A distinguished Ontario litigator I know has made it a personal rule never to cite a case that was reported before the year he was called to the bar.
The British Foreign Secretary Phillip Hammond might want to enquire whether any of the lawyers he likes to retain harbour any such sentiments. Last week Mr Hammond appeared to entertain the thought of laying charges of treason against Britons who go to fight in Syria and Iraq.
The law of treason dates back to an English statute of 1351.
Guy Fawkes and his co-conspirators in the gun powder plot were convicted of it in 1605. They were hung drawn and quartered.
The last person prosecuted for treason in the U.K. was Lord Haw Haw in 1946 for his Nazi propaganda broadcasts. He got off rather more lightly. He was merely hanged.
Cabinet ministers discussed prosecuting IRA bombers for treason in the 1960’s. There were calls for treason charges following the London bombings in 2005. There were no prosecutions in either case.
Among the discussions now circulating on how to deal with British jihadists, there appear to be 3 main reasons why the existing treason law must not be resorted to.
One is the political fear that treason prosecutions will create martyrs, particularly if the death penalty were re-introduced for it, as some are demanding. A second is that the archaic language and medieval constructs in the 14th Century statute (which addresses harm to the king, his wife and eldest son and daughter, but not other members of the royal household) make it impossible to interpret in the 21 st Century. Third, the statute would have to be interpreted in conformity with the 1998 Human Rights Act.
The consensus seems to be that a new law is needed. Not surprising. Not easy either.