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Tuesday, 30 October, 2001, 18:33 GMT
Could UK Taleban fighters be tried for treason?
Pakistani volunteers head to join the Taleban
The Taleban has called for foreign volunteers
Do treason laws framed in 1351, which haven't been used for more than 50 years, apply in the 'first' war of the 21st Century?

The prospect that British citizens may have taken up arms to aid the Taleban regime in Afghanistan has horrified many across the political spectrum.

Tory MP Ann Widdecombe says that "if they come back to this country, they shouldn't imagine that they can then just enjoy the democratic freedoms and rights of a free society, when they have fought against it".

Labour peer Lord Rooker agreed that prosecutions for treason were likely since the crime was like "an elephant on the doorstep" - you recognised it when you saw it.

Yasir Khan
Briton Yasir Khan is alleged to have joined the Taleban and died in a US bombing
However, treason is an animal rarely seen and the laws used to prosecute the crime have grown dusty with neglect.

Legal textbook Blackstones Criminal Practice stopped including the Treason Act of 1351 almost a decade ago, says one of its compliers Professor Michael Gunn.

"No lawyer practising today would have studied high treason even as a student."

Though tinkered with since, the bulk of English treason legislation dates from the reign of Edward III, as the strict definition of the offence attests.

Against the Crown

"When a Man doth compass or imagine the Death of our Lord the King, or of our Lady his Queen, or of their eldest Son and Heir; or if a man do violate the King's companion or the King's eldest Daughter unmarried or if a Man do levy War against the King they ought to be judged Treason."

"As far as I'm aware," says Mr Gunn, "the last British treason trial would have been that of William Joyce after the war."

Joyce - popularly known as Lord Haw Haw - was recruited by the Nazis to broadcast sneering radio propaganda to British audiences.

The fascist was hanged at Wandsworth gaol for treason despite protesting that he was American-born and the holder of German citizenship.

William Joyce
Lord Haw Haw's UK passport proved fatal
To be convicted of treason, the defendant has to be shown to have broken their duty of allegiance to the Crown. The fact that Joyce had held a valid British passport when he began broadcasting was enough to see him climb the gallows.

Mr Gunn says British citizens carry this duty of allegiance wherever they go, but to prosecute British Taleban volunteers for treason it would have to be proved that they were acting to make war on this country.

Treason laws apply if a state of war has been declared or in the case of "actual hostilities against the UK", however, whether they have been activated by the current "war on terrorism" is open to debate.

Simple murder

"If British Taleban volunteers kill British soldiers the more appropriate charge would be murder. They could be tried here because there are no territorial limits if one British citizen kills another," says Mr Gunn.

International security expert Kevin O'Brien says a 1977 Law Commission report suggested repealing the aged treason legislation and replacing it with a law framed to apply only in wartime.

Mr O'Brien says the unwieldy nature of the 1351 act prompted a new law to be passed in the dark days of 1940.

Facing the Nazi Blitzkrieg, Parliament pushed through the Treachery Act, which made no mention of allegiance, but merely sought to punish those "intent to help the enemy".

Royal Marines in Oman
Taking on the Marines could mean a murder charge
Theodore Schurch was the last Briton to be tried for this crime, after posing as a PoW to coax information from captured Allied soldiers for his fascist masters. He was hanged the day after William Joyce.

Should any British Taleban fighter ever face a treason trial the hangman will not await them.

The treason laws were last debated in 1998, when they - along with piracy laws - were declared no longer to be punishable by death.

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See also:

30 Oct 01 | UK Politics
UK Taleban fighters face treason charge
29 Oct 01 | UK
'My allegiance is to Allah'
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