Treason Felony Act 1848

The Treason Felony Act 1848 (11 & 12 Vict. c. 12) is an Act of the Parliament of the United Kingdom of Great Britain and Ireland. Parts of the Act are still in force. It is a law which protects the Queen and the Crown.

The Treason Felony Act 1848[1]
Long titleAn Act for the better Security of the Crown and Government of the United Kingdom.
Citation11 & 12 Vict. c. 12
Territorial extentUnited Kingdom
Dates
Royal assent22 April 1848
Status: Amended
Text of the Treason Felony Act 1848 as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk.

The offences in the Act were originally high treason under the Sedition Act 1661 (later the Treason Act 1795), and consequently the penalty was death. However it was found that juries were often reluctant to convict people of capital crimes, and it was thought that the conviction rate might increase if the sentence was reduced to exile to the penal colonies in Australia (the penalty is now life imprisonment). Consequently, in 1848 three categories of treason (all derived from the 1795 Act) were reduced to felonies. (This occurred during a period when the death penalty in the United Kingdom was being abolished for a great many offences.) The Act does not prevent prosecutors from charging somebody with treason instead of treason felony if the same conduct amounts to both offences.[2]

It is treason felony to "compass, imagine, invent, devise, or intend":

  • to deprive the Queen of her crown,
  • to levy war against the Queen, or
  • to "move or stir" any foreigner to invade the United Kingdom or any other country belonging to the Queen.

Punishment and procedure

Treason felony is an indictable-only offence.[3] It is punishable with imprisonment for life or any shorter term.[4]

In Northern Ireland, a person charged with treason felony may not be admitted to bail except by order of the High Court or of the Secretary of State.[5]

Scottish Parliament

Treason felony is a reserved matter on which the Scottish Parliament cannot legislate.[6]

Text

The full text of the Act is available online.[7] The wording of section 3 of the Act is:

3. Offences herein mentioned declared to be felonies If any person whatsoever shall, within the United Kingdom or without, compass, imagine, invent, devise, or intend to deprive or depose our Most Gracious Lady the Queen, from the style, honour, or royal name of the imperial crown of the United Kingdom, or of any other of her Majesty’s dominions and countries, or to levy war against her Majesty, within any part of the United Kingdom, in order by force or constraint to compel her to change her measures or counsels, or in order to put any force or constraint upon or in order to intimidate or overawe both Houses or either House of Parliament, or to move or stir any foreigner or stranger with force to invade the United Kingdom or any other of her Majesty's dominions or countries under the obeisance of her Majesty, and such compassings, imaginations, inventions, devices, or intentions, or any of them, shall express, utter, or declare, by publishing any printing or writing ... or by any overt act or deed, every person so offending shall be guilty of felony, and being convicted thereof shall be liable ... to be transported beyond the seas for the term of his or her natural life.

Repealed provisions

Penal transportation was abolished in 1868,[8] leaving life imprisonment as the maximum sentence.

Section 4 of the Act contained strict rules about treason felony when committed only by speaking. A conviction required a confession in open court, or the evidence of two witnesses to prove the words spoken. Also a prosecution had to be brought within six days of the offence. Section 4 was repealed by the Statute Law Revision Act 1891.

Discussions

In 2001 The Guardian newspaper mounted an unsuccessful legal challenge to the Act in the High Court, alleging that the act "makes it a criminal offence, punishable by life imprisonment, to advocate abolition of the monarchy in print, even by peaceful means".[9] They sought a declaration that the Human Rights Act 1998 had altered its meaning so that only violent conduct was criminal. The court held that this was a hypothetical question that did not deserve an answer, since The Guardian was not being prosecuted. The case eventually went to the House of Lords on appeal in 2003. In a unanimous judgement the House agreed that the litigation was unnecessary, but most of the judges nevertheless agreed with (and none disagreed with) Lord Steyn's view that "the part of section 3 of the 1848 Act which appears to criminalise the advocacy of republicanism is a relic of a bygone age and does not fit into the fabric of our modern legal system. The idea that section 3 could survive scrutiny under the Human Rights Act is unreal."[10]

In December 2013 the Ministry of Justice said that Section 3 of the Act, which had made it an offence punishable by life imprisonment to print, or otherwise "by any overt act or deed" to support the abolition of the monarchy or to "imagine, invent, devise, or intend to deprive or depose" the monarch, had been repealed in early 2013, without publicity.[11] However, the Government later stated that the announcement that it had been repealed was wrong, and that it was still on the statute book.[12]

Relevant cases
  • R v. Mitchel (1848) 7 State Tr. N.S. 599
  • R v. Cuffey (1848) 7 State Tr. N.S. 467, 12 JP 648
  • R v. Meany (1867) 10 Cox CC 506, IR 1 CL 500
  • Mulcahy v. R (1868) LR 3 HL 306
  • R v. Davitt (1870) 11 Cox CC 676
  • R v. Deasy (1883) 15 Cox CC 334

The last reported case under the Act in the United Kingdom was in 1883, although the Act was used in Australia in 1916 to prosecute the "Sydney Twelve".

In 1972 three Irish republicans Joseph Callinan, Louis Marcantonio and Thomas Quinn were initially charged with treason felony, although this was later dropped in favour of lesser charges of seditious utterances.[13]

Parliamentary debates

See also

References
  • Halsbury's Laws of England, 4th Edition, 2006 reissue, Volume 11(1), Paragraph 367
  1. This short title was conferred by the Short Titles Act 1896, section 1 and the first schedule.
  2. Section 6.
  3. The Treason Felony Act 1848, section 3; the Criminal Law Act 1967, section 1
  4. The Treason Felony Act 1848, section 3; the Penal Servitude Act 1857, section 2; the Criminal Justice Act 1948, section 1(1); the Criminal Justice Act (Northern Ireland) 1953, section 1(1); the Criminal Procedure (Scotland) Act 1975, section 221(1)
  5. The Magistrates' Courts Order (Northern Ireland) 1981 (No.1675 (N.I.26)), article 38
  6. The Scotland Act 1998 (c.46), section 29(1) and (2)(b) and paragraph 10 of Part I of Schedule 5
  7. Text of the Treason Felony Act 1848 as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk.
  8. Transportation to Australia 1787-1868. National Archives.
  9. Judgments - Regina v Her Majesty's Attorney General (Appellant) ex parte Rusbridger and another (Respondents). House of Lords. 26 June 2003
  10. R. (Rusbridger) v. Attorney General [2003] UKHL 38; [2004] AC 357; [2003] 3 All ER 784
  11. Press Association (13 December 2013). "Monarchy law repealed 165 years on". Lancashire Telegraph. Retrieved 15 April 2016.
  12. Bowcott, Owen (13 December 2013). "Calling for abolition of monarchy is still illegal, UK justice ministry admits". The Guardian. Retrieved 13 December 2013.
  13. Moloney, Mark (21 January 2015). "When did free speech become a British 'value'?". An Phoblacht. Retrieved 13 June 2019.
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