treachery.

Boyer and Nicholls cite, as a substitute for the Plantagenet formula, a paper published in 2018 by the right-wing think tank Policy Exchange, arguing for a single broad crime of assisting ‘states and organisations that plan to attack the UK or against whom UK forces are engaged’. Later that year the Queen’s Speech promised a review of the law of treason, but the eventual National Security Act 2023 is a pragmatic piece of legislation that classifies as espionage three generic activities: obtaining or disclosing protected information (formerly known as official secrets), obtaining or disclosing UK trade secrets, and assisting a foreign intelligence service. It also contains wide powers to prevent and punish disruptive activity. An amendment redefining and criminalising treason in the form proposed by Policy Exchange was rejected by the government. Had this not occurred too late for mention in their book, Boyer and Nicholls could well have claimed it as evidence that the state itself now accepts that treason as a crime has had its day.

It’s worth returning for a moment from the lofty heights of treachery to the disturbed young man with the crossbow. An individual at large with a loaded crossbow, especially if he has a history of mental disturbance, is no joke, and Chail was sent to prison for a total of nine years with associated hospital orders. The principal charge to which he pleaded guilty was attempting to ‘injure or alarm the sovereign’, contrary to section 2 of the Treason Act 1842, for which the statutory maximum sentence is seven years imprisonment. It was only by aggregation of treason with the offences of having an offensive weapon (maximum four years) and making threats to kill (maximum ten years) that a condign sentence could be arrived at by the sentencing judge. It does lend some force to Boyer and Nicholls’s suggestion that the law of treason belongs in a different age.

The predicate of any modern treason law, even in a constitutional monarchy, has to be a mutual obligation of loyalty between citizen and state, not a fealty owed by the individual to the crown. How does that play out in a case such as that of Shamima Begum, briefly mentioned by Boyer and Nicholls, who at the age of fifteen left the UK to join Islamic State? Instead of depriving her of British nationality and refusing her readmission to the UK, might the home secretary have acknowledged a continuing duty to protect her? If so, might she have been readmitted to the UK, then arrested and charged with treason? The Court of Appeal’s recent decision that the home secretary had acted lawfully in having, in effect, made her a lifelong exile may be on its way to the Supreme Court.

Whatever the outcome, Boyer and Nicholls’s parting reflection merits attention: while high treason may no longer be a sensible juridical tool – they quote Alan Brien’s remark that it sounds ‘more like the kind of mystic, archaic, all-purpose crime that dictators invent to catch their opponents than any offence that ought to be invoked by democrats and liberators’ – the last thirty years have brought ‘a chill wind’. ‘Authoritarianism and intolerance,’ they suggest, ‘are on the rise, assuming many guises. Intolerance and fear breed societies in which paranoia flourishes, informers settle to their work, in which the need for an unchallenged authority seems compelling. Under these conditions the old pulse starts to beat again. Treason twitches and bestirs itself.’