TNAG-1189-FCO40-1491-Implications-for-Hong-Kong-of-changes-in-the-British-nationa-1982 — Page 195

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It was decided in China Navigation Co. v. Attorney General 1932 2 KB 197, (the case where shippers in the South China Seas unsuccessfully sued the Crown to pay for the cost of military protection carried aboard against pirates) "that as a matter of English municipal law, the right of a subject.... ...to the protection of the Crown when outside the realm is not a legally enforceable right": see per Diplock Passports & Protection in International Law 32 Grotius Transactions 54.

3. The Nature of a Passport

In Joyce's case the House of Lords adopted and approved the classic description of a passport by Lord Alverstone C.J. in R. v. Brailsford 1905 2 KB at 745 that:

(i)

"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."

It is relevant to notice that the American courts have adopted almost an identical description of the nature and effect of a passport:

(ii) "Preliminarily it is essential to recall the nature and effect of a passport. A passport is a document identifying a citizen, in effect requesting foreign powers to allow the bearer to enter and pass freely and safely, recognising the right of the bearer to the protection and good offices of American diplomatic and consular officers: Kent v. Dulles (1958) 357 US 116 at 120.

It is of particular interest too to see that in the argument in Joyce's case (at p. 358) the Attorney General, Sir Hartley Shawcross, expressly described the nature of a passport as follows:

(iii) "The passport is now the method by which the Crown

accords his protection to persons abroad. It is the sovereign's express command to his representatives that protection is to be given and in its normal functioning puts into operation the Crown's protective system... the passport holder has the benefit of a protective machinery......even to the point of involving the country in war."

Joyce was hanged because, although an Irish American, by applying for and holding a British passport the House of Lords held he was entitled to that protection, and hence also owed the duty of allegiance, so that his broadcasts were treasonable.

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