TREASON BILL [Lords] (Hansard, 11 June 1945)

§ The Secretary of State for the Home Department (Sir Donald Somervell)
I beg to move, "That the Bill be now read a Second time."
This Bill deals with a very different topic from that which we have just passed, and although it deals with a great statutory jumble which will be found set out in the Schedule, it is a simple Measure. Its purpose, as its long Title accurately states, is to assimilate the procedure in all cases of treason and misprision of treason to the procedure in cases of murder. Misprision means, in case anybody does not know, concealment of treason, or being an accessory to treason. Otherwise the term has now gone out of use. I do not think we shall be guilty of complacency when I say that our general system of criminal procedure, on both sides of the Border, is the fairest in the world. Therefore, there seems no reason at all why those who are accused of treason should come under a 1394 different procedure from that which applies in normal cases of crime on indictment. But, in fact, at the moment there are on the Statute Book a number of archaic provisions—to be found set out in the Schedule—which apply to prosecutions for treason, though with two very important exceptions.
I should make it clear that nothing in this Bill affects the nature and character of the offence. It merely deals with procedure, up to and at the trial. Now for the two exceptions. In 1800, Parliament passed an Act saying that in the class of treason which consisted in assassinating or attempting the life of the King—one branch of the law of treason—the procedure was to be, not according to these somewhat complicated provisions to which I have referred, but in all respects as in trials for murder. That Act took one class of treason out of what is called the special treason procedure, and put it into the normal procedure. The House will be familiar with the Treachery Act, which we passed in 1940. That Act is not only applicable to spies, enemy spies dropped from the air for the purpose of sabotage, but also applies to acts of treason committed by British subjects, either in this country or abroad, if those acts take the form of assisting the military operations of the enemy. As the House will appreciate, that is probably the most serious form which treason can take. Toassist the military operations of the enemy in war-time is the gravest form of treason. Under the Treachery Act, that can be tried under the ordinary procedure applicable in cases of murder or other serious crimes.
All this Bill does is to apply to the remaining categories of treason, the principle which has already been recognised as proper in that case of treason which consists of assisting the military operations of the enemy, and treason which consists in assassinating or attempting the life of the Monarch. I do not think the House will want a detailed description from me of the procedure, but there are special provisions as to the service of a copy of the indictment, as to lists of witnesses, and as to no evidence being given of acts not laid in that indictment. All these are normally covered by our modern procedure of a preliminary hearing before the committing magistrates, and the rule that, once an indictment is 1395 laid, no new charge can be based on fresh evidence, even though you seek to give notice of it. There is a provision about lists of jurors which is obsolete under our modern system of selecting jurors, but apart from that there is the general right to get a list of the jurors at a cost of is., I think, seven days before the trial—

§ Mr. Silverman (Nelson and Colne)
And there is the right of challenge.

§ Sir D. Somervell
Yes. I should refer to the provision in the 1695 Act, which, makes the evidence of two witnesses necessary for the overt act which is relied upon as constituting treason. It is, presumably, based on the idea that one witness may be unreliable, whereas, on the other hand, if you allege two overt acts, and if you have one witness of each, then the two unreliabilities are taken as adding up to a sufficient certainty. It was very much criticised from the moment it was enacted. Indeed, a forcible criticism will be found in Lord Macaulay's "History of England." He points out that you may get one witness only to the overt act, but that he may be corroborated by a great deal of circumstantial evidence, whereas you may get two witnesses, uncorroborated by surrounding circumstances, who may yet be unreliable. There has been an argument in the past as to exactly what the construction of this provision would be, but I am quite satisfied that under the modern development of our criminal law, where the whole onus is on the prosecution, and the jury must be satisfied beyond all reasonable doubt, the danger against which this provision was directed no longer exists, whereas it is easy to imagine cases in which there may be overwhelming evidence, but where this provision might be a bar to the prosecution getting that evidence before the court and the jury.
There is only one other point I would like to make, and I do so because I have seen a reference to it in connection with this Bill. As the House will remember, when Casement was tried for treason towards the end of the last war, the trial was a trial at bar in the King's Bench Division, before three judges. Under the old law, in the case of treason committed abroad, and not in this country, there had to be a trial at bar. By this Bill 1396 we do away with the necessity for trial at bar, but I should like to make it clear that the power which resides in the Attorney-General to apply for trial at bar remains, and can be exercised in an appropriate case. There is also the right of the accused person to apply for trial at bar which means, in modern practice, three judges if he so desires, although he has no right.

§ Mr. Silverman
With a jury.

§ Sir D. Somervell
Yes, three judges with a jury. As a matter of fact, the institution of the Court of Criminal Appeal has largely done away with the ground on which in the old days trials at bar were asked for. In those days if you had a point of great difficulty to decide, or thought you had, it was said that you ought to have more than one judge to deal with it.

§ Lieut.-Colonel Marlowe (Brighton)
Could my right hon. and learned Friend say to which court applications for trial at bar would be made?

§ Sir D. Somervell
To the Divisional Court, I think. It is all laid down in the rules. I think it is right to mention that point, because I saw a reference somewhere to the question of whether this Bill affected the possibility of applying for trial at bar. As I have said, this is a simple Measure and is in accordance with what the House has already done, and I am sure that it is right that we should sweep away procedure which has been superseded by our modern criminal code.

§ Mr. Attlee (Limehouse)
We on this side support the Bill. We think it is a reasonable thing to sweep away archaisms where those archaisms have no basis of reason. I understand the original reason for making this procedure so difficult was to try to put a check on the habits of Government sat the end of the 17th century of trying to bump off the Opposition. We hope that is not going to happen again. With the development of science there has also grown up the possibility of committing treason in all kinds of new ways. I think the simplification provided by this Measure is necessary and desirable, and I hope the House will give the Bill a Second Reading.

§ Mr. Silverman (Nelson and Colne)
I think the case for this Bill is overwhelmingly strong and has been very clearly expressed by the Home Secretary. I understand that the privilege of Peers to be tried for other offences in another place is not affected by this Bill.

§ Sir D. Somervell
Nor is their right to be tried for this offence. This Bill assimilates treason to murder.

§ Mr. Silverman
I cannot help thinking that all the reasons so lucidly and powerfully advanced by the right hon. and learned Gentleman for sweeping away this archaic practice would be equally good reasons for removing the special rights and privileges of Members of another place who might be so unfortunate as to be charged with any kind of criminal offence. I do not know why this particular crime should have been selected for special treatment. I hope the time will come when the Government will see the weight and force of the arguments that have been advanced on this occasion and use them to remove the parallel and quite similar archaisms.

§ Lieut.-Colonel Marlowe (Brighton)
I wish to join in the general welcome to this Bill and to thank the Home Secretary for his lucid exposition. I agree with the right hon. Member for Limehouse (Mr. Attlec) that it is a good thing to sweep away archaisms, but as he rightly qualified his remark, only those archaisms which have no basis of reason. It is not always easy to determine whether or not they have a basis of reason. It very often happens that historical antiquities, although we cannot feel it so easily, have a very good foundation of reason behind them. I agree that this Bill is a step in the right direction. I take it tile primary object of the Bill is to deal with certain notorious British subjects against whom charges are likely to be laid, and I understand from the Home Secretary that it is applicable only to British subjects who commit treason here or overseas.

§ Sir D. Somervell
No. I used that expression in connection with the Treachery Act. It is possible for somebody who is not a British subject, if he is here, to commit high treason. This Bill applies to all cases in which an indictment for treason would lie in ordinary law.

§ Lieut.-Colonel Marlowe
Those of us who have had to consider this matter from time to time have found certain difficulties about it. The Treachery Act applies not only to British subjects.

§ Sir D. Somervell
No.

§ Lieut.-Colonel Marlowe
But to subjects who are not in this country.

§ Sir D. Somervell
No.

§ Lieut.-Colonel Marlowe
I do not want to enter into an argument at this stage. I am concerned with those persons who commit offences outside our jurisdiction. I understand this Bill has no effect on them, and, therefore, I take it this would not be an appropriate occasion to deal with that matter. I have always taken the view that the trial of notorious ex-enemies is a complete farce, and that they who are already condemned ought not to be put on trial but should be dealt with immediately. I should be glad if the Home Secretary would reassure me that the Bill does not deal with the point I am concerned about, that is, the trial of enemy subjects who have committed crimes outside our jurisdiction. They have to be dealt with in some way or another. I would like to see a Bill in which a method of dealing with them is clearly and explicitly provided, and I hope that at some time the Government will make clearer to us how they propose to deal with those people.