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Tuesday, 23 November 2010

Abu Hamza's passport: be careful what you wish for

This article is to be published in Criminal Law & Justice Weekly (vol 174, 27 November 2010, p 249)

The radical Muslim cleric Abu Hamza has won his recent appeal against the attempt by British authorities to strip him of his passport. Having already lost his Egyptian nationality, he argued successfully that removing his British passport would render him stateless.

It seems rather incongruous that Hamza wanted a British passport at all, given his reported attitude towards the British state. He might remember the old adage about being careful what you wish for: the last person to engage in claiming a British passport then trying to bring about the downfall of the state was the rather colourful William Joyce, better known as the wartime traitor Lord Haw Haw.

Joyce was a member of several different British fascist political parties during the 1920s and 30s (they tended to splinter and reform in a manner similar to Monty Python’s Judean parties in Life of Brian). As war with Germany loomed, Joyce, fearing internment, applied successfully to renew his British passport in order to flee the country.

Upon arriving in Berlin he soon began broadcasting propaganda for Nazi radio. Throughout the war he taunted the British over the airways about the bombing of their cities and constantly urged them to surrender. In June 1945 he was captured and charged with three counts of High Treason.

There was one problem: Joyce was not actually British. He was born in America, of Irish descent. Two of the counts therefore fell away on the ground that as a foreign national he had not owed allegiance to the Crown.

Joyce was, however, convicted on the count relating to the period of his broadcasting in which he had held a valid British passport (which had lapsed in 1940). The courts reasoned that since he had enjoyed the protection that that document conferred, had used it to travel and could have used it in a neutral state, he owed reciprocal obligations to the Crown during the period of its validity, notwithstanding that he hadn’t strictly been entitled to it in the first place.

His conviction was not without controversy, but it is hard to see any moral objection. Joyce had deceived the British authorities into thinking he was a British citizen when it suited him. He should have realised that they might go along with that pretence when it suited them. He fully deserved to come unstuck on that one.

In the years since, Joyce’s apologists have suggested he was executed out of revenge, or prejudice against his Irish origins.

Revenge is a distasteful motive, although it is easy for those who did not live through the terror of the Blitz to say so. As to the second point, Joyce was an ardent unionist who claimed to have fled Ireland to escape assassination by the IRA, making him a curious candidate for martydom in the cause of Irish independence.

Once it had been established that Joyce owed allegiance to the Crown for a certain period, then it did not matter that his impugned acts had been committed outside the jurisdiction, in the light of a case from the previous war involving another famous traitor, Sir Roger Casement.

Casement’s history was if anything more colourful than Joyce’s. He had gained fame, and a knighthood, for exposing colonial depredations in Africa and South America. Upon returning to the UK, he aligned himself with the cause of Irish nationalism. During the Great War he attempted (without much success) to obtain material support from Germany for an Irish uprising. He was caught and charged with treason on his return to the UK.

Casement’s defence argued that all of his impugned acts had taken place on German soil. That was deemed irrelevant on the court’s interpretation of the Treason Act 1351, which defined treason as giving the King’s enemies “aid and comfort in the realm, or elsewhere”; “elsewhere” being defined as elsewhere than the jurisdiction.

That ruling was also not without controversy but, as with Joyce, the moral position seems clear, leaving aside the merits of Casement’s cause of Irish independence, the mitigation of his good work in Africa and the Americas, and the still unresolved “black diaries” controversy (wherein he was alleged to have been involved in what in modern terms would be called predatory sex tourism). Someone leaving the jurisdiction, plotting to overthrow the state and then returning should not expect the state to find itself powerless to respond.

Archbold 2010 notes that the law of treason seems to have fallen into disuse, with no prosecutions since Joyce’s time despite a number of apparently qualifying individuals. The authorities seem now to prefer other charges. The offence remains on the statute books, however, and if the likes of Hamza persist in their ways it might pay the CPS to reconsider its use. Nowadays inflammatory speech might find a defence based on Art 10 of the European Convention on Human Rights, but other treasonous activities such as raising funds to support Britain’s enemies would not.

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