Lord-'Haw-Haw'-3

This sheet copy is only meant to give you an impression of this historical episode

13.10.45 SLB1 not on telephone conversation with SIS re an authoritive ruling about being seen by Americans (505a)

AOB: in my perception:- all this being not legal, but British Secret Services didn't dare much about true legal aspects!

?.11.45 From H.M. Prison, Wandsworth, - grant for Joyce to take his case to House of Lords. (515a)

The next legal arguments, are (were?) the consequences of being a British subject; which, maybe, is originating from the "Dark Middle Ages" that British Subjects actually being owned by (in the possession of) the King or Queen. It once, was my very good friend Dr. Phil Judkins whom brought this curious aspect to my mind. Thus: please, consequently, bear in mind - that this latter aspect of British subjects (humans, male or female) that de facto they being owned by the British King or Queen; apparently there does (did) not (hardly) exist an escape! You may now better understand the many rather curious legal arguments being put forward next - in Case: Rex versus William Joyce.

The following pages are providing a quite unique chance to discover, for yourself, what British Law constitutes (constituted). We should be aware - that the Anglo-Saxon legal way of operating differs quite much from the continental European way of legal commitments; which is, partially, influenced (initiated) by French legal ways of thinking (operating); since Napoleon, in particular.

Lord Chancellor On 7th November 1945, the Court of criminal Appeal dismissed the appeal of the Appellant William Joyce, who had on the 19th September, 1945 been convicted of high treason at the Central Criminal Court and duly sentenced to death. The Attorney-General certified under Section I (6) the Criminal Appeal Act, 1907m the the decision of the Court of Criminal Appeal involved a point of law of exceptional public importance and that in his opinion it was desirable in the public interest that a further appeal should be brought.

Hence this appeal is brought to your Lordships House. And, though in accordance with the usual practice the certificate of the Attorney-General does not specify the point of law raised in the appeal, it is clear that the question for your Lordships determination is whether an alien who has been resident within the realm can be held guilty and convicted in this country for high treason in respect of acts committed by him outside the realm. This is in truth a question of law of far reaching importance.

The Appellant was charged at the Central Criminal Court on three counts, upon the third of which only he convicted. That count was as follows:"

"High Treason by adhering to the King's enemies elsewhere than in the King's realm to wit, in the German Realm, contrary to the Treason Act (of the year) 1351.

"William Joyce, on the 18th of September, 1939, and on divers other days, thereafter and between that day and the 2nd day of July 1940, being then-to wit (waggishness) on the several days- a person owing allegiance to our Lord the King, and whilst on the said days an open and public war was being prosecuted and carried on by the German Realm and its subjects against our Lord the King and his subjects (implying every British citizen) against, then and on the said several days traitorously convicting and intending to aid and assist the said enemies of our Lord the King against our Lord the King and his subjects did traitorously adhere to and aid and comfort the said enemies in parts beyond the sears without the Realm (Empire) of England, to wit, in Realm of Germany by broadcasting to the subjects (citizens) of our Lord the King."

The first and second counts, upon which the Appellant was found not guilty, were based upon the assumption that he was at all material times a British subject. This assumption was to be incorrect; therefore upon counts the Appellant was rightly acquitted.

The material facts are few. The Appellant was born in the U.S.A. in 1906, the son of a naturalised American citizen who had previously been a British subject (citizen) by birth. he thereby became →

himself a natural born American citizen. About three years of age he was brought to Ireland where he stayed until about 1921, when he came to England. He stayed in England until 1939. He was then 33 years of age. He was brought up and educated within the King's Dominions and he settled here.

On the 4th July, 1933, he applied for a British passport, describing himself as a British subject by birth born in Galway. He asked for the passport for the purpose of holiday touring in Belgium, France, Germany, Switzerland, Italy and Austria. He was granted the passport for the period of 5 years. The document was not produced, but its contents were duly proved. In it he was described as a British subject. On the 26th September, 1938, he applied for a renewal of the passport for a period of one year. (AOB, thus he left Britain on 26th August 1939 legally, with his latter named passport) He again declared that he was a British subject and had not lost that national status. (yet) His application was granted. On 24th August 1939, he again applied for a renewal of his passport for a further period of one year, repeating the same declaration. His application was granted, the passport, as appears from the endorsement (authorisation) on the declaration being extended to the 1st July 1940.

On some day after the 24th (26th) 1939, the Appellant left (with his wife Margaret) the realm. The exact date of this departure was not proved. Upon his arrest in the year 1945 there was found upon his person a "work book" issued by the German State on the 4th October, 1939, from which it appeared that he had been employed by the German Radio Company (R.R.G.) in Berlin, as an announcer of English news from the 18th September 1939. In this document his nationality was stated to be "Great Britain" and his special qualification "English". It was proved to the satisfaction of the jury that he had at the dates alleged in the indictment broadcast propaganda on behalf of the enemy. He was found guilty accordingly.

From this verdict an appeal was brought to the Court of Criminal Appeal, and I think it right to set out the grounds of that appeal. They were as follows:

"I. The Court wrongly assumed jurisdiction to try an alien for an offence against British Law committed in a foreign country.

"2. The learned Judge was wrong in law in holding and misdirected the jury in directing them that the Applicant owed allegiance to His Majesty the King during the period from 18th September, 1939, to 2nd July, 1940.

"3. There was no evidence that the renewal of the Applicant's passport afforded him or was capable of affording him any protection or that the Applicant ever availed himself or had any intention of availing himself of any such protection.

"4. If (contrary to the Applicants contention (disagreement)) there were any such evidence, the issue was one for the jury and the learned Judge failed to direct them thereon".

The Court of Criminal Appeal, as I have already said, dismissed the appeal and it will be convenient if I deal with the grounds of appeal in the same order as did the Court, first considering the important question of law raised in the second ground.

The House is called upon in the rear 1945 to consider the scope and effect of a Statue of the year 1351 the 25th year of the resign of Edward III. The Statute, as of the year 1351, the 25th year of the reign of Edward III. That Statute, as has been commonly said and as appears from its term, was itself declaratory of the common law:

its language differs little from the statement in Bracton (see 2 Bracton 258, Stephen's History of the Criminal Law Vol. II 243). It is proper to set out the material parts. Thus it runs:

"Whereas divers opinions have been before this time in what case Treason shall be said and in what not, the King at the request in the Lords and the Commons hath made a declaration in the manner as hereafter followeth: that is to say (amongst other things) "if a man do levy war against our Lord the King in his realm or be adherent to the King's enemies in his realm, giving them aid and comfort in the realm or elsewhere".

then (I depart from the text and use modern terms) he shall be guilty of treason.

It is not denied that the Applicant has adhered to the King's enemies, giving them aid and comfort elsewhere than in the realm (Kingdom). Upon this part of the case the single question is whether having done so, he can be, and in the circumstances of the case is, guilty of treason (disloyalty).

Your Lordship will observe that the statute is wide enough in its terms to cover any man anywhere. "if a man do levy (duty) war, "etc. yet it is clear that some limitation must be placed upon the generality of the language, for the context in the preamble poses the question" in what case treason shall be said and in what not." It is necessary then to prove not only that an act was done but that, being done, it was a treasonable act. This must depend upon one thing only, namely the relation in which the actor stands to the King to whose enemies he adheres. An act that is in one man treasonable, may not be so in another.

In the long discussion which our Lordship have heard upon the part of the case attention has necessarily been concentrated on the question of allegiance (commitment). The question whether a man can be guilty of treason to the King has been treated as identical with the question whether he owes allegiance to the King. An act, it is said, which is treasonable if the owes allegiance, is not treasonable if he does not. As a generalisation, this is undoubtedly true and is supported by the language of the indictment, but it it leaves undecided the question by whom allegiance is owed, and I shall ask your Lordship to look somewhat more deeply into the principle upon which this statements is founded for it by the application of principle to changing circumstances that our law has developed. It is not for His Majesty's Judges to create new offences or to extend and penal law, and particularly the law of high treason, but new conditions may demand a reconsideration of the scope of the principle. It is not an extension of a penal law to apply its principle to circumstances unforeseen at the time of its enactment, so long as the case is fairly brought within its language.

I have said, my Lords, that the question for consideration is bound up with the question of allegiance. Allegiance is owed to Their Sovereign Lord the King by his natural born subjects: so it is by those who, being aliens, reside within the Kings realm. Whether you look to the feudal law for the origin of this conception or find it in the elementary necessities of any political society, it is clear that fundamentally it recognises the need of the man for protection and of the Sovereign Lord for service. "Protectio trah-it subjection et subjectio protectiomen". All who were brought within the King's protection were ad fidem regis: all owed him allegiance. The topic is discussed with learning in Calvin's Case (year of) 1608, 7 Co. Rep. Ia.

"The natural born subject woes allegiance from his birth, the naturalised subject from his naturalisation, the alien from the day→

when he comes within the realm. By what means and when can they cast off allegiance? The natural born subject cannot at common law at any time cast if off. "Nemo potest exure patrium" is a fundamental maxim of the law from which relief was given only by recent statutes. Nor can the naturalised subjects at common law. It is in regard to the alien resident within the realm that the controversy in this case arises. Admittedly he owes allegiance while he is so resident, but it is argued that his allegiance extends no further.

Numerous authorities were cited by the learned counsel for the Appellant in which it is stated without any qualification or extension that an alien owes allegiance so long as he is within the realm, and it has been argued with great force that the physical presence of the alien actor within the realm is necessary to make his act treasonable. It is implicit in this argument that during absence from the realm, however brief, an alien ordinarily resident within the realm cannot commit treason; he cannot under any circumstances by giving aid and comfort to the King's enemies outside the realm be guilty of a treasonable act.

My Lords, in my opinion this, which is the necessary and logical statement of the Applicant's case, is not only at variance with the principle of law, but is inconsistent with authority which your Lordship cannot disregard.

I refer first to authority. It is said in Forster's Crow Cases (3rd Edition) p. 183-"Logical allegiance is founded in the protection a foreign enjoyeth for his person his family or effects during his residence here; and it ceaseth whenever he withdraweth with his family and effects." And then on p. 185 comes the statement of law upon which the passage I have cited is clearly founded "Sect.4. And if such alien, seeking protection of the Crown, and having a family and effects here, should during war with his native country, go thither (there?), and there adhere to the King's enemies for purposes of hostilities, he might be dealt with as a traitor. For he came and settled here under the protection of the Crown; and, though his person was removed for a time his effects and family continued still under the same protection. This rule was laid down by all judges assembled at the Queen's command Jan. 12th 1707."

The author has a side note against the last line of the passage "MSS. Tracey, Price, Dod and Denton." These manuscripts have not been traced, but their authenticity is not questioned. It is indeed impossible to suppose that Sir Michael Foster could have incorporated such a statement except upon the surest grounds, and it is to be noted that he accepts equally the fact of the judges' resolution and the validity of its content. This statement has been repeated without challenge by numerous authors of the highest authority-e.g. Hawkins, Pleas of the Crown 1995 Ed.: East, Pleas of the Crown Vol. I p.52; Chitty on the Prerogatives of the Crown pp.12, 13. It may be said that the language of some of the writers is not that of enthusiastic support, but neither in the text books written by the great masters of this branch of the law nor in any judicial utterance (note) has the statement been challenged. Moreover it has been repeated without any criticism in our times by Sir William Holdsworth, whose authority on such a matter is unequalled: see his article in Halsbury's Laws of England (2nd Ed.) Vol. VI, p. 146, Note (t) Sub-title "Constitutional Law."

Your Lordships can give no weight to the fact that in such cases as Johnstone versus Pedlar [1921] 2 A.C. 262, the local allegiance of an alien without qualification to be coterminous (coextensive) with his residence within the realm. The qualification that we are now discussing was not relevant to the issue nor brought to the mind? of the Court. Nor was the Judges' resolution referred to nor the meaning of "residence"discussed.

In my view therefore it is the law that in the case supposed in the Resolution of 1707 an alien may be guilty of treason for an act committed outside the realm. The treason which appears in the Resolution is illuminating. The principle governing the rule is established by the exception: "though his person was removed for a time his family and effects continued under the same protection," that is, the protection of the Crown. The vicarious (displaced) protection still afforded to the family, which he had left behind in the country, required of him a continuance of his fidelity. It is thus not true to say that an alien can never in law be guilty of treason to the sovereign of this realm in respect of an act committed outside the realm.

My Lords, here no question arises of a vicarious protection. There is no evidence that Appellant left a family or effects behind him when he left this realm. I do not for this purpose regard parents or brothers or sisters as a family. But though there was no continuing protection for his family or effects, of him too it must be asked, whether there was not such protection still afforded by the sovereign as to require of him the continuance if his allegiance. The principle which runs through feudal law and what I may perhaps call constitutional law requires on the one hand protection, on the other fidelity: a duty of the sovereign lord to protect, a duty of the liege or subject to be faithful. Treason, "trahison", is the betrayal of a trust: to be faithful to the trust is the counterpart of the duty to protect.

It serves ti illustrate the principle which I have stated that an open enemy who is an alien, notwithstanding his presence in the realm, is not within the protection nor therefore within the allegiance of the Crown. He does not owe allegiance because although he is within the realm he is not under the sovereign protection.

The question then is how is this principle to be applied to the circumstances of the present case.

My Lords, I have already stated the material facts in regard to the Applicants residence in this country, his applications for a passport and the grant of such passport to him, and I need not restate them.

I do not think it necessary in this case to determine what for the purpose of the doctrine whether stated with or without qualification constitutes for an alien "residence" within the realm. It would, I think, be strangely inconsistent with the robust and vigorous commonsense of the of the common law to suppose that an alien quitting his residence in this country and temporarily on the high seas beyond territorial waters, or at some even distant spot now brought within speedy reach, and there adhering and giving aid to the King's enemies, could do so with impunity. In the present case the Appellant had long resided here and appears to have had many ties with this country, but I make no assumption one way or another about his intention to return and I do not attach many importance to the fact that the original passport application and, therefore, presumably the renewals also, were for "holiday touring".

The material facts are these, that being for long resident here and owing allegiance he applied for and obtained a passport and leaving the realm, adhered to the King's enemies. It does not matter that he made false representations as to his status, asserting that he was a British subject by birth, a statement that he was afterwards at pains to disprove. It may be that when he first made the statement he thought it was true. Of this there is no evidence. The essential fact is that he got the passport, and I now examine its effect.

The actual passport issued to the Appellant has not been produced, but its contents have been duly proved. The terms of a passport are familiar. It is thus described by Lord →

"It is document issued in the name of the Sovereign on the responsibility of a Minister of the Crown to a named individual, intended to be presented to the Governments of foreign nations and to be used for that individual protection as a British subject in foreign countries." By its term it requests and requires in the name of His Majesty all those whom it may concern to allow the bearer every assistance and protection of which he may stand in need. It is, I think, true that the possession of a passport by a British subject does not increase the Sovereign duty of protection, though it will make his path easier. For him it serves as a voucher and means of identification. But the possession of a passport by one who is not a British subject gives him rights and imposes upon the Sovereign obligations which would otherwise not to be given or imposes. It is immaterial that he has obtained it by misrepresentation and that he is not in law a British subject. By the possession and that document he is enabled to obtain in a foreign country protection extended to British subjects. By his own act he has maintained the bond which while he was within the realm bound him to his Sovereign. The question is not whether he obtained British citizenship by obtaining the passport, but whether by its receipt the extended his duty of allegiance beyond the moment when he left the shores of this country. As one owing allegiance to the King he sought and obtained the protection of the King for himself while abroad.

Your Lordships were pressed by counsel for the Appellant with a distinction between the protection of the law and the protection of the Sovereign, and he cited many passages from the books in which the protection of the law was referred to as the counterpart of the duty of allegiance. Upon this he based the argument that, since the protection of the law could not be given outside the realm to an alien, he could not outside the realm owe and duty. This argument in my opinion has no substance. In the first place reference is made as often to the protection of the Crown or Sovereign or Lord or Government as to the protection of the law, sometimes also the protection of the Crown and the law. In the second place it is historically false to suppose that in olden days the alien within the realm looked to the law for protection except in so far as it was part of the law that the King could by the exercise of his prerogative (privilege) protect him. It was to the King that the alien looked, and to his dispensing power under the prerogative. It is not necessary to trace the gradual process by which the civic rights and duties of a resident alien became assimilated to those of the natural born subject they have in fact been assimilated, but to this day there will be found some difference. It is sufficient to say that at the time when the common law established between Sovereign Lord and resident alien the reciprocal duties of protection and allegiance it was to the personal power of the Sovereign rather than to the law of England that the alien looked. It is not therefore, an answer to the Sovereign's claim to fidelity from an alien without the Realm who holds a British passport that there cannot be extended to him the protection of the law.

What is this protection upon which the claim to fidelity (loyalty) is founded? To me, my Lords, it appears that the Crown is issuing a passport is assuming an onerous burden, and the holder of the passport is acquiring substantial privileges. A well known writer on international law has said (see Oppenheim 5th Ed, vol. I p.546) that "by a universally recognised customary rule of the law of "nations very State holds the tight of protection over its citizens "abroad". This rule thus recognised may be asserted by the holder of a passport which is for him the outward title of his rights. It is true that the measure in which the State will exercise its rights lies in →

its discretion. But with the issue of the passport the first step is taken. Armed with that document the holder may demand from the State's representatives abroad and from the officials of foreign Governments that he be treated as a British subject, and even in the territory of a hostile State may claim the intervention of the protecting Power. I should make it clear that it is no part of the case for the Crown that the Applicant is debarred from alleging that he is not a British subject. The connection is a different one: it is that by the holding passport he asserts and maintains the relation in which he formerly stood, claiming the continued protection of the Crown and thereby pledging the continuance of his fidelity.

In these circumstances I am clearly of opinion that so long as he holds the passport he is within the meaning of the Statue a man who, if he is adherent to the King's enemies in the realm or elsewhere commits an act of treason.

There is another aspect of this part of the case with which I must deal. It is said that there is nothing to prevent an alien from withdrawing from his allegiance when he leaves the realm. I do not dissent (disagree) from this as a general proposition. It is possible that he may do so even though he has obtained a passport. But that is a hypothetical case. here there is no suggestion that the Appellant had surrendered his passport or taking any other overt (obvious) step to withdraw from his allegiance, unless indeed reliance is placed on the act of treason itself as a withdrawal. That in my opinion he cannot do. For such an act is not inconsistent with his still availing himself of the passport in other countries than Germany and possibly even in Germany itself. It is not to be assumed that the British authorities could immediately advise their representatives abroad or other Foreign Governments that the Appellant though the holder of a British passport was not entitled to the protection that it appeared to afford. Moreover, the special value to the enemy of the Applicants services as a broadcaster was that he could be represented as speaking as a British subject, and his German work book (Arbeitsbuch) showed that it was in the character that he was employed, for which his passport was doubtless accepted as the voucher.

The second point of appeal (the first in formal order) was that in any case no English Court has jurisdiction to try an alien for a crime committed abroad, and your Lordships heard an exhaustive argument upon the construction of penal statutes. There is, I think, a short answer to this point. The Statue in question deals with the crime of treason committed within or, as was held in R. v. Casement [1917] I K.B. 98, without the realm; it is general in its terms and I see no reason for limiting its scope except in the way that I indicated earlier in this opinion, viz. that, since it is declaratory (asserting) of the crime of treason, it can apply only to those are capable of committing that crime. No principle of comity demands that a State should ignore the crime of treason committed against it outside its territory. On the contrary a proper regard for its own security requires that all those who commit that crime, whether they commit it within or without the realm, should be amenable to its law. I share to the full the difficulty experienced by the Court of Criminal Appeal in understanding the ground upon which this submission is based, so soon as it has been held that an alien can commit, and that the Appellant did commit, a treasonable act outside the realm. I concur in the conclusion and reason of that Court upon this point.

Finally (and these are the 3rd and 4th grounds of appeal to the Court of Criminal Appeal) it was urged on behalf of the Appellant that there was no evidence that the renewal of his passport afforded him or was capable of affording him any protection or that he ever availed himself or had any intention of a availing himself of any such →

protection, and if there was any such evidence the issue was one for the jury and the learned Judge failed to direct them thereon.

Upon these points too, which, which are eminently matters for the Court of Criminal Appeal, I agree with the observation of that Court. The document speaks for itself. It was capable of affording the Appellant protection. He applied for it and obtained it, and it was available for his use. Before this House the argument took a slightly different turn. For it was urged that there was no direct evidence that the passport at any material time remained in the physical possession of the Appellant (?) and that upon this matter the jury had not been properly directed by the learned Judge in that he assumed to determine as a matter of law question of fact which it was for them to determine. This point does not. in this form at least, appear to have been taken before the Court of Appeal and your Lordship have not the advantage of knowing the views of the experienced Judges of that Court upon it. Nor, though the importance of keeping separate the several functions of judge and jury in a criminal trial is unquestionable, can I think that this is a question with which your Lordships would have had to deal in this case, if no other issue had been involved. For it is clear that there no question of principle is involved. The narrow point appears to be whether in the course of this protracted and undeniably difficult case the learned Judge removed from the jury and himself decided a question of fact which it was for them to decide. This is a matter which can only be determined by a close scrutiny of the whole of the proceedings.

My Lords, this is a task which in the circumstances of this case your Lordships have thought to undertake. I do not propose to examine in detail the course of the trial and the summing up of the learned Judge, though I may perhaps be permitted to say that it was distinguished by conspicuous care and ability on his part. But having read the whole of the proceedings I have come to the clear conclusion that the learned Judge's summing up is not open to the charge of misdirection. It may well be that there are passages in which are open for criticism. But the summing up must be viewed as a whole and upon this view of it I am satisfied that the jury cannot have failed to appreciate and did appreciate that it was for them to consider whether the passport remained at all material times in the possession of the Appellant. Upon this question no evidence could be given to the Crown, and for obvious reasons no evidence was given by the Appellant. It has not been suggested that the inference could not fairly be drawn from the proved facts in the jury thought fit to draw it, and I think that they understood this and did draw the interference when they returned the general verdict of "Guilty."

I am asked by my noble and learned friend Lord Simonds to say that the concurs in the Opinion which I have just read.

I have had the advantage of reading in print the Opinion which just had been delivered by the Lord Chancellor. I am in entire agreement with it.

I also have had the same advantage. I fully agree with, and concur in, the Opinion which has just been delivered by the Lord Chancellor.

I have already stated that I agree with your Lordships in thinking that the renewal of William Joyce's passport, obtained on the 24th August 1939, was evidence from which a jury might have interfered that he retained that document for use on and after the 18th September 1939, when he was proved first to have adhered to the enemy, and therefore I can deal with this part of his appeal very shortly.

It is undisputed law that a British subject always, and an alien whilst resident in this country, owe allegiance to the British crown and therefore can be guilty of treason.

The question, however, remains whether an alien who has been resident here, but leaves this country, can, whilst abroad, commit an act of treason.

The allegiance which he owes whilst resident in this country is recognised in authoritative text books and the relevant cases to be owed because, as Hale (Pleas of the Crown I, p.58) says, "the subject hath his protection from the King and his laws."

If then he has protection he owes allegiance, but the quality of protection required has still to be determined. On behalf of the Appellant it was strenuously contented that unless the alien was enjoying the protection of British law he owed no allegiance. My Lords, I think that this is to narrow the obligation too much. Historically the protection of the Crown through its dispensing power was afforded to the alien in this country earlier than the legal protection which came later.

Therefore any protection, whether legal or administrative, would in my view be enough to require a corresponding duty of allegiance.

It was said in the second place, however, that in no case could an alien, however, long he had been resident here, commit an act of treason whilst he was abroad.

It is in contradiction of the resolution of the Judges in (the year) 1707, whereby it was declared that if an alien who has been resident here goes abroad himself but leaves his family and effects here under the same protection, the duty (i.e. of allegiance) still continues.

This resolution has been criticized as being merely the opinion of the judges in consultation with prosecuting counsel, and not given as a decision in any case. The criticism is true, but the resolution has been repeated in text book after text book of high authority, and though not authoritative as a legal decision, it still has the weight of its repetition by great lawyers and the fact that it is nowhere challenged.

Forster, Hale, East, Hawkins, Chitty and Bacon all set it out. Blackstone alone omits it, but Blackstone was given a general view of the Laws of England, and an omission to set out a particular extension of the general rule is not necessarily a denial of its existence.

Equally the fact that many cases also state only the general rule in cases where no more is required is not a denial of the existence of certain modifications or extensions of it.

It is true that even in the case with which the resolution deals the alien, though absent himself, is vicariously protected by the laws of this country in the person of his family and effects, but it is still no more than protection.

Does then the possession of a passport afford any such protection as that contemplated by the rule? I think it does. Even after war is declared, some protection could be afforded to holders of British passports through the protecting power, and again it would be useful and afford protection in neutral countries.

"It will be well to consider what a passport really is," says Alverstone L.C.J. in Rex versus Brailsford [1905] 2 K.B. 730. "It is a document issued in the name of the sovereign on the responsibility of a Minister of the Crown to a named individual, intended to be presented to the governments of foreign nations and to be used for that individual's protection as a British subject in foreign countries," and the late Sir William Malkin in Vol. 49 of the Law Quarterly Review, speaks of "The extensive though perhaps somewhat ill-defined branch of international law which may be called the diplomatic protection of citizen abroad."

It must be remembered that the matter to be determined is not whether the Appellant took upon himself a new allegiance (now on Adolf Hitler), but whether he continued an allegiance which he had owed for some 24 years, and a lesser amount of evidence may be required in the latter than in the former case. I cannot think that such a resident can in war time pass to and fro? from this country to a foreign jurisdiction and be permitted by our laws to adhere to the enemy there without being amenable to the law of treason. I agree with your Lordship also in thinking that if an alien is under British protection he occupies the same position when abroad as he would occupy if he were a British subject. Each of them owes allegiance, and in doing each is subject to the jurisdiction of the British Crown.

AOB: all the legal debates, do neglect (cover) an aspect which we should always bear in mind, as well: Would William Joyce haven't travelled abroad on 26th August 1939, he would nearly instantly have been arrested and been detained; not because he had already committed an act of treason to the Crown, but because of his political opinions (feelings) - though, all without being trialled. The only legal action already planned for, was on behalf of M.I.5 (S.B.), to apply, at H.O., for an according ('Order' xx) document.

"The law of nations," says Oppenheim, Vol. I. p.266 (5th Edn)," does not prevent a State from exercising jurisdiction, within "its own territory, over its subject travelling or residing abroad, "since they remain under its personal supremacy." Moreover, in Rex versus Casement [1917], I K.B. 98, the point was directly decided in the case of a British subject who committed the act of adhering to the King's enemies abroad, and the decision was not seriously controverted before your Lordships.

But, my Lords, though the renewing of a passport might in a proper case lead to the conclusion that the possessor, though absent from the country, continued to owe allegiance to the British Crown, yet in my view the question whether that duty was still in existence depends upon the circumstances of the individual case, as I understand him, the learned Judge ruled that in law the duty of allegiance continued until the protection given by the passport came to an end-i.e. in a year's time -or at any rate until after the first act of adhering to the enemy, which I take to be the date of the Appellant's employment as broadcaster by the German State on the 18th September, 1939. (AOB, William Joyce did actually applied for attaining German citizenship on 5 September 1939)

The Court of Criminal Appeal take, I think, the same view, but since your Lordships, as I understand, think otherwise, I must set out the facts as I see them. The Appellant admittedly an American subject, but resident within the realm for some twenty-four years, applied for and obtained a passport, as a British subject, in 1933 (AOB: which actually never materialised). This document continued to be effective for 5 years, and was renewed in 1938 and again on the 24th August, 1939) Extensions →

are normally granted for one year, and that given to the Appellant followed the normal course. It would I think, not be an unnatural interference that he used it in leaving England and entering Germany, but in fact nothing further was proved as to the Appellant's movements, save that his appointment as broadcaster by the German State, dated 18th September, 1939, was found in his (Arbeitsbuch) possession when he was captured, and that at any rate by December the tenth he had given his first broadcast. Nothing is known as to the passport after its issue, and it has not since been found.

My Lords, for the purpose of establishing what the learned judge's ruling was, I think it necessary to quote his own words to the representatives of the Crown and of the prisoner before they addressed the jury. They are as follows: "I shall direct the jury "on count 3" (the only material count) "that on the 24th of August 1939, when the passport was applied for, the prisoner beyond the shadow of doubt owed allegiance to the Crown of this country and that on the evidence given, if they accept it, nothing happened at the material time thereafter to put an end to the allegiance that he then owed. It will remain for the jury, and for the jury alone, as to whether or not at the relevant dates he adhered to the King's enemies with intent to assist the King's enemies. If both or either of you desire to address the jury on that issue, of course, now is your opportunity."

After that ruling both counsel proceeded to address the jury, the defence submitting that the Appellant had not adhered to the King's enemies, the Attorney-General that he had. No other topic was touched upon by either of them, and in particular no argument was addressed to the question whether the Appellant still had the passport in his possession and retained it for use or as to whether he still owed allegiance to the British Crown.

After the Counsel's address to the jury the learned Judge summed up, and again I think I must quote some passages from his observations.

One such is: "Under that count" (i.e. Count 3) "there are two matters which have got to be established by the prosecution .. beyond all reasonable doubt ... The first thing that the prosecution have to establish is that at the material time the prisoner, William Joyce, was a person owing allegiance to our Lord the King. Now, [in] my view, I have already intimated ... as a matter of law is, if you as a jury accept the facts which have been proved in this case beyond contradiction-of course you are entitled to disbelieve anything if you wish-if you accept the facts which have been proved and not denied in this case, then at the time in question, as a matter of law, this man William Joyce did owe allegiance to our Lord the King, notwithstanding the fact that he was not a British subject at the material time. Now members of the jury, although that is a matter for me entirely and not for you, I think it will be convenient if I explain quite shortly the reason by which I have arrived at that view, partly for your assistance, explanation, and perhaps for consideration hereafter in the event of this case possibly going to a higher court."

Again he said: "None the less I think it is the law that if a man who owes allegiance by having made his home here, having come to live here permanently, thereby acquiring allegiance, as he undoubtedly does, if he then steps out of the realm armed with the protection which is normally afforded to a British subject-improperly obtained, it may be, but none the less obtained ... using and availing himself of the protection of the Crown in an executive capacity which covers him while he is abroad, then in my view he has not thereby divested (denied) himself of the allegiance which he already owed.

Later he says: "So between the 24th August and the 18th September 1939, armed with a British passport, he had somehow entered Germany. Now, members of the jury, thereafter up until the 2nd July, 1940, when his passport ran out, he remained under such protection as that the passport could afford him during his stay in Europe." (AOB: a British citizen - an alien - in Germany would most likely becoming detained, as does a German alien in the U.K.)

Once again he says: "I do not think I am in any way extending the principles of the law in saying that a man who in this way adopts and uses the protection of the sovereign to whom he has already acquired an allegiance remain under that allegiance and is guilty of treason if he adheres to the King's enemies.

Members of the jury, I accordingly pass from that aspect of the matter; that is my responsibility. I may be wrong; if I am I can be corrected. My duty is to tell you what I believe to be the law on the subject and that you have to accept from me, provided I you believe those facts about the passport, going abroad and so forth. If you do not believe that, you are entitled to reject it and say so, because you are not bound to believe everything, but if you accept the uncontradicted evidence that has been given, then in my view that shows that this man at the material time owed allegiance to the British Crown.

Now if that is so, then the matter passes into your hands, and from now onwards I am dealing with matters which are your concern and your concern and your concern alone, with which I have got nothing to do; they are matters of facts, and the onus (obligation) of providing those facts is upon the prosecution from the first to last, and it never shift.

"Now what have they got to prove? They have got to prove that during this period, as I have already indicated this man adhered to the King's enemies without the realm, namely, in Germany."

The learned Judge then refers to a broadcast, of which there was uncontradicted evidence that it had been made before the 10th December, 1939, to the prisoner's engagements as a German broadcaster to Britain, and to the prisoner's statement, which was put in evidence by the Crown and from which I need only quote the words: "Realising, however, that at this critical juncture I had "declined to serve Britain, I drew the logical conclusion that I should have the moral right to return to that country of my own free will and that it would be best to apply for German citizenship and make my permanent home in Germany."

After reading the statement the learned Judge added "I think that it is the whole of the very short material upon which you have to come to the conclusion as to whether or not it has been proved to your satisfaction beyond all reasonable doubt that during the period in question this man adhered to the King's enemies, comforted and aided them with intent to assist them, and that he did so voluntary. Those are the matters which you have to consider."

My Lords, I have read and re-read the summing up as a whole and I think I have quoted all the material passages from it. Whether I pay regard to its general import or confine myself to the particular passages set out above, I cannot read the words of the learned Judge as doing other than ruling that in law the Appellant continued to owe allegiance to His Majesty on the 18th September, 1939, on the 10th of December, 1939, and indeed until the second July 1940, and leaving to the jury only the question whether during this period the Appellant adhered to the King's enemies.

The passage in the summing up containing the words "provided you believe those facts about the passport, going abroad and so forth" in my opinion merely instructed the jury that they had to be satisfied that the accused man did obtain renewal of his passport, did go abroad, and did make a statement, but that if →

they were so satisfied, then in law the prisoner continued to owe allegiance at all material times after he left the country. If it means more than this, I should regard it as a totally inadequate direction as to what must be proved in order to show that the allegiance continued after he left the country. But I do not think it does more than I have indicated.

As I have stated, the renewal of the passport on the 24th August, 1939, was, in my view, evidence from which a jury might infer the continuance of the duty of allegiance. What the prosecution have to show is that duty continued at least until the 18th of September (1939).

The learned Judge, as I see it, regards the renewal as proving conclusively that the duty continued until the passport ceased to be valid, unless some action on the part of the crown or the Appellant was proved which would put an end to the protection.

The Court of Criminal Appeal, in my opinion, took te same view. Their words are: "We have to look at the evidence in this case and upon evidence to decide whether the Trial Judge was right or wrong in holding as a matter of law that on the 18th September 1939, and between that date and the 2nd July, 1940, this Appellant did not owe allegiance to the King. (AOB: it was planned (by M.I.5 / S.B.) to put William Joyce directly under arrest after the war had been declared; they entered his place and found it deserted (abandoned)!) Now we agree with Mr. Justice Tucker that the proper was of approaching that question is to see whether anything had happened between the 24th August and the 18th September to divest (deprive) the Appellant of that duty of allegiance which he unquestionably owed at the earlier of those dates."

This ruling, as I see it, can only mean that the Appellant's duty of Allegiance remained in force until the 2nd of July, 1940, unless it was shown by him or on his behalf that something had occurred to put an end to that duty. It puts the onus on him to show some action terminating that obligation. (William Joyce, apparently applied for a German citizenship on 5th September 1939) The passport was never found again, and he may have used it only to gain admittance to Germany and may then have discarded it (AOB, maybe he handed it over, for further citizenship processing, to the Germans). Indeed, his statement, if believed, indicates that this was his object, and the mere fact that the renewal was for a year proves nothing, since, as was proved in evidence, that this is the normal period of extension. There is no evidence that he kept it for use on or after the 18th September (1939).

If I thought that the obtaining of the passport on the 24th July proved in law that the Appellant retained it for use at least until the 18th September, unless he was shown to have withdrawn his allegiance, I should accept this ruling. But I do not think it correct. It could only be supposed on the ground that allegiance continues until the Appellant shows that it is terminated.

The Attorney-general supported this contention by a reference to Archbold's Criminal Practice (1943), at p. 330, where he stated that if a matter be within the knowledge of the accused and unknown to the Crown the onus of proof is cast upon the former. For this proposition the case of Rex versus Turner (the year) (1816), 5M. & S. 206, is said to be an authority. But that case had been explained as dependent upon the special provisions of the Game Laws and as being, therefore, not of general application. The true principle, is, I think set out in Phipson on Evidence (8th Edition) p. 34, and Best on Evidence (12th Edition), p. 252, and is explained by Holroyd J. (himself a party to the judgement in Rex versus Turner (supra) in Rex versus Burdett (year) (1820), 4 B & A. 95 at p. 140: The rule in question, he says," "is not allowed to supply the want necessary proof, whether direct or presumptive, against a defendant of the crime with which he has charged; but when such proof has been given, it is a rule to be applied in considering the weight of evidence against him, whether direct or presumptive, when it is unopposed, unrebutted, or not weakened by contrary evidence, which it would be in the defendant's power to produce, if the fact directly or presumptively proved were not true."

In this be the true principle, the failure of the prisoner to give evidence as to his dealing with the passport goes to increase the weight of the evidence against him, but does not make the evidence of his applying for and receiving it prove conclusive in law that be continued to retain it for use or at all. That he received it may be some proof to go to the jury that he retained it, but it is no more; it is not a matter upon which the Court is entitled to rule that a jury must draw the inference that he retained his allegiance. Indeed at one point in his argument the Attorney-General used language which, in my view, accepted this as a true principle when he said": "I put the passport merely as evidence of the "existence of protection. If he "( i.e. the accused) "discarded it on his return that might make a difference.: To his observation I would merely add that the renewal of the passport was at best but some evidence from which the jury might infer that the duty of allegiance was still in existence. Unless, however, the accused man (William Joyce) continued to retain if for us as a potential protection, the duty of allegiance would cease, and it was for the juty to pronounce upon the matter.

I do not understand your Lordships to rely upon proviso (provision) to sect. 4 of the criminal Appeal Act, nor do I think it could be said that no substantial miscarriage of justice had occurred, if I am right in considering that the matter should have been left to the jury. The test has been laid down by your Lordship's House to be whether a reasonable jury properly directed must have come to the same conclusion.

In the present case a reasonable just properly directed might have considered that the allegiance had been terminated. Against the mere receipt of the passport there has top be set the fact that its possession was at least desirable if not necessary to enable the accused man to proceed to Germany from the country, the fact that it was not found in his possession again or anything further known of it, his statement as to his intention of becoming naturalised in Germany and his acceptance of a post from the German State. At any rate these were matters for a jury properly directed to consider. They were not directed on them and, as I have stated, in my view they were told that the matter was one of law and not for them.

My Lords, the question of the extent to which an alien long resident in this country continues to owe allegiance after he has left it and whether the request for and acceptance after he has left it and whether request for and acceptance of a passport makes the duty of allegiance still owed until the protection of that passport ceases by effluxion of time or at least for some period after it is issue is, and has been certified to be, a point of law of exceptional public importance. One matter to be decided in solving that question is the boundary like between the functions of a judge and those of the jury. Apart from this the principle that questions which are rightly for the jury should be left to them and that a proper direction should be given is, as I think, also of great public importance. The one matter concerns this country only in the exigencies (needs) of war, though then no doubt it is of vital importance: the other is a necessary element in the true administration of the law in all times of peace and war.

It is safety of the realm in war requires action outside the ordinary rule of law, it can be secured by appropriate measures such as a Defence of the Realm Act, but the protection of subject or foreigner afforded through trial by jury and the due submission to the jury of matters proper for their consideration is important always,, nut never more important then when the charge of treason is in question.

I am sorry to burden you with this, but I shall be grateful if you will examine the contents of these three packages, which are as follows:

(a) Documents which formerly belonged to William Joyce and which came into the hands of the (Prison) Governor of Wandsworth (Prison) after his execution.

(b) Documents with formerly belonged to William Joyce and which came into the hand of the governor of Wandsworth after his execution.

(c) documents belonging to mrs. Joyce which came into the hands of the Governor of Holloway after her departure to Brussels (after her leaving Germany).

Sir Frank Newsam is anxious for your assessment of their nature and for your opinion as to whether they can properly be handed of to (William Joyce's brother) Quentin Joyce.

I am returning this letter the papers relating to William Joyce which you found in the records of the senior Training Corps and which formed so useful an Exhibit when you produced them at his trial for High Treason.

As things turned out, you will remember, it was proved that Joyce was born the son of an American citizen, and thus that the assertions made, both by Joyce and his father, in these documents as to their British nationality, were in fact untrue. But for this, these records might well have played an important part in the trial.

May I take this opportunity of expressing our appreciation of the help you gave us in this matter.

During William Joyce detention in Britain prior to his execution on the 3rd January 1946 all correspondence between him and his wife was submitted to this office for censorship until after the failure of his last appeal when we ceased to scrutinise (examine) the letters in order to reduce delay in delivered. William's correspondence with third parties was censored for about four months, while all Margaret's out-going letters have passed through our hands. A schedule of extracts from William's correspondence is attached.

Fifty eight persons wrote to William expressing admiration, good wishes, or friendship. In a few cases money was enclosed, either as a contribution towards the cost of his defence, or for the purchase of cigarettes and such like comforts. Nine of these persons wrote anonymously. many of the Joyce correspondents were of course well known fascists or 18B cases (18B Order cases were provided on behalf of the Home Office. AOB: it may be regarded certain that also William Joyce 18B Order had already been provided; as S.B. personnel raided William Joyce's flat as to arrest him on 4th September 1939, but found the flat deserted). There have, however, been a small portion of illiterate or otherwise harmless fanatics, mostly of the anti-Jewish variety. An unusual type of correspondent was an old cleryman Reverent W.E. Farre of, 11 Huntly Street, Grahamstown, C.P. South Africa, who entered into correspondence with Margaret, apparently out of pure kindness of heart. Throughout all the Joyce correspondence an undercurrent of moral support could be senses from the Catholic Irish type, and in many cases this was expressed in religious terms. The main correspondence of the two Joyce's were, William's brother Quentin, Miss Scrimgeour, John Angus MacNab (KV 2/2474 - KV 2/2475) (in the 1930s for some time William Joyce's business associate), and to a lesser degree Rosetta McNeil-Sloane. These persons, although of political opinions similar to the Joyce's, have figured throughout in the capacity of personal friends. Special emphasis in this connection should be laid on MacNab. He is obviously a man of high culture and literary ability. He is also a devout Catholic, to the point of fanaticism. But although one may abhor (dislike) his political views, considered from the point of view of pure friendship his support of the Joyce's throughout has been beyond praise. His letters have been almost entirely religious strain, and this subject has now taken possession of his mind to such an extent that he may well fade out of the political scene altogether.

Perhaps every sensational trial produces its own crop of eccentrics. If this is the case the Joyce trial has been no exception. Twenty three letters were received which were either abusive or meaningless. Thirteen of these were anonymous. They ranged from one written by a P.T.R. Rayner, who was apparently trying to 'pull the leg' of the Security Service by suggesting that William Had been given improper access to the telephone during his incarceration (confinement), to another from an anonymous writer, who sent a bottle of rat poison to William.

The Joyce's' main correspondence, however, has been with one another, two hundred and twenty three of these letters having been censored by this office. William's letters were written in a precise and academic style with a bitting classical wit. Added to this however there was a thin, but none the less distinct line of almost 'guttersnipe' courseness, which was all the more remarkable against the otherwise academic background. The main purpose behind their correspondence was of course to maintain one another's moral, and considered from this point of view the letters of both of them were quite admirable. The main contents were typically fascist comments on the day to day news, and comments on the legal aspects of William's trial. From time to time William complained that his Judges were biased against him, and this culminated in vulgar abuse of the Lord Chief Justice in a letter written on the 19th December 1945m after the failure of his last Appeal The last letter of William to be censored by this Office found him expressing more and more arrogant fascist views and adopting the attitude that he would die as a front line soldier defending his ideals. On one occasion he even went so far as to say"... I prefer to believe that my work has not been in vain: and after I have died, I believe that I shall resume it."

Apart from her parents Mr. & Mrs. E.R. White of 18, Princess Road, Crumpsall, Manchester, and Reverent W.E. Farre (Farré?), mentioned above (apparently, this letter copy does not imply the full material once dealt with) , Margaret's correspondents have been the same as William's. Immediately before and after her husband's execution she seemed to be in a pretty pitiful state, although the indication is that she was able to maintain her morale in front of her husband. William himself seems to have behaved magnificently as far as his wife was concerned, and judging by correspondence, Mrs. Joyce has been left fairly comfortable off as far as money is concerned. The last letters showed her taking consolation in the Catholic Religion, in which she was much encouraged by MacNab. She was never shown any great concern as to her own fate, but she has expressed the hope that she may ultimately be allowed to settle in Eire.

AOB: next in the succession comes the list of their censored various correspondence, here and there essentials, according their censors, being quoted.

Does it make historically sense to us?

I prefer to publish first chapter 2

An using the next few hours to wage their actual relevance - whether or not bringing you in touch with some of their aspects.

AOB: it is not my intension to transcribe the following summaries completely, but picking-out what, in my perception, might be of some interest; though, and you are free to digest what you yourself prefer.

Please bear always in mind, that the the KV 2/xxxx serials are running, with increasing PDF page-numbers, backwards in time; however, in contrary being the Minute Sheets.

From: Joyce To: Mrs Joyce (=Margaret his wife) Date written 19.12.45 Comments: Vulgar abuse of the Lord Chief Justice

Joyce suggest that his wife sends another batch of his letters to (his brother) Quentin Joyce.

Joyce is now adopting the attitude that he will die as a frontline soldier defending his 'ideals'.

"...." I prefer to believe that my work has not been in vain: and after I have died, I believe that

that I shall resume it. Such a statement may seem odd: but you, Frega (Margaret's cosy-name?), understand."

AOB, please view entirely down 28.12.55: might this be the date when this document had been re-composed?

From Joyce To (his wife) Margaret Date 10.11.45 Comments: "... of course Joseph Goebbels dies before ~~April 30th~~. (1st May 1945)

https://de.wikipedia.org/wiki/Joseph_Goebbels and/or https://en.wikipedia.org/wiki/Joseph_Goebbels What we were doing (in Hamburg) at 2.30 on that day I recall very well indeed (that afternoon Hitler's death had been announced). How should we forget? I wonder what would happen, had we followed S's (Schneider's?) plan (think of hiding elsewhere). Same thing I suppose only (being caught) a little later."

From Joyce To: Mrs Joyce Date 17.10.45 Comment: "Tomorrow it will be a year since I received my K.v.K. 1 (Kriegsverdienstkreuz) Class 1 (signed by Hitler personally)

From Joyce To Mrs. Joyce Date 18.9.45 Comment "It is now finally established that never at any time have I been a British subject. That we knew, but the point was to convince others..."

From Mrs. Joyce To Joyce Date 8.9.45 Comments "Hesse (Dr. Fritz, PF 45496; KV 2/915; head of the propaganda radio) must be of the foulest (laziest) and wickedest old men who ever lived - hope Ribbentrop gives him away"

From Joyce To Mrs. Joyce Date 27.8.45 Comment "Chandra Bose (Burmese opposing the British occupancy of his country Burma) died as the result of an air crash (at Formosa (now Taiwan) heading for Japan)" Enclose cuttings from the Times of 25.8.45 and 27.8.45 dealing with the Hughes Court Martial.

From Joyce To Mrs. Joyce Date 10.8.45 Comment "I do not quite know where the German Naturalisation Certificate is, but I should not be surprised to find that the Volksgerichtshof retained it, when it wanted to charge me with sub-treason in February (1945)".

AOB: Herewith we take notice: that even William Joyce once had been suspected by the most feared Volksgerichtshof! So far, I did not encounter any hints in this direction. Maybe will learn later what it might have been about.

I have attached ti this report 4 copies of extracts from Margaret Joyce's Diary. You will see that on the 26th August 1940 they had to visit "Burg Strasse" and she records: "We have now become Germans". (AOB: application originated from 5 September 1939)

I have discovered that Burg Strasse was where the Berlin Police headquarters were at that date, and you will see Mr. Michelson's Note that the Berlin the President was the "Naturalization Authority" for granting German nationality. This seems to make it clear that the Joyce's their German Naturalization from the competent authority on 26th August 1940. (AOB, thus processing lasted just not yet a single year)

I should mention that, according to my information, the Berlin Police Headquarters in Burg Strasse were destroyed in air-raid in August 1943.

I have to inform you that the execution of the above-named condemned prisoner, has been fixed (in vain!) for Friday, 23rd November, 1945 at 9.a.m.

" 15th At 9.0 to the Public health Office for examination for naturalisation. Hell of a time and not very pleasant. My lung caused great excitement.

" 21st A man from the Chbg (Charlottenburg) Town Hall called about the naturalisation.

" 29the Up to health to see if certificate was ready and then to Kurteneth? to change cards.

Aug. 1st Had to go to Health Office. I've got a touch (scratch) of T.B. (Tuberculosis) and am under observation.

" 26th We got a letter to go to Burg Straße and then on to see Hesse (Dr. Fritz?). We have now become Germans and had lunch at the (Hotel) Kaiserhof to celebrate. Then we went to Burgstrasse and handed

The Appeal of the above-named came before the Court of Criminal Appeal (Lord Caldecote, L.C.J. Humphreys and Lynsky, J.J.), when Mr. G.O. Slade, K.C. , Mr. Derek Curtis Bennet, K.C. and Mr. Burge 9instructed by Messrs. Lulow & Co (Joyce's solicitor) appeared on his behalf and the Attorney-General (Sir Hartley Shawcross, K.C.), Mr. L.A. Byrne and Mr. Mr. Gerald Howard (instructed by the Director of Public Prosecutions) appeared for the Crown. The hearing lasted Tuesday (October 30th), Wednesday (October 31st and Thursday November 1st). Mr. Slade put forward substantially the same arguments as those which he had urged at the trial at the Central Criminal Court, and the arguments of the Attorney-general also followed the same lines as he had adopted at the trial.

At the conclusion of the counsel's arguments, the Court announced that it would give its judgements on the following Wednesday, November 7th.

On November 7th the written judgement of the Court was delivered by Lord Caldecote, L.C.J.; this lasted about half-an-hour and in the result the Court rejected the arguments by Mr. Slade, both on the point of allegiance and jurisdiction and dismissed the Appeal.

It is understood, though no final decision has been reached in the matter, that the Attorney-general will in all probability grant his fiat, if the appellant asks for it, to take the case to the House of Lords.

Would you please refer to your letter under the above reference number, dated October 2nd, 1945.

I have discussed the matter raised therein with the Director of Public Prosecutions, and in the result I shall be grateful if you will inform the Americans that it is not possible for any questions to be addressed to Joyce at the present time as his appeal is pending in the Court of Criminal Appeal.

Should the Court of Criminal Appeal dismiss the appeal, it may well be that the (Joyce's) defence will request the Attorney general to grant his fiat for an appeal to be made to the House of Lords. Should the fiat be granted, it will again not be possible to put questions to Joyce pending the hearing of the appeal by the House of Lords.

When the case is finally disposed of, should the conviction stand, the Americans still desire to press their application, I will consult the Home Office who are the authority concerned. For my own part, I should think that it was not at all desirable for Joyce to be questioned if he is in fact awaiting execution of sentence of death.

Should the appeal ultimately be allowed, it will be possible to arrange for the question to be put.

If I may suggest it, I think that all you need to say to the Americans at the present time is their request cannot be granted, though we regret it. (truly?) You may think it unnecessary to give them the rather more information which I have thought it proper to give you.

I am sending to you herewith two copies of an excerpt from the B.B.C. Digest which sets out certain broadcasts made from Moscow on September 19th last.

I hesitate to think what Moscow will say if it should so happen that the House of Lords should take a view favourable to Joyce. I am sure they will understand that the House of Lords in its judicial capacity is a professional body, but that they will regard it as an intervention by Reaction to save Joyce at all costs.

On the other hand, if the House of Lords accept the Crown's view on the law, the reputation of that body in the east will increase accordingly.

I have been asked about the British renegades (traitors) who came under my control. Control would not actually be an accurate definition, as my only interest in the matter was the payment of these people. The only British renegades (AOB: most likely not Dr. Hesse's wording) paid by me were Amery (KV 2/78 ... KV 2/84), Joyce, Baillie-Stewart (KV 2/174 ... KV 2/192 ca.), Royston (otherwise Freeman), Hewitt and Vernum. I have already made a full statement about Joyce to Stephenson, but the only time I paid Joyce any money, was 5000 marks in respect of his book. Amery was allowed unlimited expenses, in-as-much as he lived in his own free way and submitted all the bills to me.

Baillie-Stewart received about 1000 to 1200 marks a month. Royston received 400 to 600 marks a months, or possibly more. Vernum earned approximately the same amount as Royston. Hewitt was paid 2000 marks a month.

All the other British renegades (AOB: most likely not Hesse's own wording), of which there must have been quite a number were paid by the various departments in which they were actually employed, and I am not in a position to furnish any evidence about them. A number of names of these renegades have been mentioned to me, but apart from Brown (Banning) and Cooper, the names are unknown to me.

I have also been asked whether the records relating to these are in existence. It is within my knowledge that these records were destroyed in air raids.

Without exception, the salaries of the above named renegades were paid by my secretaries, mainly Dr. Hermann Berger.

The circumstances of Joyce being found in the Flensburg area have been dealt with in paragraph 9,10, 11 and 12 of this report Unless thought essential, it is not desired to bring the officers concerned with Joyce's apprehension over as witness.

As mentioned in paragraph 13 of this report Joyce was seen in hospital at Lüneburg bt Captain Skardon to whom he made a statement under caution. In this statement Joyce makes the following admission:-

In addition the documents in bundle 'A" apart from the statement under caution were found either in Joyce's possession or at the lodgings and admitted by Joyce to Captain Skardon to belong to him. A statement by Captain Skardon (Document No. 15 in Bundle 'B') is sent herewith. meantime the documents, where they are in Germany, have been translated by Mr. S.L. Salzedo, a copy of a statement by Mr. Salzedo as to his translations is included with this report. (Document No. 16 in Bundle 'B'). Copies of the translation follow the original German in each case. →

The following points my noted as to the documents (in numerical and date orders):-

This clearly shows what Joyce was born as previously stated and as admitted by him.

This appoint Joyce as "Chief Commentator for the group of countries 'England' ".

By this Joyce is appointed Head Commentator in the English Editorial Department of German Broadcasting Station for Europe (D.E.S.). His salary is 1200 marks a month and bonus. The contract is determinable on three months notice at the end of a quarter.

4. The ~~Iron Cross~~, ~~1st September~~ (17.10.44) (K.v.K. = Kriegsverdienstkreuz Class I) (K.v.K. was granted to all those supporting the German Warfare generally) (Joyce's K.v.K. was signed by Adolf Hitler personally) (An Iron Cross was only granted to those in real active military service!)

This awards Joyce the Iron Cross of War Merit 1st. Class and is signed (facsimile) by Hitler himself.

This certificate Joyce as being a member of the German Volkssturm (or Home Guard) Berlin District.

7. German military Passport dated April 12th, 1941. (Wehrpass, he did not serve in the Wehrmacht; he otherwise would have possessed a "Soldbuch" instead)

The makeshift German radio set-up at Apen was searched by Mr. Guy Della-Cioppa of P.W.D. A copy of his statement is sent with this report (Document No. 17 Bundle 'B'). The material found by him has been examined. It is not thought to add anything to the →

evidence with the possible exception of the two records dated April 6th 1945 entitled "Views on the News". These are only part of the whole broadcast. They have been heard by Inspector Hunt, Sergeant Buswell and Sergeant Rhodes and a copy oof their joint transcript is sent with this report (Document No. 5 Bundle 'C'). The talk was also monitored in its entirely by the B.B.C. and if thought necessary their monitor can be made available.

Whilst Joyce was still missing, Captain R.W. Spooner Intelligence Corps (M.I.5. Liaison Section, SHAEF) had occasion to go to Hamburg and examine a mess of material at the Radio Station there (Rothenbaumchaussee?) (Document No. 18 in Bundle ('B'). This material has been further examined by M.I.5. and in principle nothing would appear to add anything further to the case except two Magnetophon (tape) records.

These two recordings, both of which are by Joyce, have been heard by Inspector Hunt, Sergeant Buswell and Sergeant Rhodes. Copies of their transcript shorthand notes are sent with this report. Documents Nos. 6, 6a, 6b, 7, 7a and 7b in Bundle 'C').

On the cardboard containers relating to these records they are marked respectively Exhibits 1 and Exhibits 2. The dates of these records can be fixed by reference insofar as Exhibit 1 is concerned to the copy statement of (Mr.) (Schneider) (Document No. 19 in Bundle 'B') the Hamburg employee in whose presence it was made on April 30th 1945 (The day of Hitler's death (suicide). (AOB: This last recording had not been sent from Hamburg, but likely from the transmitter of Wilhelmshaven) it is almost certainly Joyce's last broadcast.

The date of Exhibits 2 is fixed by Fräulein Baucks as April 10th 1945 (Document No. 20 in Bundle 'B'). An interesting thing to note is that in Exhibit 2, Joyce speaks in his usual sneering boastful manner); in Exhibits 1, he is far from sober and rather despondent (despairing). The German witness, Schneider, Schneider and (Fräulein) Baucks, can be brought over to prove those records.

We have searched the original transcripts up to July 1940 and can find no trace of his ever claiming British nationality. On the contrary, he seems to have made a point of saying to his English listeners "your country", "your government" etc., and referring to himself and the Germans as "we here ...", etc.

But cf. Dig. 1239 - Zeesen: Eng. 1546 : 6 : 12 . 42 where he refers to England as "my country")

AOB: this is interesting, as it is pointing at the very fact that there actually did not existed yet a minute sheet at all, on William Joyce! as it starts in June 1945 with Minute serial 1a!

Apparently, it was initiated after William Joyce's arrest north of Flensburg; maybe there existed already a CX/.../ file serial-number on behalf of S.I.S.

To what became apparent: the British Secret Services spent all efforts as to trace William Joyce's broadcast recordings; ultimately were all their efforts (energy) in vain, as the Courts only considered William Joyce's allegiance against the Crown (King) as the sole ground for his ultimate "Death Penalty".

AOB: Luckily for us, we encounter a report as to how William Joyce ultimately had been caught

On 28th May at about 7 p.m. I was with another officer Lieutenant Perry in a wood, a mile from the Danish frontier near Flensburg gathering fuel. A little earlier we had seen an individual, a man who was also in the wood and we were collecting logs at 7 p.m. he turned towards us and waving his stick indicated some wood in a ditch. Thereafter he remained near us and presently spoke to us in French but we ignored his remarks except to thank him in German. He seemed anxious to help us find fuel and to talk to us. After a while he said in English "Here are a few more pieces". I immediately recognised his voice as that of a broadcaster on the German radio known as William Joyce. I desired to confirm my suspicions and had a discussion with Lieutenant Perry. We evolved a plan as a result of which when the man was placing wood on our truck Lieut. Perry taxed him saying to him "You wouldn't happen to be William Joyce would you?" He put his hand quickly to his pocket and Perry shot at his hand. Joyce fell to the ground saying "May name is Hansen", I rushed towards him and searched him with a view to disarming him. Joyce said "I an not armed". Looking through his pockets I found in the inner jacket a Reisepass in the name of Wilhelm Hansen and a Wehrpass in the name of William Joyce.

We then treated his wound by giving first aid, later handing him over to the appropriate military authorities.

We expect to bring Mrs. Joyce from Brussels to London by air on Monday next, November 19th (1945). We will arrange for Special Branch, Metropolitan Police (at Scotland Yard in Whitehall), to meet her at the airport and to take her to Holloway Prison. (AOB: at what legal basis'; because she is a German?).

You will no doubt notify the Governor of Holloway that she is to be expected. Would you also instruct your Immigration Branch at Croydon that she is to be refused leave to land(?), and that she is a German.

I will communicate with you by telephone as soon as the expected time of arrival is known?

I take it that the Governors of Holloway and Wandsworth Prisons will make arrangements for the meeting between Mrs. Joyce and her husband.

I shall be grateful if you will let me know how long Mrs. Joyce will remain in the United Kingdom. We are anxious to avoid more journeys by her than are absolutely necessary.

Is it proposed to prosecute Mrs. Joyce in this country? Would a visit by Mrs. Joyce to her husband cause any legal embarrassment?

On the information at present available it appears that this woman ceased to be British subject when her husband acquired German nationality in September 1940 and we have no evidence of any treasonable activities prior to that date. According in the absence of further evidence either as to he nationality or her activities proceedings against her would not be justified.

In these circumstances I have no observations to make on the petition except that, should S. of S. see fit to grant the request, I presume, in view of Sir Oscar Dowson's opinion of October 2nd last, that Mrs. Joyce will be brought to this country as an alien.

If she were treated as a British subject an embarrassing situation might arise as the decision as to prosecution is based on the opposite assumption.

Then ask W.O. (War Office) to bring Mrs. Joyce over here in custody. She should on arrival be lodged in a woman's prison (? Holloway) and after seeing her husband should she be returned in custody to the place from which she came (Brussels).

I have spoken to Col. Cussen, M.I.5, who will make the necessary arrangements about which he sees no special difficulty.

The trial of William Joyce took place on Monday, Tuesday and Wednesday - 17th, 18th and 19th September, 1945 - before Tucker, Judge? at the Centreal Criminal Court. The Attorney General (Sir Hartley Shawcross, K.C.), Mr. L.A. Byrne and Mr. Gerald Howard (instructed by the Director of Public Prosecution (D.P.P.) appeared on behalf of the Crown, and Joyce was defended by Mr. G.O. Slade, K.C., Mr. Derek Curtis Bennett, K.C. and G.C. Burge (instructed by Messrs. Ludlow & Co. (Joyce's solicitor).

2. There were three Counts in the Indictment and of these, Count 1 and 2 were amended during the course of the trial (see minute 99a). The third Count alleged that Joyce owed allegiance to the King between September 18th, 1939 (AOB: when William Joyce actually gave his first broadcast presentation/talk; possessing still a valid British passport) and July 2nd, 1940 1940 (AOB: the date his British passport lost its validity; but being just not yet a German citizen) when his passport expired.

3. A long legal argument ensued (followed) in connection with Count 3, being contended (opposed) by Mr. Slade (member of his defence) that Joyce, having proved himself to be an American citizen (because he was born on 24 April 1906 in Brooklyn, whereas his father Michael was proven a U.S. citizen), could not possibly have owed any allegiance at any time to the King and indeed, the Court had no jurisdiction to try him in respect of an offence of treason not committed in this country. At the conclusion of this legal argument Tucker. J. ruled that during the currency of his British passport, Joyce owed an allegiance to the Kind.

4. Tucker. J. in the summing up directed the jury to acquit Joyce on Counts 1 and 2 and then invited them on Count 3 to consider whether the prosecution had proved that Joyce had broadcast propaganda over the German radio as between September 18th, 1939 (this was stated within Joyce Arbeitsbuch /workbook; thus this could not be debated), and July 2nd, 1940 (on this latter date his British passport expired, and on 26th August 1940 he, together with his wife Margaret received/obtained their German citizenship / passport); if the jury found that he had so done, then their verdict should be one of 'Guilty'. The jury, after a retirementof twenty-five minutes, returned a verdict of 'Not Guilty' on Count 1 and 2 and a verdict of 'Guilty'on Count 3, and Joyce was sentenced (by this first Court) to death.

5. It being understood that Joyce is lodging an appeal as soon as may be, it is intended to obtain a copy of the shorthand note from the Court of Criminal Appeal.

AOB: Today 2 August 2022 - I have been forced to finish this file series, as we reach now the final KV 2/250 serials; which is covering 8 sub-sections, far too extensive to implement (add) into this current: