German spy Josef Jakobs was charged under the Treachery Act, 1940, tried by court martial and executed by firing squad on 15 August 1941. In total, 16 spies were executed within England during World War 2 under the Treachery Act, yet many others were spared. What was the Treachery Act and how did it come to pass?
Emergency Powers (Defence) Bill
In August 1939, with war looming on the horizon, Britain passed the Emergency Powers (Defence) Bill. The Bill allowed the government to do whatever it felt was necessary to pursue the war effectively on the Home Front.
A Loop-Hole
The Bill did not include any provision for the death penalty should anyone breach the Defence Regulations with intent to assist the enemy. At the time, it was thought that any such acts could best be dealt with under the Treason Act of 1351. It was only later that the government decided that the Treason Act was far too antiquated and cumbersome to handle potential espionage or sabotage cases in the modern war (although the traitor William Joyce (Lord Haw Haw) was later prosecuted under the Treason Act). In addition, the Treason Act only applied to British citizens and resident aliens who owed allegiance to the King. The government realized that it was doubtful if the Treason Act could be applied to an alien who had come to England surreptitiously for such a person did not owe allegiance to the Crown. But the deficiencies in the Defence Regulations was only recognized in May 1940.
Treachery Act, 1940
In mid May, the British Army and its allies had their breath taken away by the lightening fast advance of the German Army as it invaded the Low Countries (and eventually France). Dismayed by the speed and ease with which the Germans moved through Belgium, Luxembourg and the Netherlands, many British politicians speculated that there must have been an active Fifth Column within those countries that helped the German invasion. The Prime Minister, Neville Chamberlain, was not seen as an effective wartime leader and resigned. He was replaced by Winston Churchill who was appointed Prime Minister by King George VI. Churchill was a far more formidable opponent for Germany.
Faced with the possibility of a German invasion of the British Isles, the British Government quickly drew up the Treachery Act to handle Fifth Column activities, sabotage and potential legions of espionage agents. On 22 May, 1940, the Treachery Act sped through the House of Commons, going through all readings and being passed on to the House of Lords. On 23 May, the House of Lords passed the Act within a few minutes and sent it on to the King who gave Royal Assent that same evening. The Treachery Act “was the creation of a Parliament of a free nation superbly determined, in any extremity of circumstances, to defend its liberties and its life.” (Modern Law Review, p. 218)
The overall gist of the Treachery Act was simple – if someone did something with intent to help the enemy, then they would be prosecuted and, if found guilty, be punished with death.
Commission of an act
“If, with intent to help the enemy, any person does, or attempts or conspires with any other person to do, any act which is designed or likely to give assistance to the naval, military or air operations of the enemy, to impede such operations of His Majesty’s forces, or to endanger life, he shall be guilty of felony and shall on conviction suffer death.”
Prosecution
Prosecution of the act could happen through civil court or court martial. Court martials could be used for an enemy alien, in other words, for a person who was a citizen of a country at war with Britain.
Punishment
If found guilty of the offence, the accused was to be punished as if they had been convicted of murder–the sentence was to be death. Generally the method of execution was death by hanging but if the Secretary of State decided that, at the time of the offence, the person had been a member of the armed forces (of the Crown or of any other foreign power, including the enemy), then death could be by firing squad.
Capital Punishment in the United Kingdom
The imposition of the death penalty in the Treachery Act was an interesting development in Britain. For over 125 years prior to 1940, Britain had been moving in the direction of doing away with the death penalty. In 1808, Samuel Romilly introduced reforms to reduce the number of offences (220 at its height) for which the death penalty could be imposed. No longer could one be sentenced to death for pick-pocketing or hanging around with gypsies for a month. In 1823, Parliament abolished the death penalty for letter-stealing and sacrilege, among other things. That same year, judges could commute the death penalty for all offences except murder and treason. In 1861, the list of capital crimes was reduced to murder, treason, espionage, arson in royal dockyards and piracy with violence. The mandatory punishment for murder was death by hanging although the Home Secretary could commute the sentence of one of life imprisonment.
In 1938, the House of Commons held a vote that called for legislation to abolish hanging in peacetime for a five-year experiment. When war broke out in 1939, the experiment was postponed. The stress of war and the struggle for national independence meant that Britain took a step backwards in regards to capital punishment.
Opposition to the Treachery Act, 1940
The Treachery Act was hustled through British Parliament in the space of two days, culminating with Royal Assent. Despite the speed with which it went through Parliament, there were some politicians who courageously spoke up and questioned the necessity for such an act and the use of the death penalty.
In the next post, on Friday, we’ll take a look at what concerns were brought up by Members of Parliament.