Josef Jakobs - A Victim of the Treachery Act - Part 2
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Old House of Commons - was destroyed by German bombs in 1941 (from Wikipedia) |
On May 22 and May 23, the Treachery Act bill was rushed through the House of Commons and the House of Lords before receiving Royal Assent.
Treachery Act in the House of Commons, May 22, 1940
When the House of Commons was presented with the Treachery Act on 22 May, 1940, there was a fair amount of discussion surrounding its implementation. While the vast majority of MPs supported the implementation of the Act, there were several MPs who had concerns about the Act and raised their voices in courageous protest.
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Eleanor Rathbone |
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Sir John Anderson (from Wikipedia) |
Defence Regulation 2A dealt with "an act likely to assist the enemy or prejudice the public safety or the defence of the Realm or the efficient prosecution of the war". If a person were convicted of that he would suffere penal servitude for life.
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George Benson (from National Portrait Gallery) |
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Sir Ralph Glyn (from the Peerage) |
Mr. Thomas Edmund Harvey (Combined English Universities) was opposed to the death penalty and asked the House to consider not merely the question of principle but the question of expediency. Executing enemy aliens could lead to hard feelings between the two countries at a later date. The second problem with the death penalty was its irrevocability. According to the Treachery Act, the intention of the offender was of primary importance. How could any court make a perfect judgement as to intention? In most cases, intention could only be inferred by a process of reasoning deduced from acts. Mistakes might be made that might only come to light afterwards. If the death penalty was inflicted, there was no possibility of redress. Harvey agreed that severe measures should be taken but suggested that the Treachery Act should be amended to included a clause that would allow the court to impose a very long sentence of imprisonment. He didn't like idea of charging a person jointly under the Defence Regulations and Treachery Act but much preferred giving an option to the court in the Act itself.
Mr.
James Barr (MP for Coatbridge) had sat on the Select Committee on Capital
Punishment in 1930 which considered the question of capital punishment
in cases tried by civil courts in times of peace. They concluded that
the death penalty was not a deterrent. If the death penalty was not a
deterrent in peace time, then it could not be a deterrent in war-time.
Major Milner noted that it was not essential in every case, after a verdict of "guilty" that the death penalty should necessarily be inflicted. "I am aware that this is the law at present in regard to murder, and indeed in regard to treason and one or two other offences, but the Home Secretary pointed out that it would be competent for the Attorney-General so to conduct a prosecution as to join other and lesser offences with those constituting the charge under the Bill. In that way, a loophole would be found whereby, in less serious cases of offences coming under the Bill, it would be possible for the court to award a less penalty than death.
Mr.
Samuel Silverman (MP for Nelson and Colne) had his doubts about the bill regarding the wording "with
intent to help the enemy". That would be the first thing that the
prosecution would have to prove and the onus would lie upon the
prosecution. He wondered if there was not a legal rule that the court
might infer intention, in which case all the prosecution would have to say
would be "I cannot prove any actual
intention positively, but I can and I do prove that it is a reasonable
consequence of this act that it will have this effect; as every man is
presumed to intend reasonable consequences I have proved reasonable
consequences, and I have therefore proved the intent." The Attorney
General did not think that there was any such danger and that the burden
was on the prosecution to convince the jury.
Lt. Col. Sir William Allen (MP for Armagh) had a question regarding the use of the court martial since he had seen courts martial in which not a single person had any knowledge of the law. The Judge Advocate General might be neither a judge, nor an advocate, nor a general. He requested that at least some one person on the court martial panel should have some knowledge of the law.
A Proposed Amendment
After
the second reading, Mr. Thomas Harvey (Combined English Universities) moved that the following clause be
added to the penalty of death--"or imprisonment for a period not
exceeding 20 years". This would give the court an option for punishment.
Otherwise, if the prisoner was not charged jointly under the Defence
Regulations and the Treachery Act, but only under the Treachery Act, then there was really only recourse to
the death penalty. Mr. Cecil Wilson (MP for Sheffield, Attercliffe) supported
the amendment. Mr. George Muff (MP for Hull, East) also supported the amendment and
that the punishment should fit the crime.
Mr. Osbert Peake,
the Under-Secretary of State for the Home Department did not advise the
House of Commons to accept the amendment. The Treachery Act was designed
to deal only with the most serious cases of the base crime of
treachery. Less serious case either of sabotage or espionage, or acts
done with intent to assist the enemy, could be dealt with under Defence
Regulations (2A and 2B). The Treachery Act was only ever intended to
deal with cases of the most serious character. Unless there was the
clearest possible evidence of all the most serious elements of the
charge, undoubtedly the prosecution would join the more serious charge
with lesser charges under the Defence Regulations. For him, the real
argument against accepting the Amendment was that it would be contrary
to British judicial procedure and tradition to give any alternative to
the death penalty and to place a judge in the position of having to
choose which punishment. The Treachery Act was designed to meet only the
most serious cases imaginable. If the charge was not of that character,
other charges could be joined for which smaller penalties were provided
under the Defence Regulations. There was, of course, always the
preogative of mercy which could be exercised by the Crown.
The amendment was rejected.
Conclusion
From the above discussion it is clear that the Treachery Act was meant to be applied in "the most serious cases of the base crime of treachery. Less serious cases of sabotage, espionage, or acts done with intent to help the enemy could be prosecuted under the existing Defence Regulations (2A & 2B). The Treachery Act's only punishment was a sentence of death. Thus, instead of giving the judge a choice between death and penal servitude, the choice was simply passed up the line to the Prosecutor. That person would get to decide whether or not a person should be charged jointly under the Treachery Act & the Defence Regulations, allowing a possible sentence of imprisonment or solely under the Treachery Act, with death being the only option upon conviction.
Several MPs had questions about the language of the act and its use of the word "intent", with good reason. The intent of a person is virtually impossible to decide with any certainty. As we shall see in the next posting when we take a look at some of the people convicted under the Treachery Act.
Major Milner noted that it was not essential in every case, after a verdict of "guilty" that the death penalty should necessarily be inflicted. "I am aware that this is the law at present in regard to murder, and indeed in regard to treason and one or two other offences, but the Home Secretary pointed out that it would be competent for the Attorney-General so to conduct a prosecution as to join other and lesser offences with those constituting the charge under the Bill. In that way, a loophole would be found whereby, in less serious cases of offences coming under the Bill, it would be possible for the court to award a less penalty than death.
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Lt. Col. Sir William Allen (from National Portrait Gallery) |
Lt. Col. Sir William Allen (MP for Armagh) had a question regarding the use of the court martial since he had seen courts martial in which not a single person had any knowledge of the law. The Judge Advocate General might be neither a judge, nor an advocate, nor a general. He requested that at least some one person on the court martial panel should have some knowledge of the law.
A Proposed Amendment
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Thomas Edmund Harvey (from NationalPortrait Gallery) |
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Osbert Peake (from Ebay) |
The amendment was rejected.
Conclusion
From the above discussion it is clear that the Treachery Act was meant to be applied in "the most serious cases of the base crime of treachery. Less serious cases of sabotage, espionage, or acts done with intent to help the enemy could be prosecuted under the existing Defence Regulations (2A & 2B). The Treachery Act's only punishment was a sentence of death. Thus, instead of giving the judge a choice between death and penal servitude, the choice was simply passed up the line to the Prosecutor. That person would get to decide whether or not a person should be charged jointly under the Treachery Act & the Defence Regulations, allowing a possible sentence of imprisonment or solely under the Treachery Act, with death being the only option upon conviction.
Several MPs had questions about the language of the act and its use of the word "intent", with good reason. The intent of a person is virtually impossible to decide with any certainty. As we shall see in the next posting when we take a look at some of the people convicted under the Treachery Act.
References
Treachery Act, 1940 - the text of the Act
House of Commons, May 22, 1940 - second reading of Treachery Act
House of Lords, May 23, 1940 - passage of Treachery Act
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