Cross country

William Joyce, better remembered by the name Lord Haw Haw because of his nasal drawl, spent the duration of the Second Word War broadcasting Nazi propaganda to approximately one sixth of the listening public.

When Joyce was apprehended by the British Army in the last years of the war, the former factotum of the British fascist leader, Sir Oswald Mosley, argued he could not swing for treason as he was not a British subject.

Whether a person can be tried for treason is a precept underpinning British citizenship: subjects, by virtue of their nationality, owe allegiance to the Crown anywhere in the world and the offences of treason are committed when this allegiance is breached. Traditionally, foreign nationals could be charged with treason only when resident in the United Kingdom.

Joyce was born in the United States in 1906, the son of a naturalised American and thereby became a natural-born American citizen. He was brought to Ireland at the age of three and stayed there until 1921 when he came to England, where he resided until 1939. He then applied for a British passport by misrepresentation and left England for Germany at some date after 24 August 1939 where he transmitted the messages that eventually led to his charge under the Treason Act 1351.

So, for Joyce to be convicted of high treason and executed as a traitor, the House of Lords had to deliberate 'whether an alien who has been resident here, but leaves this country, can, while abroad, commit an act of treason' (Joyce v DPP [1946] HL).

Joyce had entered Germany with a falsely obtained British passport and the actual offence was carried out on foreign soil '“ surely he would walk free?

The law lords had to establish an extended basis for allegiance for Joyce to hang '“ they revisited an obscure judicial resolution laid down in 1707 which provided that when a foreign national left the realm and provided support to the king's enemy, while his family remained within the UK, then it could be said that his family left behind would still be protected by the Crown '“ therefore, he continued to owe fidelity. An interesting proposition, however, Joyce had no family remaining in the UK and the then lord chancellor expressed some concern about this weak ground for extended allegiance.

However, the law lords were of the view that in certain circumstances foreign nationals could owe allegiance outside the UK as it would be 'strangely inconsistent with robust and vigorous commonsense of the common law to suppose that an alien, quitting his residence in this country and temporarily on the high seas beyond territorial waters or at some even distant spot now brought within speedy reach and there adhering and giving aid to the king's enemies could do so with impunity'. By this conclusion, one of England's most infamous traitors went to the gallows.

The last hanging offences

The offence of treason still appears in all of the following extant statutes: Armed Forces Act 2006 and Treason Acts of 1702, 1814 and 1842. The Statute of Anne 1702c.21 is of particular constitutional interest.

The bloodless Glorious Revolution of 1688 simply replaced a Catholic James II with his Protestant nephew and daughter. But James had a Catholic son, the Old Pretender, who was the figurehead of the Jacobite uprisings of the early 1700s. The Bill of Rights 1688 sought to keep the throne Protestant and the Treason Act 1702 'extinguished the hopes of the Old Pretender and all other pretenders' and made any Catholic attempt to break the Protestant line high treason '“ such 'traytors shall suffer pains of death'.

Similarly, the Piracy Act 1837, also in force, calls for the death penalty for 'whosoever, with the intent to commit'¦ the crime of piracy in respect of any ship or vessel'¦ with intent to murder any person being on board'¦ or shall stab, cut, or wound any such person'¦ or endanger life'.

England's last working gallows is at Devonport Dockyard Plymouth but it will never be used again as section 36 of the Crime & Disorder Act 1998 abolished the death penalty for treason and piracy. If we were to try Lord Haw Haw today, or indeed any time after 1998, he would be imprisoned for life instead of facing the hangman.