Kennedy, Lewis (2020) Should there be a Separate Scottish Law of Treason? PhD thesis. https://theses.gla.ac.uk/81656/ Copyright and moral rights for this work are retained by the author A copy can be downloaded for personal non-commercial research or study, without prior permission or charge This work cannot be reproduced or quoted extensively from without first obtaining permission in writing from the author The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the author When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given Enlighten: Theses https://theses.gla.ac.uk/ [email protected] SHOULD THERE BE A SEPARATE SCOTTISH LAW OF TREASON? Lewis Kennedy, Advocate (MA, LLB, Dip LP, LLM) Submitted in fulfilment of the requirements for the Degree of Doctor of Philosophy School of Law College of Social Sciences University of Glasgow September 2020 Abstract: Shortly after the Union, the Treason Act 1708 revoked Scotland’s separate treason law in favour of England’s treason law. Historically, English treason law was imposed on Scots criminal law and was not always sensitive to the differences in Scottish legal institutions and culture. A review of the law of treason is in contemplation, it being under general attention more than at any time since the end of World War II. If there were to be a revival of UK treason law, the creation of a separate Scottish treason law may be a logical development given Scotland’s evolving devolution settlement. The thesis attempts to answer the question whether there should be a new, distinct, Scottish law of treason. If so, how might it be reformed for the modern era, refined for the Scottish context, and fit into the devolved system? An essentially ‘black-letter’ approach has been adopted – considering this issue in a strictly law-centred and legalistic manner – while making appropriate allowance for external factors such as policy and political considerations. Based on my normative evaluation of treason law, this thesis puts forward an argument that though current treason law is problematic, there is still justification for it. My original contribution to knowledge is to demonstrate how it can be rendered relevant for the modern Scottish context. Firstly, I argue that allegiance, traditionally at the heart of treason law, seems archaic and suggest the ways in which it can be modernised and reconstructed. The primary resources for doing so can be found in the Lauterpacht and Williams debate which followed Joyce. Treason’s core duty of allegiance can be re-interpreted in terms of Williams’ duty- based contractual model. Building on that modelling, a negative duty of allegiance (or duty of non- betrayal) emerges. Secondly, while thinking of treason to the UK as a general offence of breaking the bond of allegiance, there is room for a more Scottish inflexion in the way in which the offence might apply. This includes a Scottish political object of allegiance – incorporating Scottish political institutions as a complementary focus for potential allegiance – specifically, the Crown-in-Scotland. Its essential elements – actus reus, jurisdiction, mens rea and operable defences – can be recalibrated for any such revised allegiance model, with suitable Scottish inflexion. With this analysis, only a limited range of betraying acts emerges. Its actus reus can be reframed in terms of a construct grounded in ‘Adherence Treason’, referable to a national security harm principle and insisting that its commission involves providing material assistance to the enemy. The negative duty is underlined by removal of the commission of treason by only omission. Referencing the Draft Scottish Criminal Code, express statutory recognition might be made for the operation of the general common law defences of necessity, coercion and obeying superior orders. Its exceptional character commends provision for new specific statutory defences with contemporary resonance – including a ‘Public Interest Defence’, ‘Government Whistleblowing Defence’ and the Australian ‘Humanitarian Defence’. Formulating a Scottish treason law might provide a suitable template for UK reform. But this is more than a pragmatic justification. Though not materially different in terms of its offence 1 elements, its defence elements should reflect a principled Scottish deviation in the availability of common law defences of necessity, coercion and obeying superior orders. 2 Acknowledgements I should like to recognise and express my sincere thanks to my supervisors, Lindsay Farmer, and James Chalmers, for their considerable guidance, encouragement, and patience during the course of this journey. They have provided invaluable direction and constructive insight and I have been most fortunate in receiving the level of support which I experienced. In addition, I should like to acknowledge my gratitude to the members of the examining panel who carried out their duties in the evaluation of this dissertation and conducted the viva voce as part of the final assessment of this thesis. Special thanks to Sabina Siebert for her insightful comments. Finally, I have to mention how much support and encouragement I have received from the members of my family, as well as their expertise in proof reading throughout the process and especially in relation to their detailed editing of the final draft. Thank you also to Caroline for resolving last-minute IT glitches. 3 Table of Contents Author’s Declaration .............................................................................................................. 5 Chapter 1 – Introduction ........................................................................................................ 6 Chapter 2 – Towards a Modern Duty of Allegiance – The Allegiance Question ................ 36 Chapter 3 – Actus Reus – Towards a Modern Scottish Formulation ................................... 74 Chapter 5 – Defences ......................................................................................................... 154 Chapter 6 – Conclusion and Recommendations: ............................................................... 196 Appendix: ........................................................................................................................... 213 Table of Authorities and Bibliography .............................................................................. 217 4 Author’s Declaration: I declare that, except where explicit reference is made to the contribution of others, that this dissertation is the result of my own work and has not been submitted for any other degree at the University of Glasgow or any other institution. Name: Lewis Kennedy Signature: __________________________ 5 Chapter 1 – Introduction I. Context II. Value of Scottish Treason Law III. Relevance of Treason Law (i) ‘Fair Labelling’ and Moral Wrong of Betrayal (ii) Legal Certainty (iii) Moral Duty to Prosecute Home-grown Traitors (iv) Improving Risk Management for IE Offenders (v) Vengeance and Retribution IV. Problems with Reviving Treason Law (i) Treason, the Anachronism (ii) ‘Patriotic’/Nationalistic Treason – ‘The (British) Empire Striking Back’ (iii) Undue Deference to Monarchy (iv) Discredited by Historical Abuses (v) Ample Alternatives (vi) Peacetime Irrelevance V. Making Scottish Treason Law Relevant 6 I. Context: British treason law appears to be irrelevant. Treason is not addressed in the (Scottish) Jury Manual. Gordon’s Criminal Law provides only the most cursory consideration and was not intended as a modern reappraisal. The editors of Archbold have omitted it from all editions after 2009, declaring: "it seems unlikely that there will be any such prosecutions in the foreseeable future".1 The Law Commission’s distant 1977 Working Paper on modernising the law of offences against the state was never implemented.2 There is a paucity of contemporary sources and no recent precedent explaining how its core concepts might be defined in terms which are fit for purpose – though its continuing existence is expressly recognised by amending legislation and tentative allusions in case law.3 The literature is scant and it has received relatively little academic attention in this country. It is no longer part of any Scottish undergraduate course syllabus on criminal law. The tendency to ignore it in theorising about criminal law and explaining the general elements of criminal liability evidences its atavistic character.4 Although not formally abolished and remaining in the law, it plays a greatly restricted role. Even if not technically obsolete, current treason law appears to be regarded as no longer relevant – problematic even. It has lost its normative appeal and practical efficacy.5 Policy Exchange, a centre-right think tank, expressed concerns in their 2018 paper Aiding the Enemy that the existing law of treason is not a secure basis on which to bring prosecutions – that it is unfit for purpose, unworkable and should be updated.6 Confident of long-standing external security and internal stability, we have managed successfully without treason prosecutions. There may have been a reluctance to prosecute what was until 1998 a 1 Archbold: Criminal Practice and Pleading, Evidence and Practice 2020, para. 25-1 – though this is less emphatic than the suggestion in previous editions that it was "unlikely in the extreme that there will … be any such prosecutions." 2 Law Commission,