Treason and Treachery

This article explains the important difference between two pieces of legislation used to execute people for their activities during World War Two. These two acts of Parliament are the High Treason Act 1351 (Amended 1945) and the Treachery Act 1940.

High Treason Act 1351 (Amended 1945)
High Treason (the highest form of treason – against the King/Queen) is the act committed when an allegiance, which is owed by a citizen, is broken. A citizen of a country owes a duty of allegiance in return for receiving the protection of that country’s head of state. Consequently, treason is viewed as an extremely, if not the most, serious offence a citizen can commit.

The essential points which the prosecution needs to prove beyond reasonable doubt in a treason trial are

  • Did the person do the acts alleged in the charge (for example make radio broadcasts).
  • Does the person have a duty of allegiance to the head of state (for example the British King/Queen).

Only when both points are proved beyond reasonable doubt can the prisoner be found guilty of High Treason.

Treason trials often resolve around questions of establishing whether allegiance is owed. If it’s not owed, the person can’t commit High Treason. There are two types of allegiance: permanent and temporary.

An example of permanent allegiance is that derived through being a national of a country. For example, I’m a British Citizen, and will remain one until I renounce my citizenship (only possible for a British citizen after the Naturalisation Act 1870). Wherever I am in the world I am a British citizen, hence, the permanent nature. The actual and physical ability of a head of state to actually exercise their obligation of protection whilst their subject is abroad was judged as irrelevant.

Temporary allegiance can be gained in several ways (as William Joyce found out to his cost). For example, if you visit or live in another country outside your home country, you have a duty of allegiance to the head of state of that other country. So if I, a British citizen, visit France I have a temporary allegiance to the French state whilst I’m on French territory. For this temporary allegiance, the French state will protect me whilst I’m on their territory. Once I leave France, I lose their protection and they lose my allegiance. As I said before, I still owe allegiance to the British head of state as I’m a British citizen.

Temporary allegiance can also be gained through, in the William Joyce case, a British Passport.

William Joyce was born in New York, the son of an naturalised Irish American Father. In 1939 William Joyce left the U.K and travelled to Hitler’s Germany just before the U.K declared war on Germany. For his journey to Germany he used a British Passport. By having a British Passport, the holder is entitled to the protection of the British Head of State (King George VI at the time). The fact the King, through his Government, was in no position to offer protection, should Joyce need it, was judged as no defence. While in Germany, and after war had been declared but before his British Passport expired, Joyce made several Propaganda radio broadcasts. It was these broadcasts made before his British Passport expired that made William Joyce guilty of High Treason.

Treachery Act 1940
In the month that Parliament had passed the Treachery Act 1940, Hitler decided that he had not “…missed the bus…” and invaded France and the low countries, and Winston Churchill became Primer Minister.

The Treachery Act 1940 has no need to establish allegiance. To find someone guilty under the Treachery Act, all that is required is to show that the acts the accused committed, or intended to commit, would endanger the forces of the crown including personnel as well as physical objects. If found guilty of the appropriate section of the act, the mandatory sentence was death.

These requirements are expressed in Section 1 of the Treachery Act:

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, shall be guilty of felony and shall on conviction suffer death.

Appreciating this article is extremely important in the William Joyce case. It was this questions of establishing allegiance that took the Joyce case all the way to the House of Lords (the supreme British court).

Registering Deaths of Executed Spies
The British authorities had concerned about registering the deaths of people executed for treachery during World War Two. The War Office was concerned that the registering of the deaths would have involved national security issues. The General Register Office replied that various pieces of legislation, such as the Birth & Death Registration Act 1874, required the registration of deaths. The GRO suggested that a new piece of legislation would have to be passed by Parliament, if the authorities wished to withhold the registration of the deaths.

W.B. Purchase, who was the coroner for the Northern District of the County of London, had a meeting with Lieutenant-Colonel Hinchley Cooke (MI5) and Geoffrey Cox to arrive at an agreed solution. They met just after the execution of Josef Jakobs who was executed at the Tower of London in August 1941. They also examined the death certificates issued for the spies executed during World War One. They eventually reached the conclusion that the deaths would be registered in the normal fashion. The trials of the spies themselves were held in camera.