[1945] 2 All ER 673

The appellant was convicted on an indictment charging him with high treason by adhering to the King's enemies elsewhere than in the King's realm between 18 September 1939, and 20 July 1940, in that he did broadcast to the King's subjects propaganda on behalf of the said enemies, contrary to the Treason Act, 1351. He was born in the United States in 1906, the son of a naturalized American citizen and thereby became himself a natural-born American citizen. At the age of three he was brought to Ireland and stayed there until about 1921 when he came to England, where he resided until 1939. On 4 July 1933, he made application for a British passport, describing himself as a British subject by birth having been born in Galway, and was granted the passport as such British subject by birth, for a period of five years. On 24 September 1938, he applied for, and was granted, a renewal of that passport for a further period of one year. On 4 August 1939, he made a further application for the further renewal for one year of that passport, and the passport was again renewed to expire on 1 July 1940. On both occasions he described himself as a British subject who had not lost that national status. At some date after 24 August 1939, he left England and travelled to Germany where he remained throughout the war. On his arrest in Germany in 1945, a document was found in his possession showing that he had been engaged by the German Broadcasting Corporation as from 18 September 1939, as an editor, speaker and announcer of news in English. While it was admitted that the appellant, being an alien within the realm, was a person owing allegiance to the King on 24 August 1939, it was contended on his behalf that (i) allegiance due from an alien, being local in character, only continued so long as he resided within the King's dominoons; (ii) assuming that the appellant was proved to have been a person owing allegiance to the King at a time when he did adhere to the King's enemies elsewhere than in the King's realm, nevertheless he could not be tried for that offence by any court in England; (iii) the renewal of the appellant's passport did not afford him, nor was it capable of affording him, any protection, and the appellant had never availed himself, nor had he any intention of availing himself, of the protection to which a holder of a British passport was entitled:-

Held - (i) the application for, the granting of, and the renewals of, the passport, showed that the appellant, as the holder of such passport, had taken all steps to insure every assistance and protection of which he might have stood in need and to safeguard his rights of re-entry into England. Since a foreigner, although not being within the British realm, might owe allegiance to the Crown, the appellant was in all the circumstances of the case a person owing such allegiance at the time when he commenced to adhere to the King's enemies elsewhere than in the King's realm by broadcasting propaganda.
   (ii) under the statute of 35 Hen 8, c 2, the trial of the appellant was rightly held in the Central Criminal Court.
   R v Casement applied.
   (iii) the British passport held by the appellant entitled him to all the rights and protection afforded by such a passort, even if the appellant had obtained it by misrepresentation and had no intention of using it.

Notes
This decision is, by the express words of the judgment, confined to the circumstances under consideration, and no general principle should be drawn from it. Blackstone admittedly limits local allegiance to the period of residence673 within the realm, but residence is nowhere defined by him, and the resolution of the judges in 1707 clearly indicates that in certain circumstances protection may stil continue notwithstanding the physical absence of the alien. In this case the alien was under the protection of a passport which entitled him to return at any time, and this appears to have given rise to a species of constructive residence during which he still owed allegiance.
   As to allegiance, see Halsbury Hailsham Edn, Vols 6 and 9, pp 414-418, paras 460-466, and p 291, para 432; and for cases, see Digest Vol 11, p 498, Nos 8-18.

Appeal
Appeal by the accused, William Joyce, who was convicted at the Central Criminal Court before Tucker J on 19 September 1945, on the third count of an indictment for high treason and was sentenced to death. On the first two counts in the indictment it was alleged that the accused was a British subject. As the evidence showed that the accused had never been a British subject, he was acquitted upon those counts by the trial judge with the approval of the Attorney General, representing the Crown. The third count of the indictment upon which the conviction took place, was treated as a count charging that the accused, not being a British subject but being a person owing allegiance to the Crown, was guilty of high treason by adhering to the King's enemies elsewhere than in the King's realm, to wit in the realm of Germany, between 18 September 1939, and 2 July 1940, by broadcasting to the King's subjects propaganda on behalf of the said enemies, contrary to the Treason Act, 1351. The jury found that the accused did adhere to the King's enemies elsewhere than in the King's realm, to wit, in the realm of Germany as alleged, and the trial judge held as a matter of law that at that time the accused was a person owing allegiance to His Majesty. The accused appealed against that decision in law.

1 November 1945. The following judgment was delivered.

VISCOUNT CALDECOTE LC J [delivering the judgment of the court]: The material facts appear to be as follows. The appellant was born in the United States of America, in 1906, the son of a naturalised American citizen, and thereby became himself a natural-born American citizen. When about three years of age the appellant was brought to Ireland where he stayed until about 1921 when he came to England. He stayed in England until 1939, being then thirty-three years of age. He was, therefore, brought up, educated and settled within the King's dominions. On 4 July 1933, he made application for a British passport describing himself as a British subject by birth, having been born in Galway, the passport being asked for for the purpose of holiday touring in Belgium, France, Germany, Switzerland, Italy and Austria. He was granted the passport, as such British subject by birth, for a period of five years. On 24 September 1938, the appellant applied for a renewal of that passport for a further period of one year, again describing himself as a British subject by birth who had not lost that national status. That application was granted. On 24 August 1939, he made a further application for the further renewal for one year of that passport, again describing himself as a British subject by birth who had not lost that national status, and the passport was again renewed to expire on 1 July 1940. Upon his arrest there was found in the possession of the appellant a document showing that he had been engaged by the German Radio Company of Berlin-Charlottenburg as from 18 September 1939, as an announcer of news in English. On those facts it is clear beyond dispute that the appellant, at least up to 24 August 1939, owed allegiance to the Crown as an alien "resident," whatever that word may mean, in this country and under the protection of the Crown. The grounds upon which that duty is based have not always been stated by judges in the same terms, but it cannot be doubted that any court674 which is called upon to decide the question whether a person, not being a British subject, is guilty of treason committed beyond the realm, is bound to have regard to the evidence as to his being resident in the King's dominions, and to the evidence as to his being at the material time under the protection of the Crown. We do not doubt that such a person may, by his acts, be shown to have withdrawn himself from that protection and to have ceased to be resident in England, with the result that the duty of allegiance is no longer owed by him. Each case must be decided upon its own facts. We are not called upon to lay down, and have no intention of laying down, the law applicable to every case of treason beyond the realm charged to have been committed by an alien. We have to look at the evidence in this case and upon that evidence to decide whether the trial judge was right or wrong in holding as a matter of law that on 18 September 1939, and between that date and 2 July 1940, this appellant did owe allegiance to the King. We agree with Tucker J that the proper way of approaching that question is to see whether anything had happened between 24 August and 18 September to divest the appellant of that duty of allegiance which he unquestionably owed at the earlier of those dates. The one and only fact relied upon by counsel for the appellant is that the appellant left England at some date after 24 August and travelled to Germany. The argument was that the act of leaving England, whatever may have been the circumstances, rendered the appellant incapable of committing the offence charged since the physical presence in the King's dominions of the appellant is and was essential to the commission by him, being an alien, of the crime of high treason. If that argument is sound no alien can ever be guilty of that form of high treason which consists of adhering to the King's enemies without the realm. It is a startling proposition and one which after mature consideration this court is quite unable to accept. It appears to be based to a great extent upon the language of Blackstone's Commentaries, 8th Edn, Book 1, ch 10, p 370:

   That statement of the law may be accepted as perfectly correct so far as it goes and it is in accord with the writings of all the great masters of the common law, but it is not exhaustive, for it omits something which must, we think, have been known to Blackstone, lecturing and writing in the middle of the 18th century. His Commentaries were first published in 1765. We find nothing in that passage to indicate that in the opinion of the writer the residence so much insisted upon by him would be broken by a mere temporary absence on business or pleasure. The writer makes no attempt to define the word "residence" or explain what he means, leaving the word to be construed in its ordinary meaning. The reason for the omission may be that Blackstone's Commentaries form, to use the language of the Earl Of Birkenhead in his short life of Blackstone in Fourteen English Judges (p 203), "an elementary text book for students and must be judged as such." However that may be, Foster in his Crown Law, published in 1762, in the Introduction To The Discourse On High Treason, observed in sect 4, at p 185:

   In East's Pleas Of The Crown, published in 1803, there is a reference in similar terms to that resolution of the judges, and the author after discussing the circumstances in which the resolution came to be passed, appeared to treat it as settled law.

675

   Hawkins' Pleas Of The Crown, first published in 1716, makes no reference to this resolution of the judges, but in later editions of the work that resolution is set out in the same terms as the other text-book writers, and we have not been referred to any work of authority or to the judgment of any court disapproving of the law as there stated. Criticisms have been made by counsel for the appellant upon the practice of the judges in holding such meetings and those criticisms may be well-founded, but the law as stated and accepted by Foster and others has stood unchallenged, as counsel for the appellant admits, for nearly two hundred and fifty years, and we cannot now hold that we are not bound by it.
   The importance of the matter in the decision of the present case is two-fold. If the law as stated by Foster is correct, it is clear that counsel for the appellant has put his case much too high in claiming, as he does, that the appellant could not in law be guilty of high treason committed abroad because he was not a British subject, and, secondly, it seems to negative a further proposition based on want of jurisdiction to be referred to later. It does not purport to show that the present appellant was guilty of the crime charged since the case put does not apply here, there being no evidence that the appellant on going abroad left his wife or effects behind him. It still remains for the Crown to show that upon the proved facts of this case he did owe the duty of allegiance to His Majesty. If there was no other evidence upon the subject than the proved fact of his departure from England after 24 August the Crown might be in a great difficulty, and we express no opinion as to what would have been the proper course to adopt, beyond observing that it might have been necessary to leave further matters to the jury since the jury alone can draw inferences of fact from such evidence as they accept. But in our judgment the facts relating to the application for, the granting of, and the renewals of, the passport in this case make it clear that as a matter of law the appellant was still owing allegiance to the Crown when he commenced to adhere to the King's enemies by broadcasting as alleged in the indictment and found by the jury. We cannot agree with counsel for the appellant that the case of the appellant is to be treated as precisely the same as that of a foreigner who had once in his life paid a visit to this country of a few hours' duration. Blackstone seems to require "residence," Foster speaks of a person "settled" here. We were much pressed by counsel for the appellant with a number of cases in which there are dicta appearing to be in favour of the appellant's contention. The high water mark of these cases is perhaps to be found in Johnstone v Pedlar, where Lord Sumner said ([1921] 2 AC 262, at p 292):

That passage does not touch the question which we have to consider. It certainly does not define the offence of treason. The only point argued there was whether the defendant could rely on a plea that the plaintiff was an alien, and that his money had been detained by direction of the Crown as an act of state. It was held that the plea was bad.
   On his arrest the appellant made a statement put in evidence at the trial which contained these passages:

   It was further proved that in 1922 the appellant wrote a letter asking to be admitted as a member of the Officers' Training Corps attached to the University of London, stating that he had been born in America but of British parents, that he left America when two years of age, that he had not returned since to America and did not propose to return there, that he had been informed at the Brigade headquarters in Ireland that he possessed the same rights and privileges as he would if he had been of natural British birth, and added that he could obtain testimonials as to his loyalty to the Crown. Following upon that came the application for the passport and the two renewals of the passport, the last being as stated on 24 August 1939, so that on the very eve of war the appellant had taken every step in his power to safeguard his right of re-entry into England, 676and meanwhile to insure his treatment in any foreign country as a British citizen. A British passport is something more than a means of identification. It is a document of high public importance, as was stated in the Brailsford case, where Lord Alverstone CJ observed ([1905] 2 KB 730, at p 745):

   The form of passport issued in this case requests the foreign Government, and requires the diplomatic and consular representatives of His Majesty in foreign countries in the name of His Majesty, to allow the bearer to pass freely without let or hindrance and to afford him every assistance and protection of which he may stand in need, and the possession of such a document clearly entitles the holder to return to the country which has issued the passport. It is, therefore, plainly a protection in every sense of that word to the holder while he is absent from the King's realm. We entertain no doubt that if it is possible for a foreigner to owe the duty of allegiance to the British Crown although not at the moment within the British realm, as we think it is, the appellant at the time when he adhered to the King's enemies did owe that allegiance.
   The next point made by counsel for the appellant was one which he expressed as being a point raising the question of jurisdiction. The point as stated by the counsel was this. Assuming that the appellant was proved to have been a person owing allegiance to the King at the time when he did adhere to the King's enemies in the realm of Germany, nevertheless he cannot be tried for that offence by any court in England. We experience some difficulty in understanding precisely the grounds upon which this submission was made. It is said to be complementary to the other submission that because the appellant was an alien he could not commit the offence charged against him in the indictment, and, therefore, could not be tried for it, but upon the footing that an alien may commit, and that this appellant did commit, the crime charged in the indictment, we find it difficult to understand why he cannot be tried for that crime. It is quite true to say that the 1351 Act creating the offence does not refer in terms to the trial anywhere of a person offending against the statute and the point was one which troubled, as the books show, the minds of lawyers in many cases and for many years. Indeed, it was for the reason that there was no clear pronouncement by Parliament as to where and by whom a person ought to be tried who offended abroad against the 1351 Act that Parliament in 1548 passed the Act of 35 Hen 8, c 2:

The shire referred to in the section has been generally understood as Middlesex.
   It appears to us that the only point of jurisdiction which can possibly arise upon the terms of this Act depends upon the assumption that the words "any677 person or persons out of this realm of England" does not include an alien owing allegiance to His Majesty the King.
   In R v Casement the Court of Criminal Appeal dealt with the appeal of a person who had been convicted of high treason by adhering to the King's enemies without the realm, and no question was raised upon the appeal other than the question whether the matter described in the indictment was any offence against the Treason Act, 1351, and in giving the judgment of the court of five judges dismissing the appeal, Darling J observed as follows ([1917] 1 KB 98, at p 138):

We say the same thing in this case. We can find no justification for holding that because the appellant in this case is not a British subject, therefore, although he can commit the crime alleged in the indictment of being a person who has adhered to the King's enemies while owing allegiance to the King, yet no court has power to try him because he is an alien. It is right to add that counsel for the appellant agreed that if the appellant was triable in this country as the result of the statute of Hen 8 he was properly so tried at the Central Criminal Court.
   A further point taken by counsel for the appellant was that assuming the court was against him on his first two points there was no evidence that the renewal of the appellant's passport afforded him or was capable of affording him any protection, or that the appellant ever availed himself or had any intention of availing himself of any such protection and if there was any such evidence the issue was one for the jury and the judge failed to direct them thereon. It is true that no direct evidence was called in respect of the effect of the passport but the document speaks for itself, and we have already dealt with its effect earlier. In our view the passport was capable of affording him protection none the less because it was obtained by a misrepresentation and it is quite immaterial whether the appellant availed himself of that protection or not, as he had sought such protection and it was available for his use.
   For these reasons we find ourselves in complete agreement with the decision of the trial judge and substantially for the same reasons. The appeal is dismissed.

Solicitors: Ludlow & Co (for the appellant); Director of Public Prosecutions (for the Crown).