|Volume 52 Number 13, June 4, 2022||ARCHIVE||HOME||JBCENTRE||SUBSCRIBE|
Parts of the Treason Felony Act 1848 are still on the statute book. It is a law providing heinous punishment for, and defining, treason felony against the Queen and the Crown. 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. Treason felony is a reserved matter on which the Scottish Parliament cannot legislate. 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.
Section 3 of the Act states :
Offences declared felonies by this Act to be punishable by transportation or imprisonment.
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 . . . . . . [F1] or by any overt act or deed, every person so offending shall be guilty of felony, and being convicted thereof shall be liable . . . . . . [F2] to be transported beyond the seas for the term or his or her natural life . . . . . . [F2]
F1: Words repealed by Statute Law Revision Act 1891 (c. 67)
F2: Words repealed by Statute Law Revision Act 1892 (c. 19)
Modifications etc. (not altering text):
C1: Reference to transportation for life to be construed as reference to imprisonment for life or any shorter term: Penal Servitude Act 1857 (c. 3), s. 2, (E.W.) Criminal Justice Act 1948 (c. 58), s. 1(2) and (S.) Criminal Procedure (Scotland) Act 1975 (c. 21), s. 22(1)(2)
Section 6 states:
Nothing herein to affect provisions of 25 Edw. 3. c. 2. Provided always, that nothing herein contained shall lessen the force of or in any manner affect any thing enacted by the [M1]Treason Act 1351.
M1: 1351 c. 2.
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". 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 judgment, the Lords agreed that the litigation was unnecessary; but the judges nevertheless agreed with Lord Steyn's view that: "[T]he 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." Maybe when the government of today is discussing the repeal of the Human Rights Act, and bringing in a "Bill of Rights" which is completely at odds with a modern conception of rights, and with a Queen's Speech referring to changing the balance between the legislature and the courts, the survival of section 3 is not so "unreal".
In the House of Lords, in the course of discussing this appeal, it was said in relation to its background: "The 1848 Act was passed to meet a perceived threat, particularly in Ireland, in the heated atmosphere of that year."  As Wikipedia says of this time: "The primary causes for these revolutions [of 1848] stemmed from dissatisfaction with the monarchies which were at the helm of each country. The citizens were tired of feeling oppressed and controlled, and there was a widespread demand for democracy, versus a monarchy."
In relation to the fight for Irish freedom, it should be noted that in 1972 three Irish republicans Joseph Callinan, Louis Marcantonio and Thomas Quinn were initially arrested and charged with "treason felony" for speaking out against the British military presence in Ireland following Bloody Sunday. Although this charge was later dropped in favour of lesser charges of "seditious utterances" for making "inflammatory comments", the men had already spent 18 months in prison on remand before eventually being hauled before the courts at the Old Bailey in 1973.