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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Rusbridger & Anor v Attorney General  EWCA Civ 397 (20th March, 2002)
Cite as:  EWCA Civ 397
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
London, WC2A 2LL
B e f o r e :
LORD JUSTICE MAY
LORD JUSTICE JONATHAN PARKER
| ALAN RUSBRIDGER|
|- and -|
|THE ATTORNEY GENERAL||Respondent|
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Philip SALES and David PERRY (instructed by Treasury Solicitor) for the Respondent
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Schiemann :
This is the judgment of the court.
“Dear Mr. Attorney.
I write to give you notice that from December 6th (the day of the Queen’s speech) onwards the Guardian propose to publish a number of articles which will invite and incite support for a republican government in the United Kingdom. Their purpose and intention will be to deprive and depose Elizabeth Windsor (and her successors) from the style, honour and royal name of the imperial crown of the United Kingdom, although they will not advocate the use of criminal force so to do.
We draw your attention on the Treason Felony Act of 1848 which would appear to make this intention, when declared “by publishing any printing or writing”, an offence for which as editor I shall either be liable to imprisonment or else transported beyond the seas for the term of my natural life.
Although our researchers have not located any prosecution since 1883, it has not been repealed and Archbold (chapter 25, paras 32-35) indicates that it is still of full force and effect. In one precedent, The Queen against John Mitchel (1848) 6 St. Tr. (NS) 599, the judge instructed the jury that advocacy of republicanism was necessarily an offence:
There are no two things more inconsistent with each other – no two ideas more opposed to each other – no two expressions more contradictory of each other than that of a republic to a monarchy; and any man who does avow his desire to compass and obtain a republic, must inevitably intend to imagine the deposition and destruction of the monarchy. The two things cannot combine; the destruction of one is involved in the existence of the other. And if, looking to the natural import, tenor and meaning of the words used, you think that he did compass and intend to have a republic, there is necessarily and inevitably implied in that compassing an intention to deprive Her Majesty of her imperial throne.”
Further in The Queen against Charles Gavan Duffy (1848) 2 St. Tr. (NS) 795, in summing up to the jury Ball J. stated that:
“.... if any person shall entertain the intention of deposing Her Majesty from her sovereignty in this country, or the intention of levying war against Her Majesty for the purpose of coercing her to change her measures and counsels and shall in either case manifest such an intention by any printing or writing, he shall be guilty of felony ... an attempt to depose the sovereign does not impart any intention to injure the Queen or even to treat her with any personal disrespect. Neither is a formal intention to deprive her of her titles, position and dignity necessary. The offence has been perpetrated if the prisoner has entertained and expressed the intention of constituting or setting up in this Kingdom any body of persons who were to exercise the functions of the Government and virtually to supersede the Queen’s authority – still more so if the prisoner has entertained and expressed an intention of severing this country from the British crown and establishing either a republic or any other form of Government.”
I might be thought unnecessarily punctilious in drawing your attention to a law which has become in effect a dead letter, and which you would probably not wish to reactivate in the absence of an incitement to criminal violence. However (as Lord Reid has said) bad laws are not defensible on the grounds that they will be sensibly enforced.
Moreover, since this Act is a blatant infringement of free speech (and has been deployed in its time to transport courageous Irish editors in chains to Botony Bay) I would be grateful if you could tell me where I stand. I am entitled under the Human Rights Act 1998 to know whether my proposed exercise of my right (and my readers' right) to freedom of expression is to be restricted by a prescribed law which seeks a legitimate aim, is necessary in a democratic society and is proportionate to the legitimate aim.
I invite you therefore to announce your intention to disapply the Treason Felony Act (1848) in respect of all published advocacy of the deposition or destruction of the Monarchy other than by criminal violence. You would, I imagine, justify this course on the grounds that the Act has fallen into desuetude or that to prosecute in the aforementioned circumstances is not in the public interest because it would be a clear breach of the incorporated ECHR Article 10.
Alternatively you might use your “parens patriae” position to seek a declaration in the High Court that as a result of the operation of section 3 of the Human Rights Act (1998), section 3 of the Treason and Felony Act (1848) no longer bears its literal meaning, but should be interpreted “so far as is possible” to comply with Article 10 (ECHR). The Act seems to create four separate offences, viz:
1). Depriving etc the Queen of her title;
2). Levying war against her in order “by force or constraint” to compel her to alter her counsel;
3). Intimidating either or both the Houses of Commons or House of Lords through force or constraint;
4). Stirring foreigners to invade the United Kingdom by force.
It might be “possible” for a court to read back into the first offence the element of force which is expressly included in the three following offences. Should you ask the High Court for a declaration to this effect, the Guardian will support you.
I hope you will not treat this as an idle or hypothetical matter. There is mounting evidence from human right organisations that Britain’s failure to repeal or reform unused penal laws or statutes incriminating free speech serves as an excuse for oppressive Governments in former colonies to use the legal equivalent to persecute and jail journalists and dissidents. No Government committed to human rights should suffer these anachronisms to remain as part of British law in the twenty-first century.”
Thank you for your letter of 28 November, received late in the afternoon of 29 November, informing me that you propose to publish a series of article in The Guardian starting on 6th December, and seeking a number of decisions concerning a possible offence under the Treason Felony Act 1848.
I hope you will understand that neither David Calvert-Smith nor I can give you an assurance regarding whether or not a prosecution or other action will be taken in respect of your proposed conduct. You are asking me to take action, with little notice, which sanctions in advance conduct which may be criminal. I have not seen the articles. A decision whether or not to bring a prosecution involves consideration of the evidence and the public interest, against known facts. It seems to me that you should take you own legal advice, and then decide for yourself whether you will follow it.
It may be that your letter is essentially directed at prompting reform of the 1848 Act. The Human Rights Act 1998 retained the principle of Parliamentary sovereignty, and it ultimately remains the role of the legislature rather than the courts to decide whether to retain legislation.
It is open to you to write to the Home Secretary on the question of law reform should you wish to do so.”
“Dear Mr. Attorney,
Thank you for your letter of 4 December written on behalf of yourself and the Director of Public Prosecutions.
In my earlier letter I asked you to confirm you would disapply the Treason Felony Act 1848 in respect of all published advocacy of the deposition or destruction of the monarchy other than by violence. I infer from your reply that you and Mr. Calvert-Smith have decided that the Treason Felony Act still penalises the peaceful advocacy of republican government in Britain notwithstanding the Human Rights Act.
Your decision as to whether I will be prosecuted depends, you say, upon your “consideration of the evidence and the public interest against known facts”. I am sending you a copy of today’s Guardian for your consideration, from which you will see we are inviting support for a republican government in Britain although without use of violence. You have refused to confirm I will not be prosecuted. In the event of my arrest my contention that s. 3 of the Human Rights Act requires re-interpretation of the Treason Felony Act so that liability depends on incitement of violence can be tested before a High Court Judge at the Old Bailey.
If you decline to prosecute on public interest grounds, I nevertheless remain open to prosecution each time I publish such material if you (or your successor, perhaps from a different government) take a different view of this subjective notion of the “public interest”. I therefore remain a “victim” for the purposes of Article 34 of the European Convention and will bring proceedings under s. 7 of the Human Rights Act to obtain a declaration on construction of the Treason Felony Act that will remove all possibility of future prosecution of myself or any other peaceful editor or journalist.
As you say you have had little notice. To allow you time to consider the issues raised in this letter and in my letter of 28 November I should be grateful to know within 28 days whether you intend to prosecute.
Dear Mr. Rusbridger,
Thank you for your letter of 6 December, enclosing a copy of the Guardian. I had in fact already read it.
You have asked me to confirm that I will disapply the Treason Felony Act 1848 in respect of all published advocacy of the deposition or destruction of the monarchy other than by violence. It is not for any Attorney General to disapply an Act of Parliament: that is a matter for Parliament itself.
You made a number of observations about action you will take if you are, and if you are not, prosecuted. I read these with interest.
3. Offences herein mentioned declared to be felonies
...If any person whatsoever shall, within the United Kingdom or without, compass, imagine, invent, devise, or intend to deprive or depose our Most Gracious Lady the Queen,.... from the style, honour, or royal name of the imperial crown of the United Kingdom, or of any other of her Majesty’s dominions and countries, or to levy war against her Majesty,... within any part of the United Kingdom, in order by force or constraint to compel her ... to change her... measures or counsels, or in order to put any force or constraint upon or in order to intimidate or overawe both Houses or either House of Parliament, or to move or stir any foreigner or stranger with force to invade the United Kingdom or any other of her Majesty’s dominions or countries under the obeisance of her Majesty, ... and such compassings, imaginations, inventions, devices, or intentions, or any of them, shall express, utter, or declare, by publishing any printing or writing,... or by any overt act or deed, every person so offending shall be guilty of felony, and being convicted thereof shall be liable, ... to be imprisoned for the term of his or her natural life.....
7. “As at the date of filing there has been no move to prosecute the claimants. Although the Treason Felony Act contains no time limit on prosecutions, and The Guardian for 6 December remains in print (obtainable as a back issue or by down-loading from The Guardian website) it is a reasonable inference from the lapse of 7 weeks since publication that no prosecution will be brought and hence the court will not be provided with the opportunity to declare the law in the course of criminal proceedings. The Attorney General has not himself sought a declaration as requested by the claimant in the letter of 28 November.
8. In these circumstances, the claimants are ‘victims’ (for the purposes of s7 and Article 43 of the ECHR), of the act of a public authority, namely the failure by the defendants, as public officials charged with applying the law, to decide whether s3 of the HRA applies to assist the construction of s3 of the HRA. The defendants have either refused to consider whether it does (i.e. a breach of their law enforcement duty) or have considered that it has no effect (an error of law). The claimants remain open to prosecution, since the original edition of The Guardian is still available and since they propose to publish further advocacy of a Republic. It is of importance to the right of freedom of expression guaranteed to the claimants and to their readers that the threat to prosecute should be authoritatively declared either baseless or real.”
“4. The Act was extensively deployed in Dublin in August and October 1848, but very rarely thereafter. Archbold 2001 (Chapters 25-35) claims to cite all reported cases on the Statute – 10 from these Dublin sessions and one from 1867. These cases establish that if the natural tenor, impact and meaning of any publication discloses an intention to support a republican form of Government, an offence under the first limb of s.3 is committed. See for example, the summing up in R v John Mitchel (1848) 6 St.Tr. (NS) 599 at p. 685-6, and R v Charles Gavan Duffy (1848) 7 St. Tr. (NS) 915 at 950-951. Both defendants were newspaper proprietors – Mitchel of “The United Irishman” and Gavan Duffy of the “The Nation” – and Mitchel was sentenced to transportation for 14 years.
6. This construction it is not the only interpretation which it is possible sensibly to advance. In 1848, Lord Chief Baron Alderson in his charge to the grand jury which sent Mitchel and Gavan Duffy to trial intimated that the section might require the Crown to show a mens rea beyond “the warm and zealous advocacy of opinions conscientiously entertained, the expression of which does not transcend the limits of the law” (Report on the proceedings under the Treason Felony Act, Dublin 1848 p.6). This raises the ‘possibility’ that the section may, by implication, require proof of intent to achieve the offending purpose by unlawful means. Another possible interpretation was advanced by the first claimant in his letter of the 28th November 2000, namely to deconstruct the section into four offences all of which would require proof of a specific intent that force or constraint should be used to achieve the offending purpose.
9. Under European jurisprudence, which the Court is now required to apply persuasively (s.2 HRA), prohibition upon incitement to establish a republic by lawful means cannot be “necessary in a democratic society”. A law which proscribes publication of a political idea infringes the right to freedom of expression. The aim of such a ban, namely to protect one among a number of forms of democratic government, cannot be in the interests of national security, whatever the insecurities of 1795 and 1848. It corresponds to no “pressing social need”. It could only be defended under 10(2) as protecting the inherited right of one person – the monarch – but is neither necessary to this end (hence the absence of any recent prosecution) nor could a criminal statute threatening life imprisonment be proportionate thereto. The Article 10(1) right has a special status under the ECHR: Court decisions consistently refer to it as “one of the essential foundations for a democratic society” and require “as a matter of general principle” that the necessity for any restriction must be “convincingly established” (Sunday Times (No. 2) (1992) 14 EHRR 229). The defendants cannot convincingly meet the burden of proving the need for a literal interpretation of s.3 of the 1848 Act.
10. Moreover, s. 3 fails the requirement that any interference with freedom of expression must be “prescribed by law”. The wording is so confused, and the precedent so old, that it is impossible for any person who peacefully advocates a republic in print or writing to know whether he or she will be prosecuted. (Sunday Times v United Kingdom) Evidence that the Article 10 infringement is not “prescribed by law” is provided by the first defendants’ letters in this case. He is unable to state whether the law does incriminate the publication of non-violent republican sentiments.
11. S. 3 of the 1848 Act as construed infringes Article 10 for a third reason. It has no legitimate aim. In principle it is rarely legitimate to infringe Article 10 to protect the non-Convention rights of others: see Chassagnou and Others v France (2000) 29 EHRR 615. It cannot seriously be argued that the aim of prohibiting republican advocacy is to protect state security. It is not legitimate to protect royalty from criticism (Wille v Liechtenstein (1999) 30 EHRR 558) or to infringe a Convention right out of respect for history/tradition (Buscarini v San Marino (1999) 30 EHRR 208).
12. It follows that if the Court decides it is impossible to interpret s. 3 in either of the ways suggested in paras 6 & 7 above, the conditions for making a declaration of incompatibility under s. 4(2) of the HRA would be present and in view of the importance of the Article 10 right the discretion to make such a declaration ought to be excised in the claimants’ favour.”
1. A declaration that the decision of the defendants that s.3 of the 1848 Act is unaffected by s.3 of the HRA is erroneous in law and in breach of s.6 of the HRA.
2. A declaration that the decision of the defendants that a newspaper editor who publishes articles which invite and incite the establishment by lawful means of a republican form of government in the United Kingdom, and a journalist who writes such articles, remain liable to prosecution under s.3 of the 1848 Act is erroneous in law and in breach of s. 6 of the Human Rights Act.
3. A declaration that by virtue of the operation of s.3 and Schedule 1 of the HRA 1998, s.3 of the Treason Felony Act 1848 does not apply to persons who evince in print or in writing an intent to depose the monarch or deprive her of her imperial status or to establish a republican form of government unless their intent is to achieve this by acts of force, constraint or other unlawful means.
4. Alternatively a declaration of incompatibility under s.4(2) of the HRA.
1. The Court held that nothing that the Attorney General had said in the letters of 4 or 8 December amounted to any decision. Nor was there evidence of any other decision or action. He failed to prosecute but no complaint is made in relation to that.
2. Assuming that s.3 of the 1848 Act was contrary to the Convention and could not be read down so as to make it compatible, it would still not be unlawful for the Attorney General to act in accordance with the 1848 Act.
3. Assuming that s.3 of the 1848 Act was compatible with the Convention, then it would not be unlawful for the Attorney General to enforce it.