Treasonable or Reasonable?

Treasonable or Reasonable?

Treasonable or Reasonable?

Commentary

4 min read

Treason, normally confined to 5th November, has been placed on the agenda following a paper from the think-tank Policy Exchange. The paper presents the benefits that will come from updating the 1351 Treason Act, from tackling malevolent Russian interference to prosecuting ISIS returnees.

Treason is emotive. Images of defending Britain, the Queen and her subjects appeal to the voters Tories will want to win over in the next election. But despite patriotic PR, what would an update to treason law actually achieve? As Lord Judge, former chief justice, said at the launch of the report ‘what is not criminal now that should be’?

Many point to inadequate sentences under the Terrorism Act 2000. Their argument being that like hate crime offences, betrayal of one’s country could aggravate other offences leading to harsher punishments. This will ring true as convicted terrorist sympathisers like Anjem Choudary come to the end of their sentences.

There is nothing to stop Parliament increasing the length of sentences for those convicted of terrorism offences. But longer sentences pose a challenge. Prisons can act as lightning rods for radicalisation – adding years to a sentence doesn’t necessarily stop the threat of convicted terrorists, it just presses pause. More effective deradicalisation programmes, which the Government already has available, should be a priority.

What isn’t clear is why betrayal deserves to be an aggravated offence? Britain cooperates so extensively on counter-terror policing because offences are grave no matter who commits them. They shouldn’t be more serious because they are committed by a UK citizen. It is why UK terrorism legislation allows courts to prosecute those that threaten allies, and to support the “international community in the global fight against terrorism”.

Betrayal doesn’t have a tight, legally durable definition. Criminal barristers hate broad definitions. It’s one reason why so few people have been prosecuted for inciting religious hatred. Vague concepts are more likely to lead to acquittals than prosecutions. What amounts to betrayal? Are the SNP or Plaid Cymru betraying the Union’s interests? What about the suggestion from a Tory MEP of extreme EU loyalty?

Secondly, a new offence doesn’t solve the fundamental problem behind prosecuting foreign fighters – a lack of admissible evidence. Battlefield evidence is inconsistent and lacks confirmation. If courts are unable to prove involvement in terrorism abroad already, it seems impossible to prove an additional aggravated offence. An alternative could be requiring admissions of guilt or evidence of others wrongdoing as a condition of return. But this can easily be argued to come under duress, or solely to reach safety.

Finally, there’s the idea of cohesion. There is a seemingly progressive argument that treason incentivises trying foreign fighters in UK courts and returning them to society, a recognition that individuals are British and belong. It’s a bulwark against ad-hoc removal of citizenship that applies only (in theory) to dual nationals rather than all citizens.

This could quickly become a badge of honour for individuals, such as those who travelled to join ISIS’s so-called caliphate, who already don’t recognise the legitimacy and sovereignty of the British state.

Instead, the UK should proscribe organisations faster. As soon as an organisation is proscribed, it makes it a criminal offence to support it in any way. On average when the UN or the United States has listed an organisation first, it’s taken 48 months for the UK to follow suit.

Another better option would be to graduate the offences under proscription depending on the type of organisation or support. Parliament could suggest it is a worse offence to support ISIS directly, than to support al-Muhajiroun who are proscribed for their support for ISIS.  

There are more effective ways to build trust and instil a sense of belonging. The forthcoming Prevent review is one way to do that. Greater transparency in decision making on terrorist cases, and the evidence behind radicalisation and deradicalisation will be a start. We can also do this with proscription; the law lays out criteria. The government should tick them off – publicly.

As Sajid Javid said in his last major intervention as Home Secretary, fighting the extremist tide that seeks to undermine and fracture society requires a stronger sense of togetherness, “fewer labels that divide, and more overlapping layers that draw us together.” The Building a Stronger Britain Together programme is designed to do just that, to foster but not force a modern sense of national identity.   

Fundamentally, we shouldn’t implement a new law when we don’t know what it is for. ISIS returnees are not just a UK problem, governments throughout the world are facing the same challenge. We’d be better served by taking responsibility for home grown terrorists, respecting the rule of law and acknowledging the state’s duty to punish and rehabilitate. We shouldn’t use a parochial response to a global challenge.

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