Joyce v Director of Public Prosecutions

 

Joyce v Director of Public Prosecutions

CRIMINAL; Criminal Law: ADMINISTRATION OF JUSTICE; Courts

HOUSE OF LORDS

LORD JOWITT LC, LORD MACMILLAN, LORD WRIGHT, LORD PORTER, LORD SIMONDS

10, 11, 12, 13 DECEMBER 1945, 1 FEBRUARY 1946

Criminal Law – Treason – Allegiance – Alien – Holder of British passport – Passport issued on alien’s declaration of being British subject by birth – Alien

broadcasting propaganda for the King’s enemies – Adhering to the King’s enemies without the realm – Whether alien owing allegiance to the Crown – Rights

and obligations of the holder of a British passport – Jurisdiction of English court to try alien for treason committed abroad – Treason Act 1351.

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 broadcast on behalf of the said enemies propaganda destined to be heard by the King’s subjects, contrary to

the Treason Act 1351. He was born in the United States in 1906, the son of a naturalised 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. The purpose of the last

renewal was stated to be for “holiday purposes.” 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) since allegiance due from an alien,

being local in character, only continued so long as he resided within the King’s dominions, the trial judge was wrong in law in directing the jury that the

appellant owed allegiance to the King during the period from 18 September 1939 to 2 July 1940; (ii) that an English court had no jurisdiction to try an alien for

treason against the King committed in a foreign country; (iii) the renewal of the appellant’s passport did not afford him, nor was it capable of affording him,

any protection, at least after the declaration of war between Germany and England, nor had he ever availed himself or had any intention of availing himself of

any such protection; (iv) if there were any evidence of such facts, the issue was one for the jury and the trial judge had failed to direct them thereon:—

Held – (i) By obtaining a British passport the appellant, as a person already owing allegiance to the King here, extended his duty of allegiance beyond the

moment when he left England. It was immaterial that he had obtained the passport by misrepresentation and that he was not in law a British subject. In all the

circumstances of the case the appellant had, at the material times, adhered to the King’s enemies beyond the realm and was, therefore, guilty of treason within

the meaning of the Treason Act 1351.

(ii) the court had jurisdiction to try the appellant.

R v Casement applied.

(iii) [Lord Porter dissenting]: the British passport held by the appellant entitled him to all the rights and protection afforded by such a passport, even if he

had no intention of using it. There was no ground for holding that the trial judge had misdirected the jury on the issue as to whether the passport had remained

at all material times in the possession of the appellant.

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Decision of the Court of Criminal Appeal ([1945] 2 All ER 673) affirmed.

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Notes

The House of Lords affirm the Court of Criminal Appeal on a question of far-reaching importance. It is held that on the issue of a passport the Crown assumes

the burden of protection and the holder the duty of fidelity, so that as long as the passport is held the holder may be liable for treason, even though he is an

alien and the acts in question are committed outside the realm. This would appear to be a considerable extension of the rule regarding local allegiance laid

down in the Resolution of the Judges in 1707, but Lord Jowitt LC, describes it as being merely the application of an existing principle to circumstances

unforeseen at the time of the enactment of the Treason Act.

It is always possible for an alien, holding a British passport to withdraw from his allegiance on leaving the realm, either by surrendering his passport or

otherwise, but whether he has done so or not is a question of fact in each case to be determined by a jury. It is on this point that Lord Porter founds his

dissenting judgment, as he holds that the jury, properly directed, might have found that the allegiance had terminated.

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.

Cases referred to in opinions

Calvin’s Case (1608), 7 Co Rep 1a, 11 Digest 496, 2.

Johnstone v Pedlar [1921] 2 AC 262, Digest Supp, 90 LJPC 181, 125 LT 809.

R v Brailsford [1905] 2 KB 730, 14 Digest 117, 861, 75 LJKB 64, 93 LT 401.

R v Casement [1917] 1 KB 98, 14 Digest 128, 1002, 86 LJKB 467, 115 LT 267, 277.

R v Turner (1816), 5 M & S 206, 14 Digest 430, 4552.

R v Burdett (1820), 4 B & Ald 95, 22 Digest 160, 1366.

Appeal

Appeal by the accused from a decision of the Court of Criminal Appeal (Viscount Caldecote LCJ, Humphreys and Lynskey JJ), dated 1 November 1945, and

reported ([1945] 2 All ER 675). The facts are fully set out in the opinion of Lord Jowitt LC.

G O Slade KC, Derek Curtis-Bennett KC and James Burge for the appellant.

The Attorney General (Sir Hartley Shawcross KC), and Gerald Howard for the Crown.

Their Lordships took time for consideration

1 February 1946. The following opinions were delivered.

LORD JOWITT LC. My Lords, on 7 November 1945, the Court of Criminal Appeal dismissed the appeal of the appellant, William Joyce, who had, on 19

September 1945, been convicted of high treason at the Central Criminal Court and duly sentenced to death. The Attorney General certified under the Criminal

Appeal Act 1907, s 1(6), that the decision of the Court of Criminal Appeal involved a point of law of exceptional public importance and that in his opinion it

was desirable in the public interest that a further appeal should be brought. Hence this appeal is brought to your Lordships’ House. And, though in

accordance with the usual practice the certificate of the Attorney General does not specify the point of law raised in the appeal, it is clear that the question for

your Lordships’ determination is whether an alien who has been resident within the realm can be held guilty and convicted in this country for high treason in

respect of acts committed by him outside the realm. This is in truth a question of law of far-reaching importance.

The appellant was charged at the Central Criminal Court on three counts, upon the third of which only he was convicted. That count was as follows:

Statement of offence.

High treason by adhering to the King’s enemies elsewhere than in the King’s realm, to wit, in the German realm, contrary to the Treason Act 1351.

Particulars of offence.

William Joyce, on 18 September 1939, and on divers other days thereafter and between that day and 2 July 1940, being then—to wit on the several

days—a person owing allegiance to our Lord the King, and whilst on the said several days an open and public war was being prosecuted and carried on by the

German realm and its subjects against our Lord the King and his subjects, then and on the said several days traitorously contriving and intending to aid and

assist the said enemies of our Lord the King against our Lord the King and his subjects did traitorously adhere to and aid and comfort the said enemies in parts

beyond the seas without the realm of England, to wit, in the realm of Germany, by 􀂭 187􀀉 broadcasting to the subjects of our Lord the King propaganda on

behalf of the said enemies of our Lord the King.

The first and second counts, upon which the appellant was found not guilty, were based upon the assumption that he was at all material times a British

subject. This assumption was proved to be incorrect; therefore upon these counts the appellant was rightly acquitted.

The material facts are few. The appellant was born in the USA, in 1906, the son of a naturalised American citizen who had previously been a British

subject by birth. He thereby became himself a natural-born American citizen. At about three years of age he was brought to Ireland, where he stayed until

about 1921, when he came to England. He stayed in England until 1939. He was then 33 years of age. He was brought up and educated within the King’s

Dominions, and he settled there.

On 4 July 1933, he applied for a British passport, describing himself as a British subject by birth, born in Galway. He asked for the passport for the

purpose of holiday touring in Belgium, France, Germany, Switzerland, Italy and Austria. He was granted the passport for a period of 5 years. The document

was not produced, but its contents were duly proved. In it he was described as a British subject. On 26 September 1938, he applied for a renewal of the

passport for a period of one year. He again declared that he was a British subject and had not lost that national status. His application was granted. On 24

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August 1939, he again applied for a renewal of his passport for a further period of one year, repeating the same declaration. His application was granted, the

passport, as appears from the endorsement on the declaration, being extended by 1 July 1940.

On some day after 24 August 1939, the appellant left the realm. The exact date of his departure was not proved. Upon his arrest in 1945 there was found

upon his person a “work book” issued by the German State on 4 October 1939, from which it appeared that he had been employed by the German Radio

Company of Berlin, as an announcer of English news from 18 September 1939. In this document his nationality was stated to be “Great Britain” and his

special qualification “English.” It was proved to the satisfaction of the jury that he had at the dates alleged in the indictment broadcast propaganda on behalf

of the enemy. He was found guilty accordingly.

From this verdict an appeal was brought to the Court of Criminal Appeal, and I think it right to set out the grounds of that appeal. They were as follows:

1. The court wrongly assumed jurisdiction to try an alien for an offence against British law committed in a foreign country.

2. The judge was wrong in law and misdirected the jury in directing them that the appellant owed allegiance to His Majesty the King during the period

from 18 September 1939, to 2 July 1940.

3. That 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.

4. If (contrary to the appellant’s contention) there were any such evidence, the issue was one for the jury and the judge failed to direct them thereon.

The Court of Criminal Appeal, as I have already said, dismissed the appeal, and it will be convenient if I deal with the grounds of appeal in the same

order as did that court, first considering the important question of law raised in the second ground. The House is called upon in 1945 to consider the scope and

effect of a Statute of 1351, the 25th year of the reign of Edward III. That Statute, as has been commonly said and as appears from its terms, was itself

declaratory of the common law: its language differs little from the statement in Bracton: see 2 Bracton 258, Stephen’s History of the Criminal Law of

England, Vol II, 243. It is proper to set out the material parts. Thus it runs:

‘Whereas divers opinions have been before this time [in what case treason shall be said and in what not;] the King, at the request of the lords and

commons, hath made a declaration in the manner as hereafter followeth, that is to say; if a man do levy war against our lord the King in his realm, or be

adherent to the King’s enemies in his realm, giving them aid and comfort in the realm or elsewhere … ’

then (I depart from the text and use modern terms) he shall be guilty of treason.

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It is not denied that the appellant has adhered to the King’s enemies giving them aid and comfort elsewhere than in the realm. Upon this part of the case

the single question is whether, having done so, he can be and in the circumstances of the case is guilty of treason.

Your Lordships will observe that the statute is wide enough in its terms to cover any man anywhere, “if a man do levy war … ” Yet it is clear that some

limitation must be placed upon the generality of the language, for the context in the preamble poses the question “in what case treason shall be said and in

what not.” It is necessary then to prove not only that an act was done but that, being done, it was a treasonable act. This must depend upon one thing only,

namely the relation in which the actor stands to the King to whose enemies he adheres. An act that is in one man treasonable, may not be so in another.

In the long discussion which your Lordships have heard upon this part of the case attention has necessarily been concentrated on the question of

allegiance. The question whether a man can be guilty of treason to the King has been treated as identical with the question whether he owes allegiance to the

King. An act, it is said, which is treasonable if the actor owes allegiance, is not treasonable if he does not. As a generalisation, this is undoubtedly true and is

supported by the language of the indictment, but it leaves undecided the question by whom allegiance is owed and I shall ask your Lordships to look

somewhat more deeply into the principle upon which this statement is founded, for it is by the application of principle to changing circumstances that our law

has developed. It is not for His Majesty’s judges to create new offences or to extend any penal law and particularly the law of high treason, but new

conditions may demand a reconsideration of the scope of the principle. It is not an extension of a penal law to apply its principle to circumstances unforeseen

at the time of its enactment, so long as the case is fairly brought within its language.

I have said, my Lords, that the question for consideration is bound up with the question of allegiance. Allegiance is owed to their Sovereign Lord the

King by his natural-born subjects; so it is by those who, being aliens, become his subjects by denisation or naturalisation (I will call them all “naturalised

subjects”); so it is by those who, being aliens, reside within the King’s realm. Whether you look to the feudal law for the origin of this conception or find it in

the elementary necessities of any political society, it is clear that fundamentally it recognises the need of the man for protection and of the Sovereign Lord for

service. Protectio trahit subjectionem et subjectio protectionem. All who were brought within the King’s protection were ad fidem regis: all owed him

allegiance. The topic is discussed with much learning in Calvin’s Case.

The natural-born subject owes allegiance from his birth, the naturalised subject from his naturalisation, the alien from the day when he comes within the

realm. By what means and when can they cast off allegiance? The natural born subject cannot at common law at any time cast it off. Nemo potest exuere

patriam is a fundamental maxim of the law from which relief was given only by recent statutes. Nor can the naturalised subjects at common law. It is in

regard to the alien resident within the realm that the controversy in this case arises. Admittedly he owes allegiance while he is so resident, but it is argued that

his allegiance extends no further. Numerous authorities were cited by counsel for the appellant in which it is stated without any qualification or extension that

an alien owes allegiance so long as he is within the realm, and it has been argued with great force that the physical presence of the alien actor within the realm

is necessary to make his act treasonable. It is implicit in this argument that during absence from the realm, however brief, an alien ordinarily resident within

the realm cannot commit treason; he cannot under any circumstances by giving aid and comfort to the King’s enemies outside the realm be guilty of a

treasonable act.

My Lords, in my opinion this, which is the necessary and logical statement of the appellant’s case, is not only at variance with the principle of the law,

but is inconsistent with authority which your Lordships cannot disregard. I refer first to authority. It is said in Foster’s Crown Cases (3rd Edn, p 183):

‘Local allegiance is founded in the protection a foreigner enjoyeth for his person, his family or effects, during his residence here; and it ceaseth

whenever he withdraweth with his family and effects.’

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And then (ibid, at p 185) comes the statement of law upon which the passage I have cited is clearly founded:

‘Sect. 4. And if such alien, seeking the protection of the Crown, and having a family and effects here, should, during a war with his native country,

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go thither, and there adhere to the King’s enemies for purposes of hostility, he might he dealt with as a traitor. For he came and settled here under the

protection of the Crown; and, though his person was removed for a time, his effects and family continued still under the same protection. This rule was

laid down by all the judges assembled at the Queen’s Command Jan. 12, 1707.’

The author has a side note against the last line of this passage “Mss Tracy, Price, Dod and Denton.” These manuscripts have not been traced but their

authenticity is not questioned. It is indeed impossible to suppose that Sir Michael Foster could have incorporated such a statement except upon the surest

grounds and it is to be noted that he accepts equally the fact of the judges’ resolution and the validity of its content. This statement has been repeated without

challenge by numerous authors of the highest authority—e.g., Hawkins’ Pleas Of The Crown, 1795 Edn, East’s Pleas Of The Crown, 1803 Edn, Vol I, p 52,

Chitty On Prerogatives Of The Crown, 1820 Edn, pp 12, 13. It may be said that the language of some of these writers is not that of enthusiastic support, but

neither in the text books written by the great masters of this branch of the law nor in any judicial utterence has the statement been challenged. Moreover it has

been repeated without any criticism in our own times by Sir William Holdsworth whose authority on such a matter is unequalled: see his article in Halsbury’s

Laws of England, Hailsham Edn, Vol 6, p 416, note (t).

Your Lordships can give no weight to the fact that in such cases as Johnstone v Pedlar the local allegiance of an alien is stated without qualification to be

coterminous with his residence within the realm. The qualification that we are now discussing was not relevant to the issue nor brought to the mind of the

court. Nor was the judges’ resolution referred to nor the meaning of “residence” discussed. In my view, therefore, it is the law that in the case supposed in the

resolution of 1707 an alien may be guilty of treason for an act committed outside the realm. The reason which appears in the resolution is illuminating. The

principle governing the rule is established by the exception: “though his person was removed for a time his family and effects continued under the same

protection,” that is, the protection of the Crown. The vicarious protection still afforded to the family, which he had left behind in this country, required of him

a continuance of his fidelity. It is thus not true to say that an alien can never in law be guilty of treason to the sovereign of this realm in respect of an act

committed outside the realm.

My Lords, here no question arises of a vicarious protection. There is no evidence that the appellant left a family or effects behind him when he left this

realm. I do not for this purpose regard parents or brothers or sisters as a family. But though there was no continuing protection for his family or effects, of

him too it must be asked, whether there was not such protection still afforded by the sovereign as to require of him the continuance of his allegiance. The

principle which runs through feudal law and what I may perhaps call constitutional law requires on the one hand protection, on the other fidelity: a duty of the

sovereign lord to protect, a duty of the liege or subject to be faithful. Treason, “trahison” is the betrayal of a trust: to be faithful to the trust is the counterpart

of the duty to protect.

It serves to illustrate the principle which I have stated that an open enemy who is an alien, notwithstanding his presence in the realm, is not within the

protection nor, therefore, within the allegiance of the Crown. He does not owe allegiance because although he is within the realm he is not under the

sovereign’s protection.

The question then is how is this principle to be applied to the circumstances of the present case. My Lords, I have already stated the material facts in

regard to the appellant’s residence in this country, his applications for a passport and the grant of such passport to him and I need not restate them. I do not

think it necessary in this case to determine what for the purpose of the doctrine whether stated with or without qualification, constitutes for an alien

“residence” within the realm. It would, I think, be strangely inconsistent with the robust 􀂭 190􀀉 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. In the present case the appellant had long resided here and

appears to have had many ties with this country, but I make no assumption one way or another about his intention to return and I do not attach any importance

to the fact that the original passport application and, therefore, presumably the renewals also, were for “holiday touring.”

The material facts are these, that being for long resident here and owing allegiance he applied for and obtained a passport and leaving the realm adhered

to the King’s enemies. It does not matter that he made false representations as to his status, asserting that he was a British subject by birth, a statement that he

was afterwards at pains to disprove. It may be that when he first made the statement, he thought it was true. Of this there is no evidence. The essential fact is

that he got the passport and I now examine its effect. The actual passport issued to the appellant has not been produced, but its contents have been duly

proved. The terms of a passport are familiar. It is thus described by Lord Alverstone LCJ, in Brailsford’s case ([1905] 2 KB 730, at p 745:)

‘It is a document issued in the name of the Sovereign on the responsibility of a Minister of the Crown to a named individual, intended to be

presented to the Governments of foreign nations and to be used for that individual’s protection as a British subject in foreign countries … ’

By its terms it requests and requires in the name of His Majesty all those whom it may concern 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. It is, I think, true that the possession of a passport by a British subject does not

increase the Sovereign’s duty of protection, though it will make his path easier. For him it serves as a voucher and means of identification. But the possession

of a passport by one who is not a British subject gives him rights and imposes upon the Sovereign obligations which would otherwise not be given or imposed.

It is immaterial that he has obtained it by misrepresentation and that he is not in law a British subject. By the possession of that document he is enabled to

obtain in a foreign country the protection extended to British subjects. By his own act he has maintained the bond which while he was within the realm bound

him to his Sovereign. The question is not whether he obtained British citizenship by obtaining the passport, but whether by its receipt he extended his duty of

allegiance beyond the moment when he left the shores of this country. As one owing allegiance to the King he sought and obtained the protection of the King

for himself while abroad.

Your Lordships were pressed by counsel for the appellant with a distinction between the protection of the law and the protection of the Sovereign, and he

cited many passages from the books in which the protection of the law was referred to as the counterpart of the duty of allegiance. Upon this he based the

argument that, since the protection of the law could not be given outside the realm to an alien, he could not outside the realm owe any duty. This argument in

my opinion has no substance. In the first place reference is made as often to the protection of the Crown or Sovereign or Lord or Government as to the

protection of the law, sometimes also to protection of the Crown and the law. In the second place it is historically false to suppose that in olden days the alien

within the realm looked to the law for protection except in so far as it was part of the law that the King could by the exercise of his prerogative protect him. It

was to the King that the alien looked and to his dispensing power under the prerogative. It is not necessary to trace the gradual process by which the civic

rights and duties of a resident alien became assimilated to those of the natural-born subject; they have in fact been assimilated, but to this day there will be

found some difference. It is sufficient to say that at the time when the common law established between Sovereign Lord and resident alien the reciprocal

duties of protection and allegiance it was to the personal power of the Sovereign rather than to the law of England that the alien looked. It is not, therefore, an

answer to the Sovereign’s claim to fidelity from an alien without the realm who holds a British passport that there cannot be extended to him the protection of

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the law.

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What is this protection upon which the claim to fidelity is founded? To me, my Lords, it appears that the Crown in issuing a passport is assuming an

onerous burden, and the holder of a passport is acquiring substantial privileges. A well known writer on international law has said (see Oppenheim’s

International Law, 4th Edn, Vol I, p 556) that by a universally recognised customary rule of the law of nations every State holds the right of protection over its

citizens abroad. This rule thus recognised may be asserted by the holder of a passport which is for him the outward title of his rights. It is true that the

measure in which the State will exercise its right lies in its discretion. But with the issue of the passport the first step is taken. Armed with that document the

holder may demand from the State’s representatives abroad and from the officials of foreign Governments that he be treated as a British subject, and even in

the territory of a hostile State may claim the intervention of the protecting Power. I should make it clear that it is no part of the case for the Crown that the

appellant is debarred from alleging that he is not a British subject. The contention is a different one: it is that by the holding of a passport he asserts and

maintains the relation in which he formerly stood, claiming the continued protection of the Crown and thereby pledging the continuance of his fidelity.

In these circumstances I am clearly of opinion that so long as he holds the passport he is within the meaning of the Statute a man who, if he is adherent to

the King’s enemies in the realm or elsewhere commits an act of treason.

There is one other aspect of this part of the case with which I must deal. It is said that there is nothing to prevent an alien from withdrawing from his

allegiance when he leaves the realm. I do not dissent from this as a general proposition. It is possible that he may do so even though he has obtained a

passport. But that is a hypothetical case. Here there was no suggestion that the appellant had surrendered his passport or taken any other overt step to

withdraw from his allegiance, unless indeed reliance is placed on the act of treason itself as a withdrawal. That in my opinion he cannot do. For such an act is

not inconsistent with his still availing himself of the passport in other countries than Germany and possibly even in Germany itself. It is not to be assumed that

the British authorities could immediately advise their representatives abroad or other Foreign Governments that the appellant, though the holder of a British

passport, was not entitled to the protection that it appeared to afford. Moreover the special value to the enemy of the appellant’s services as a broadcaster was

that he could be represented as speaking as a British subject and his German work book showed that it was in this character that he was employed, for which

his passport was doubtless accepted as the voucher.

The second point of appeal (the first in formal order) was that in any case no English court has jurisdiction to try an alien for a crime committed abroad

and your Lordships heard an exhaustive argument upon the construction of penal statutes. There is, I think, a short answer to this point. The Statute in

question deals with the crime of treason committed within, or, as was held in R v Casement, without the realm: it is general in its terms and I see no reason for

limiting its scope except in the way that I indicated earlier in this opinion, viz: that, since it is declaratory of the crime of treason, it can apply only to those

who are capable of committing that crime. No principle of comity demands that a State should ignore the crime of treason committed against it outside its

territory. On the contrary a proper regard for its own security requires that all those who commit that crime, whether they commit it within or without the

realm should be amenable to its laws. I share to the full the difficulty experienced by the Court of Criminal Appeal in understanding the grounds upon which

this submission is based, so soon as it has been held that an alien can commit, and that the appellant did commit, a treasonable act outside the realm. I concur

in the conclusion and reasons of that court upon this point.

Finally (and these are the third and fourth grounds of appeal to the Court of Criminal Appeal) it was urged on behalf of the appellant that there was no

evidence that the renewal of his passport afforded him or was capable of affording him any protection or that he 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.

Upon these points too, which are eminently matters for the Court of Criminal 􀂭 192􀀉 Appeal, I agree with the observations of that court. The document

speaks for itself. It was capable of affording the appellant protection. He applied for it and obtained it, and it was available for his use. Before this House the

argument took a slightly different turn. For it was urged that there was no direct evidence that the passport at any material time remained in the physical

possession of the appellant and that upon this matter the jury had not been properly directed by the judge in that he assumed to determine as a matter of law a

question of fact which it was for them to determine. This point does not in this form at least appear to have been taken before the Court of Criminal Appeal

and your Lordships have not the advantage of knowing the views of the experienced judges of that court upon it. Nor, though the importance of keeping

separate the several functions of judge and jury in a criminal trial is unquestionable, can I think that this is a question with which your Lordships would have

had to deal in this case, if no other issue had been involved. For it is clear that here no question of principle is involved. The narrow point appears to be

whether in the course of this protracted and undeniably difficult case the judge removed from the jury and himself decided a question of fact which it was for

them to decide. This is a matter which can only be determined by a close scrutiny of the whole of the proceedings.

My Lords, this is a task which in the circumstances of this case your Lordships have thought fit to undertake. I do not propose to examine in detail the

course of the trial and the summing-up of the judge, though I may perhaps be permitted to say that it was distinguished by conspicuous care and ability on his

part. But having read the whole of the proceedings I have come to the clear conclusion that the judge’s summing-up is not open to the charge of misdirection.

It may well be that there are passages in it which are open to criticism. But the summing-up must be viewed as a whole and upon this view of it I am satisfied

that the jury cannot have failed to appreciate and did appreciate that it was for them to consider whether the passport remained at all material times in the

possession of the appellant. Upon this question no evidence could be given by the Crown and for obvious reasons no evidence was given by the appellant. It

has not been suggested that the inference could not fairly be drawn from the proved facts if the jury thought fit to draw it and I think that they understood this

and did draw the inference when they returned the general verdict of “Guilty.” This point, therefore, also fails.

My Lords, I am asked by Lord Simonds to say that he concurs in the opinion which I have just read.

LORD MACMILLAN. My Lords, I have had the advantage of reading in print the opinion which has just been delivered by Lord Jowitt LC. I am in entire

agreement with it.

LORD WRIGHT. My Lords, I also have had the same advantage. I fully agree with and concur in the opinion which has just been delivered by Lord Jowitt

LC.

LORD PORTER. My Lords, I have already stated that I agree with your Lordships in thinking that the renewal of William Joyce’s passport, obtained on 24

August 1939, was evidence from which a jury might have inferred that he retained that document for use on and after 18 September 1939, when he was proved

first to have adhered to the enemy, and, therefore, I can deal with this part of his appeal very shortly.

It is undisputed law that a British subject always, and an alien whilst resident in this country, owe allegiance to the British Crown and, therefore, can be

guilty of treason. The question, however, remains whether an alien who has been resident here, but leaves this country, can, whilst abroad, commit an act of

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treason. The allegiance which he owes whilst resident in this country is recognised in authoritative text books and the relevant cases to be owed because, as

Hale (Pleas of the Crown (1778), Vol 1, p 59) says, “the subject hath his protection from the King and his laws.”

If then he has protection he owes allegiance, but the quality of the protection required has still to be determined. On behalf of the appellant it was

strenuously contended that unless the alien was enjoying the protection of British law he owed no allegiance. My Lords, I think that this is to narrow the

obligation too much. Historically the protection of the Crown through its dispensing 􀂭 193􀀉 power was afforded to the alien in this country earlier than the

legal protection which came later. Therefore any protection, whether legal or administrative, would in my view be enough to require a corresponding duty of

allegiance.

It was said in the second place, however, that in no case could an alien, however long he had been resident here, commit an act of treason whilst he was

abroad. This argument again seems to me to limit unduly the extent of his obligation. It is in contradiction of the resolution of the judges in 1707, whereby it

was declared that if an alien who has been resident here goes abroad himself but leaves his family and effects here under the same protection, the duty (ie, of

allegiance) still continues. This resolution has been criticised as being merely the opinion of the judges in consultation with prosecuting counsel, and not

given as a decision in any case. The criticism is true, but the resolution has been repeated in text book after text book of high authority, and though not

authoritative as a legal decision, it still has the weight of its repetition by great lawyers and the fact that it is nowhere challenged. Foster, Hale, East, Hawkins,

Chitty and Bacon all set it out. Blackstone alone omits it, but Blackstone was giving a general view of the laws of England, and an omission to set out a

particular extension of the general rule is not necessarily a denial of its existence. Equally the fact that many cases also state only the general rule in cases

where no more is required is not a denial of the existence of certain modifications or extensions of it.

It is true that even in the case with which the resolution deals the alien, though absent himself, is vicariously protected by the laws of this country in the

person of his family and effects, but it is still no more than protection. Does then the possession of a passport afford any such protection as that contemplated

by the rule? I think it does. Even after war is declared, some protection could be afforded to holders of British passports through the protecting power, and,

again, it would be useful and afford protection in neutral countries. In R v Brailsford, Lord Alverstone says ([1905] 2 KB 730, at p 745):

‘It will be well to consider what a passport really is. It is a document issued in the name of the Sovereign on the responsibility of a Minister of the

Crown to a named individual, intended to be presented to the Governments of foreign nations and to be used for that individual’s protection as a British

subject in foreign countries … ’

and the late Sir William Malkin in the Law Quarterly Review, Vol 49, p 493, speaks of:

‘… The extensive, though perhaps somewhat ill-defined, branch of international law which may be called … “the diplomatic protection of citizens

abroad.“’

It must be remembered that the matter to be determined is not whether the apellant took upon himself a new allegiance, but whether he continued an

allegiance which he had owed for some 24 years, and a lesser amount of evidence may be required in the latter than in the former case. I cannot think that

such a resident can in war time pass to and fro from this country to a foreign jurisdiction and be permitted by our laws to adhere to the enemy there without

being amenable to the law of treason. I agree with your Lordships also in thinking that if an alien is under British protection he occupies the same position

when abroad as he would occupy if he were a British subject. Each of them owes allegiance, and in so doing each is subject to the jurisdiction of the British

Crown.

“The law of nations,” says Oppenheim (International Law, 5th Edn, Vol 1 p 266), “does not prevent a State from exercising jurisdiction within its own

territory over its subjects travelling or residing abroad, since they remain under its personal supremacy.” Moreover, in R v Casement the point was directly

decided in the case of a British subject who committed the act of adhering to the King’s enemies abroad, and the decision was not seriously controverted

before your Lordships. But, my Lords, though the renewing of a passport might in a proper case lead to the conclusion that the possessor, though absent from

the country, continued to owe allegiance to the British Crown, yet in my view the question whether that duty was still in existence depends upon the

circumstances of the individual case and is a matter for the jury to determine. In the present case, as I understand him, the judge ruled that in law the duty of

allegiance continued until the protection given by the passport came to an 􀂭 194􀀉 end—ie, in a year’s time—or at any rate until after the first act of adhering

to the enemy, which I take to be the date of the apellant’s employment as broadcaster by the German State on 18 September 1939.

The Court of Criminal Appeal take, I think, the same view, but since your Lordships, as I understand, think otherwise, I must set out the facts as I see

them. The appellant, admittedly an American subject, but resident within this realm for some twenty-four years, applied for and obtained a passport, as a

British subject, in 1933. This document continued to be effective for five years, and was renewed in 1938 and again on 24 August 1939. Extensions are

normally granted for one year, and that given to the appellant followed the normal course. It would, I think, not be an unnatural inference that he used it in

leaving England and entering Germany, but in fact nothing further was proved as to the appellant’s movements, save that his appointment as broadcaster by

the German State, dated 18 September 1939, was found in his possession when he was captured, and that at any rate by 10 December he had given his first

broadcast. Nothing is known as to the passport after its issue, and it has not since been found.

My Lords, for the purpose of establishing what the judge’s ruling was, I think it necessary to quote his own words to the representatives of the Crown and

of the prisoner before they addressed the jury. They are as follows:

‘I shall direct the jury on count 3 [the only material count] that on Aug. 24, 1939, when the passport was applied for, the prisoner beyond a shadow

of doubt owed allegiance to the Crown of this country and that on the evidence given, if they accept it, nothing happened at the material time thereafter

to put an end to the allegiance that he then owed. It will remain for the jury, and for the jury alone, as to whether or not at the relevant dates he adhered

to the King’s enemies with intent to assist the King’s enemies. If both or either of you desire to address the jury on that issue, of course, now is your

opportunity.’

After that ruling both counsel proceeded to address the jury, the defence submitting that the appellant had not adhered to the King’s enemies, the

Attorney General that he had. No other topic was touched upon by either of them, and in particular no argument was addressed to the question whether the

appellant still had the passport in his possession and retained it for use or as to whether he still owed allegiance to the British Crown. After counsel’s address

to the jury the judge summed up, and again I think I must quote some passages from his observations.

One such is:

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‘Under that count [i.e., count 3] there are two matters which have got to be established by the prosecution beyond all reasonable doubt … The first

thing that the prosecution have to establish is that at the material time the prisoner, William Joyce, was a person owing allegiance to our Lord the King

… . my view, I have already intimated … as a matter of law is, if you as a jury accept the facts which have been proved in this case beyond

contradiction—of course you are entitled to disbelieve anything you wish—if you accept the facts which have been proved and not denied in this case,

then at the time in question, as a matter of law, this man William Joyce did owe allegiance to our Lord the King, notwithstanding the fact that he was not

a British subject at the material time. Now, members of the jury, although that is a matter for me entirely and not for you, I think it will be convenient if

I explain quite shortly the reasons by which I have arrived at that view, partly for your assistance, explanation, and perhaps for consideration hereafter in

the event of this case possibly going to a higher court.’

Again he said:

‘None the less I think it is the law that if a man who owes allegiance by having made his home here, having come to live here permanently, thereby

acquiring allegiance, as he undoubtedly does, if he then steps out of his realm armed with the protection which is normally afforded to a British

subject—improperly obtained, it may be, but none the less obtained … using and availing himself of the protection of the Crown in an executive

capacity which covers him while he is abroad, then in my view he has not thereby divested himself of the allegiance which he already owed.’

Later he says:

‘So between Aug. 24, and Sept. 18, 1939, armed with a British passport, he had somehow entered Germany. Now members of the jury, thereafter

up until July 2, 1940, when his passport ran out, he remained under such protection as that passport could afford him during his stay in Europe.’

􀂭 195􀀉

Once again he says:

‘I do not think I am in any way extending the principles of the law in saying that a man who in this way adopts and uses the protection of the

sovereign to whom he has already acquired an allegiance remains under that allegiance and is guilty of treason if he adheres to the King’s enemies.

Members of the jury, I accordingly pass from that aspect of the matter; that is my responsibility. I may be wrong; if I am I can be corrected. My

duty is to tell you what I believe to be the law on the subject and that you have to accept from me, provided you believe those facts about the passport,

going abroad and so forth. If you do not believe that you are entitled to reject it and say so, because you are not bound to believe everything, but if you

accept the uncontradicted evidence that has been given, then in my view that shows that this man at the material time owed allegiance to the British

Crown.

Now if that is so, then the matter passes into your hands, and from now onwards I am dealing with matters which are your concern and your concern

alone, with which I have got nothing to do; they are matters of fact, and the onus of proving those facts is upon the prosecution from first to last, and it

never shifts.

Now what have they got to prove? They have got to prove that during this period, as I have already indicated, this man adhered to the King’s

enemies without the realm, namely, in Germany.’

The judge than refers to a broadcast, of which there was uncontradicted evidence that it had been made before 10 December 1939 to the prisoner’s

engagement as a German broadcaster to Britain, and to the prisoner’s statement, which was put in evidence by the Crown and from which I need only quote

the words:

‘Realising, however, that at this critical juncture I had declined to serve Britain, I drew the logical conclusion that I should have no moral right to

return to that country of my own free will and that it would be best to apply for German citizenship and make my permanent home in Germany.’

After reading the statement the judge added:

‘I think that is the whole of the very short material upon which you have to come to the conclusion as to whether or not it is proved to your

satisfaction beyond all reasonable doubt that during the period in question this man adhered to the King’s enemies, comforted and aided them with

intent to assist them, and that he did so voluntarily. Those are the matters which you have to consider.’

My Lords, I have read and re-read the summing-up as a whole, and I think I have quoted all the material passages from it. Whether I pay regard to its

general import or confine myself to the particular passages set out above, I cannot read the words of the judge as doing other than ruling that in law the

appellant continued to owe allegiance to His Majesty on 18 September 1939, on 10 December 1939, and, indeed, until 2 July 1940, and leaving to the jury

only the question whether during this period the appellant adhered to the King’s enemies. The passage in the summing-up contained the words “provided you

believe those facts about the passport, going abroad and so forth” in my opinion merely instructed the jury that they had to be satisfied that the accused man

did obtain a renewal of his passport, did go abroad, and did make a statement, but that if they were so satisfied, then in law the prisoner continued to owe

allegiance at all material times after he left this country. If it means more than this, I should regard it as a totally inadequate direction as to what must be

proved in order to show that the allegiance continued after he left this country. But I do not think it does mean more than I have indicated.

As I have stated, the renewal of the passport on 24 August 1939 was, in my view, evidence from which a jury might infer the continuance of the duty of

allegiance. What the prosecution have to show is that that duty continued at least until 18 September. The judge, as I see it, regards the renewal as proving

conclusively that the duty continued until the passport ceased to be valid, unless some action on the part of the Crown or the appellant was proved which

would put an end to its protection. The Court of Criminal Appeal, in my opinion, took the same view. Their words are ([1945] 2 All ER 673, at p 675):

‘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 Sept. 18, 1939, and between that date and July 2, 1940, this appellant did owe allegiance to the King. We agree with TUCKER, J., that the

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proper way of approaching that question is to see 􀂭 196􀀉 whether anything had happened between Aug. 24, and Sept. 18, to divest the appellant of that

duty of allegiance which he unquestionably owed at the earlier of those dates.’

This ruling, as I see it, can only mean that the appellant’s duty of allegiance remained in force until 2 July 1940, unless it was shown by him or on his

behalf that something had occurred to put an end to that duty. It puts the onus on him to show some action terminating that obligation. The passport was

never found again, and he may have used it only to gain admittance to Germany and may then have discarded it. Indeed, his statement, if believed, indicates

that this was his object, and the mere fact that the renewal was for a year proves nothing, since, as was proved in evidence, that is the normal period of

extension. There is no evidence that he kept it for use on or after 18 September. If I thought that the obtaining of the passport on 24 July proved in law that

the appellant retained it for use at least until 18 September, unless he was shown to have withdrawn his allegiance, I should accept this ruling. But I do not

think it correct. It could only be supported on the ground that allegiance continues until the appellant shows that it is terminated.

The Attorney General supported this contention by a reference to Archbold’s Criminal Pleading, Evidence And Practice, 31st Edn, at p 330, where it is

stated that if a matter be within the knowledge of the accused and unknown to the Crown the onus of proof is cast upon the former. For this proposition R v

Turner is said to be an authority. But that case has been explained as dependent upon the special provisions of the Game Laws, and as being, therefore, not of

general application. The true principle is, I think, set out in Phipson on Evidence, 8th Edn, p 34, and Best on Evidence, 12th Edn, p 252, and is explained by

Holroyd J (himself a party to the judgment in R v Turner), in R v Burdett ((1820), 4 B & Ald 95, at p 140):

‘[The rule in question] is not allowed to supply the want of necessary proof, whether direct or presumptive, against a defendant of the crime with

which he is charged, but when such proof has been given, it is a rule to be applied in considering the weight of evidence against him, whether direct or

presumptive, when it is unopposed, unrebutted, or not weakened by contrary evidence, which it would be in the defendant’s power to produce, if the fact

directly or presumptively proved were untrue.’

If this be the true principle, the failure of the prisoner to give evidence as to his dealing with the passport goes to increase the weight of the evidence

against him, but does not make the evidence of his applying for and receiving it proof conclusive in law that he continued to retain it for use or at all. That he

received it may be some proof to go to the jury that he retained it, but it is no more; it is not a matter upon which a court is entitled to rule that a jury must

draw the inference that he retained his allegiance. Indeed at one point in his argument the Attorney General used language which in my view, accepted this as

the true principle when he said:

‘I put the passport merely as evidence of the existence of protection. If he [i.e., the accused] discarded it on his return that might make a difference.’

To this observation I would merely add that the renewal of the passport was at best but some evidence from which a jury might infer that the duty of allegiance

was still in existence. Unless, however, the accused man continued to retain it for use as a potential protection, the duty of allegiance would cease, and it was

for the jury to pronounce upon this matter.

I do not understand your Lordships to rely upon the proviso to s 4 of the Criminal Appeal Act, nor do I think it could be said that no substantial

miscarriage of justice had occurred, if I am right in considering that the matter should have been left to the jury. The test has been laid down by your

Lordships’ House to be whether a reasonable jury properly directed must have come to the same conclusion. In the present case a reasonable jury properly

directed might have considered that the allegiance had been terminated. Against the mere receipt of the passport there has to be set the fact that its possession

was at least desirable if not necessary to enable the accused man to proceed to Germany from this country, the fact that it was not found in his possession again

or anything further known of it, his statement as to his intention of becoming naturalised in Germany and his acceptance of a post from the German State. At

any rate these were matters for a jury properly directed to consider. They were not directed on them and, as I have stated in my view, they were told that the

matter was one of law and not for them.

􀂭 197􀀉

My Lords, the question of the extent to which an alien long resident in this country continues to owe allegiance after he has left it and whether the request

for and acceptance of a passport makes the duty of allegiance still due until the protection of that passport ceases by effluxion of time or at least for some

period after its issue is, and has been certified to be, a point of law of exceptional public importance. One matter to be decided in solving that question is the

boundary line between the functions of a judge and those of a jury. Apart from this the principle that questions which are rightly for the jury should be left to

them and that a proper direction should be given is, as I think, also of great public importance. The one matter concerns this country only in the exigencies of

war, though then no doubt it is of vital importance: the other is a necessary element in the true administration of the law in all times of peace and war. If the

safety of the realm in war time requires action outside the ordinary rule of law, it can be secured by appropriate measures such as a Defence of the Realm Act,

but the protection of subject or foreigner afforded through trial by jury and the due submission to the jury of matters proper for their consideration is important

always, but never more important than when the charge of treason is in question.

For these reasons I would myself have allowed the appeal.

Appeal dismissed.

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

C StJ Nicholson Esq Barrister.

[1946] 1 All ER 198