title: Should there be a separate Scottish law of treason?
Creators: name: Kennedy, Lewis
Publisher: name: University of Glasgow
Year: 2020
Subjects: subject: Treason, political crimes, citizenship, Scots criminal law, devolution, public interest defence, international law defence, whistleblowing, humanitarian defence, superior orders defence.

description: Shortly after the Union, the Treason Act 1708 revoked Scotland’s separate treason law in favour of England’s treason law. Historically, English treason law was imposed on Scots criminal law and was not always sensitive to the differences in Scottish legal institutions and culture. A review of the law of treason is in contemplation, it being under general attention more than at any time since the end of World War II. If there were to be a revival of UK treason law, the creation of a separate Scottish treason law may be a logical development given Scotland’s evolving devolution settlement. The thesis attempts to answer the question whether there should be a new, distinct, Scottish law of treason. If so, how might it be reformed for the modern era, refined for the Scottish context, and fit into the devolved system? An essentially ‘black-letter’ approach has been adopted – considering this issue in a strictly law-centred and legalistic manner – while making appropriate allowance for external factors such as policy and political considerations. Based on my normative evaluation of treason law, this thesis puts forward an argument that though current treason law is problematic, there is still justification for it. My original contribution to knowledge is to demonstrate how it can be rendered relevant for the modern Scottish context. Firstly, I argue that allegiance, traditionally at the heart of treason law, seems archaic and suggest the ways in which it can be modernised and reconstructed. The primary resources for doing so can be found in the Lauterpacht and Williams debate which followed Joyce. Treason’s core duty of allegiance can be re-interpreted in terms of Williams’ duty-based contractual model. Building on that modelling, a negative duty of allegiance (or duty of non-betrayal) emerges. Secondly, while thinking of treason to the UK as a general offence of breaking the bond of allegiance, there is room for a more Scottish inflexion in the way in which the offence might apply. This includes a Scottish political object of allegiance – incorporating Scottish political institutions as a complementary focus for potential allegiance – specifically, the Crown-in-Scotland. Its essential elements – actus reus, jurisdiction, mens rea and operable defences – can be recalibrated for any such revised allegiance model, with suitable Scottish inflexion. With this analysis, only a limited range of betraying acts emerges. Its actus reus can be reframed in terms of a construct grounded in ‘Adherence Treason’, referable to a national security harm principle and insisting that its commission involves providing material assistance to the enemy. The negative duty is underlined by removal of the commission of treason by only omission. Referencing the Draft Scottish Criminal Code, express statutory recognition might be made for the operation of the general common law defences of necessity, coercion and obeying superior orders. Its exceptional character commends provision for new specific statutory defences with contemporary resonance – including a ‘Public Interest Defence’, ‘Government Whistleblowing Defence’ and the Australian ‘Humanitarian Defence’. Formulating a Scottish treason law might provide a suitable template for UK reform. But this is more than a pragmatic justification. Though not materially different in terms of its offence elements, its defence elements should reflect a principled Scottish deviation in the availability of common law defences of necessity, coercion and obeying superior orders.