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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Rusbridger & Anor, R (on the application of) v Her Majesty's Attorney General [2003] UKHL 38 (26 June 2003) URL: http://www.bailii.org/uk/cases/UKHL/2003/38.html Cite as: [2003] HRLR 32, [2003] 3 WLR 232, [2003] 3 All ER 784, [2003] UKHL 38, [2004] 1 AC 357, [2004] AC 357 |
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Judgments -
Regina v Her Majesty's Attorney General (Appellant) ex parte Rusbridger and another (Respondents)
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OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Regina v. Her Majesty's Attorney General (Appellant) ex parte Rusbridger and another (Respondent) ON THURSDAY 26 JUNE 2003 The Appellate Committee comprised: Lord Steyn Lord Hutton Lord Scott of Foscote Lord Rodger of Earlsferry Lord Walker of Gestingthorpe HOUSE OF LORDSOPINIONS OF THE LORDS OF APPEAL FOR JUDGMENTIN THE CAUSERegina v. Her Majesty's Attorney General (Appellant) ex parte Rusbridger and another (Respondent)[2003] UKHL 38LORD STEYN My Lords, I. The 1848 Act. 3. Section 3 of the 1848 Act provides: ". . . 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 transported beyond the seas for the term of his or her natural life . . ." The gaps in the text reflect words repealed by the Statute Law (Repeals) Act 1891 and the Statute Law (Repeals) Act 1892. The old common law classification of crimes as treasons, felonies and misdemeanours has been abolished: section 1 of the Criminal Law Act 1967. The reference in section 3 to "felony" is to be read as a reference to an offence. The penalty under section 3 is now imprisonment for life or any shorter period: Penal Servitude Act 1857 and Criminal Justice Act 1948. Subject to these statutory changes, section 3 remains in full force. (a) to deprive the Sovereign of the Crown; This is how the section is approached in Halsbury's Laws of England 4th ed., Vol 11 (1), para 86, and in Smith and Hogan, Criminal Law, 6th ed., 1988, 832-833, the relevant section being omitted from subsequent editions of this book. For present purposes the material part of section 3 is that directed against compassing by publication to deprive or depose the Queen from the Crown. This provision had as a prime target editors of newspapers and this was indeed the main use made of it in prosecutions in Victorian times. No prosecutions have, however, been brought under it since 1883. II. The Human Rights Act 1998. 7. The Human Rights Act 1998 has potential implications for interpretation of section 3 of the 1848 Act if it makes punishable the advocacy of republicanism by individuals or the press by constitutional methods. The convention right at stake is freedom of expression. Article 10 provides: "1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interest of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary." Freedom of political speech is a core value of our legal system. Without it the rule of law cannot be maintained. Whatever may have been the position before the Human Rights Act came into operation, it is difficult to think of any rational argument justifying the criminalisation of the conduct of citizens who wish to argue for a different form of government. 8. Section 3(1) of the 1998 Act provides: "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights." Section 3(1) is not available where the suggested interpretation is contrary to express statutory words or is by implication necessarily contradicted by the statute: In re S (Minors) (Care Order: Implementation of Care Plan) [2002] 2 AC 291, 313, para 40, per Lord Nicholls of Birkenhead. If it is unavailable, incompatibility of legislation with a Convention right brings section 4 into play. Section 4, so far as material, provides: "4 (1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility." (3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right. (4) If the court is satisfied - (a) that the provision is incompatible with a Convention right, and (b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility, it may make a declaration of that incompatibility. (5) . . . Any suggestion that a total legislative ban on republican discourse in print could be compatible with article 10 would stretch judicial gullibility to breaking point. It, therefore, appears inevitable that any resultant incompatibility would have to be read down under the strong interpretative obligation under section 3(1). III. The Shape of the Appeal. 9. The Guardian is a daily newspaper with a circulation in excess of 400,000. Mr Alan Rusbridger and Ms Polly Toynbee are respectively the editor and a well-known journalist of The Guardian. In November 2000 they and other employees of The Guardian agreed to write and publish a series of articles urging the abolition of the monarchy. They agreed that none of the articles would in any way encourage the use of force. Mr Rusbridger was aware of the Treason Felony Act 1848. He was concerned that his agreement to promote republicanism might constitute a treasonable campaign. He received legal advice that the interpretation of section 3 of the 1848 Act would be read down under section 3 of the Human Rights Act 1998 on the grounds that section 3 of the 1848 Act, as interpreted in various nineteenth century decisions, was incompatible with Article 10 of the European Convention on Human Rights: R v Mitchel (1848) St Tr (NS) 599; and R v Duffy (1848) St Tr (NS) 915. In a letter dated 28 November 2000 Mr Rusbridger informed the Attorney General of The Guardian's proposals to publish the articles. He asked for a clarification of his legal position in the light of the 1848 Act and invited the Attorney General to announce an intention to disapply the 1848 Act in respect of all published advocacy of the deposition of the monarchy other than by criminal violence. In the alternative, he suggested that the Attorney General might seek a declaration as to the proper interpretation of section 3 of the 1848 Act in the light of the Human Rights Act 1998. In his written reply of 4 December 2000, the Attorney General declined to give an assurance regarding whether or not a prosecution or other action would be taken in respect of the conduct proposed. 10. On 6 December 2000, The Guardian published articles which unambiguously advocated republicanism and Mr Rusbridger sent a copy of the newspaper to the Attorney General together with a reply to the Attorney General's letter of 4 December 2000. Mr Rusbridger asked to be informed, within 28 days, whether a prosecution would be brought and also stated that he would be commencing a claim under section 7 of the Human Rights Act for a declaration on the construction of the 1848 Act. The Attorney General replied on 8 December 2000. In the event, no prosecutions were brought against Mr Rusbridger and Ms Toynbee. 11. On 16 February 2001, The Guardian commenced a claim for: (1) a declaration that two decisions allegedly taken by the Attorney General during his exchange of correspondence with Mr Rusbridger were erroneous in law and in breach of section 6 of the Human Rights Act 1998; (2) a declaration that section 3 of the 1848 Act, when read in the light of the Human Rights Act, 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; and (3) in the alternative, a declaration of incompatibility. 13. On 18 February 2002, The Guardian renewed the application for permission to appeal before the Court of Appeal. At an oral hearing The Guardian did not press its appeal against the refusal to grant permission for the judicial review of the appellant's two alleged decisions. The Guardian obtained an amendment of its claim for declaratory relief to a claim for a declaration that section 3 of the Human Rights Act applies to section 3 of the 1848 Act and that in consequence the latter section must henceforth be read and given effect to as if the phrase "by acts of force or constraint or other unlawful means" followed and qualified the words "to deprive or depose". ". . . We of course express no view as to whether a declaration in the form now sought should be granted or as to the construction of the 1848 Act but we consider that it would not be in the interests of justice to prevent the matters raised in this application from being fully argued. We do not approach the matter as though we were reviewing the exercise of discretion by the Administrative Court since that Court did not have before it the application for the declaration which we have before us and since the arguments apparently addressed to it were different from those which we heard." The Guardian's claim as amended was ordered to be remitted to the Administrative Court. The Court of Appeal declined to grant leave to appeal to the House of Lords. (1) What are the principles that determine whether a civil court should entertain a claim for declaratory relief on a question of criminal law? (2) Was the Court of Appeal entitled to interfere with the Administrative Court's decision to dismiss The Guardian's claim for a declaration? (3) In the light of the answers to issues (1) and (2), should The Guardian's remaining claims for declaratory relief be allowed to proceed?IV. Issue (1): The Principle. "My Lords, it is not necessary in this case to decide whether a declaration as to the criminality or otherwise of future conduct can ever properly be made by a civil court. In my opinion it would be a very exceptional case in which it would be right to do so." Since 1951 it has become well established that there is jurisdiction for a civil court to make such a declaration: compare Zamir and Woolf, The Declaratory Judgment, 3rd ed., 2002, para 4.201; R v Director of Public Prosecutions, Ex parte Camelot plc [1997] 10 Adm. LR 93. But the exceptional nature of such a declaration by a civil court has on a number of occasions been emphasised. 17. In Airedale N.H.S. Trust v Bland [1993] AC 789 the House granted a declaration that it would be lawful to discontinue life-sustaining treatment to Mr Bland who was in a permanent vegative state. This was, of course, a truly exceptional case and the House held that the general principle does not debar declaratory relief. 18. The principle, and the exception to it, is in line with the ratio of the decision of the House of Lords in R v Director of Public Prosecutions Ex Parte Kebilene [2000] 2 AC 326, viz that, absent "dishonesty or mala fide or an exceptional circumstance" decisions by the Director of Public Prosecution to consent to a prosecution are not amenable to judicial review. In Regina (Pretty) v Director of Public Prosecutions [2002] 1 AC 800 the applicant sought a declaration that it was lawful for Mrs Pretty to be assisted by her husband to commit suicide. Lord Hobhouse of Woodborough observed (para 116): "In exceptional circumstances it may be proper for a member of the public to bring proceedings against the Crown for a declaration that certain proposed conduct is lawful and name the Attorney General as the formal defendant to the claim. But that is not what occurred here and, even then, the Court would have a discretion which it would normally exercise to refuse to rule upon hypothetical facts. Had the case raised by the appellant been one where it was appropriate to grant a declaration as to legality or compatibility, the court would no doubt have adopted that approach." 19. Counsel for the Attorney General has not argued that the principle summarised by Lord Hobhouse requires revision. His concern was rather with the fact that the Court of Appeal treated the present case as exceptional and with the way in which the reasoning was expressed. The Attorney General apparently fears that the decision of the Court of Appeal may be a slippery slope to the virtual abandonment of the principle. Counsel for The Guardian also did not invite the House to consider any revision. For my part the principle as formulated is as necessary after the advent of the Human Rights Act 1998 as it was before. It must be maintained. Normally, the seeking of a declaration in a civil case about the lawfulness of future conduct will not be permitted. But in truly exceptional cases the court may allow such a claim to proceed. 21. The starting point must be that the relief claimed may as a matter of jurisdiction be granted. The Guardian do not have to demonstrate that they are "victims" under section 7 of the Human Rights Act 1998. That much is conceded and, in any event, obvious on proper view of the place of section 3 in the scheme of the Human Rights Act 1998. It is, however, worth noting the broad approach which the European Court of Human Rights adopts to the concept of victim. Thus in Norris v Ireland (1989) 13 EHRR 186 a homosexual man complained that the criminalisation of homosexual conduct in Ireland violated his article 8 right to respect for his private life, although he accepted that the risk of being prosecuted was remote. The court accepted that he was a victim. Even an administrative policy of not prosecuting for the offence in question would not have made a difference. For present purposes it is sufficient that The Guardian has an interest and standing. That is the threshold requirement. 23. The second criterion advanced is whether the case is fact sensitive or not. This is a factor of great importance and most claims for a declaration that particular conduct is unlawful will founder on this ground. In principle therefore I accept the approach of counsel for the Attorney General. But it has always been recognised that a question of pure law may more readily be made the subject-matter of a declaration: see Munnich v Godstone Rural District Council [1966] 1 WLR 427, cited with approval by Lord Lane (with whom Lord Edmund-Davies and Lord Scarman agreed) in Imperial Tobacco v Attorney General, at 751F-752A. It is clear as a pike-staff that there can be no issue of fact concerning either the incompatibility of section 3 of the 1848 Act with article 10 of the Convention or the court's decision under section 3 of the Human Rights Act. It is not a fact sensitive case. In my view The Guardian has satisfied this criterion. 24. The third criterion advanced by counsel for the Attorney General focuses on the question whether there is a cogent public or individual interest which could be advanced by the grant of a declaration. Bland was an example of an overwhelming interest of an individual in the grant of a declaration that the cessation of life-sustaining medical support was lawful. But the jurisdiction is in no way limited to life and death issues: Royal College of Nursing of the UK v Department of Health and Social Security [1981] AC 800. The Guardian alleges that some 25% of the population supports republicanism. The Guardian wishes to continue the debate. In words attributed to Voltaire the person on the Underground might say "I disapprove of what you say, but I will defend to death your right to say it". It may be a matter of constitutional importance. An historic anomaly in our political democracy could be examined by our courts. There is something to be said for the view that it ought not to be left to the court in Strasbourg to drag us to an obvious conclusion. V. Issue (2): The Decision of the Administrative Court. 27. But the House is not bound to follow the decision of the Administrative Court. VI. Issue (3): The Appropriate Order. 28. It is now necessary to look at the matter in the round. Ought the matter to be heard again by the Administrative Court? It would certainly be competent for the House to allow the case to go back. But what purpose would it serve? The part of section 3 of the 1848 Act which appears to criminalise the advocacy of republicanism is a relic of a bygone age and does not fit into the fabric of our modern legal system. The idea that section 3 could survive scrutiny under the Human Rights Act is unreal. The fears of the editor of The Guardian were more than a trifle alarmist. In my view the courts ought not to be troubled further with this unnecessary litigation. VII. Conclusion. LORD HUTTON My Lords, 31. It is upon this principle that the respondents, Mr Alan Rusbridger the Editor of The Guardian and Ms Polly Toynbee a prominent journalist of that newspaper, rely in these proceedings, the background to which has been fully described in the speech of my noble and learned friend Lord Steyn. They contend that there is uncertainty as to the meaning of section 3 of the Treason Felony Act 1848. They further contend that there is a risk that those who advocate in print the replacement of the monarchy by a republican form of government by peaceful and constitutional means might be prosecuted and be liable to imprisonment under that section and that this risk constitutes an infringement of their rights under Article 10 of the European Convention. They seek to uphold the decision of the Court of Appeal that the Administrative Court should rule on their application for a declaration that, consequent on the application of section 3 of the Human Rights Act 1998, section 3 of the 1848 Act does not make it an offence to publish views advocating that the Queen should be deprived of or deposed from the Crown by peaceful and constitutional means. "My Lords, it is not necessary in this case to decide whether a declaration as to the criminality or otherwise of future conduct can ever properly be made by a civil court. In my opinion it would be a very exceptional case in which it would be right to do so." And in R (Pretty) v DPP [2002] 1 AC 800, 851C Lord Hobhouse of Woodborough stated: "In exceptional circumstances it may be proper for a member of the public to bring proceedings against the Crown for a declaration that certain proposed conduct is lawful and name the Attorney General as the formal defendant to the claim. But that is not what occurred here and, even then, the court would have a discretion which it would normally exercise to refuse to rule upon hypothetical facts." 33. My Lords, whilst the respondents' submissions relate to principles of great importance in respect of the freedom of the press in a democratic society, I consider that when the actual facts of this case are considered it becomes apparent that those principles are not directly engaged and that the risk described by the respondents is, in the real world, non-existent. Nor is there any real possibility that "the chill factor" referred to by Lord Keith of Kinkel in Derbyshire County Council v Times Newspapers Ltd [1993] AC 534, 548D would operate. This is clearly shown by the passage in paragraph 21 of the judgment of the Court of Appeal delivered by Schiemann LJ which states: "We do not understand the claimants to suggest that the uncertainty of our law as to treason has affected their decision to publish in the past or is likely to in the future. Their stance is that of the Duke of Wellington: publish and be damned. Nor is there any evidence to suggest that the existence of the 1848 Act causes them to sleep in their beds less soundly." Therefore it is clear that the freedom of the respondents to express views and opinions and to impart ideas has not been hindered or impeded and that their rights under Article 10 have not been breached. "On the other side, there are powerful arguments in favour of free speech and also of having our criminal law formulated in such a way that the citizen can see what is prohibited and what is not. Of course there will always be borderline cases but it cannot seriously be contended that our many statutes dealing with treason which go back to 1351 but are still partly in force leave the law in a satisfactory state ." "No one has been prosecuted under the 1848 Act for over 100 years. Every few years Parliament passes a Statute Law (Repeals) Act which repeals outdated statutes. While bits of the 1848 Act were repealed in the 19th century other bits including the section with which we are concerned survive in part." "In 1998, 150 years later, the HRA was passed. Parliament chose, for reasons which are readily understandable, not to amend all Acts which might require amendment in the light of our obligations under the Convention but instead to leave the Courts to do what they can with the help of section 3 of the HRA ." "The Attorney General has chosen not to express his view as to the proper construction of the 1848 Act in the light of the HRA. Indeed we do not know if he has one. Neither he nor the Director of Public Prosecutions have indicated what prosecution policy is in relation to articles advocating republicanism in this country. The proper construction of the 1848 Act seems to us potentially relevant to the exercise by the Court of any discretion to make a declaration. We see room for a possible argument to the effect that section 3 of the 1848 Act is on its face incompatible with the HRA even if read in the light of s. 3 of the HRA and that it is in the public interest that this incompatibility be declared so that the remedial action in section 10 may be considered by the Home Secretary." "Our Courts have consistently acted on the view that it is their function in the ordinary run of contentious litigation to decide only live, practical questions, and that they have no concern with hypothetical, premature or academic questions, nor do they exist to advise litigants as to the policy which they should adopt in the ordering of their affairs. The Courts are neither a debating club nor an advisory bureau. Just what is a live practical question is not always easy to decide and must, in the long run, turn on the circumstances of the particular case." 36. As it is clear that any uncertainty as to the interpretation of section 3 of the 1848 Act has not affected the decision of the respondents to publish in the past and is not likely to affect their decision to publish in the future, I consider that the issue which the respondents have brought before the courts cannot be described as a live, practical question. In addition I wish to express my full agreement with the views of my noble and learned friends Lord Rodger of Earlsferry and Lord Walker of Gestingthorpe that it is not the function of the courts to keep the statute book up to date and that sections 3 and 4 of the Human Rights Act 1998 are not intended to be an instrument by which the courts can chivvy Parliament into spring-cleaning the statute book. LORD SCOTT OF FOSCOTE My Lords, 40. My Lords, I do not believe a word of it. It is plain as a pike staff to the respondents and everyone else that no one who advocates the peaceful abolition of the monarchy and its replacement by a republican form of government is at any risk of prosecution. Whatever may be the correct construction of section 3, taken by itself, it is clear beyond any peradventure first, that the section would now be "read down" as required by section 3 of the Human Rights Act 1998 so that the advocacy contemplated by the respondents could not constitute a criminal offence, and second, that no Attorney-General or Director of Public Prosecutions would or could authorize a prosecution for such advocacy without becoming a laughing stock. To do so would plainly be an unlawful act under section 6(1) of the 1998 Act. 43. It was, in my opinion, instructive that Mr Sales, counsel for the Attorney-General, told your Lordships that he had no instructions to make any submission about the merits of the respondents' section 3 point. If he had made any submission it could only have been to accept that, at least since 2 October 2000 when the Human Rights Act 1998 came into force, no one who advocates the abolition of the monarchy by peaceful and constitutional means has been at any risk of prosecution (other than a private prosecution) or of conviction. Mr Sales is a very good lawyer. So, too, is Mr Robertson QC. But you do not have to be a very good lawyer to know that to advocate the abolition of the monarchy and its replacement by a republic by peaceful and constitutional means will lead neither to prosecution nor to conviction. All you need to be is a lawyer with commonsense. 45. And so the case comes to your Lordships' House. My Lords the valuable time of the courts should be spent on real issues. I have already expressed my non-belief in the reality of the respondents' alleged fear of prosecution. I repeat it. I do not suppose there is any school debating society that has not regularly debated the issue of monarchy versus republic. Everyone who reads newspapers or magazines will have read numerous articles and letters extolling the advantages of a republic over a monarchy and advocating a change and vice versa, of course. These articles and letters have not led to prosecution or any threat of it. Nor have those responsible for school debating societies received visits from the Special Branch. This has been the state of affairs throughout my adult life but it is, I do not doubt, of longer standing than that. There has been no prosecution under the Act since 1883. The enactment and coming into force of the Human Rights Act 1998 made the tolerance de facto of advocacy of peaceful political change a tolerance de jure. LORD RODGER OF EARLSFERRY My Lords, 50. One of the things that it is an offence to compass etc in these ways is "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 ." If these words are read in isolation, they appear to make it an offence, punishable with life imprisonment, for anyone, including journalists and newspaper editors, to publish articles advocating a peaceful change from a constitutional monarchy to a republic in the United Kingdom. That is how the courts interpreted the words shortly after the 1848 Act was passed. Relying on section 3 of the Human Rights Act 1998 and article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, however, in these proceedings the claimants, Mr Rusbridger and Ms Toynbee, seek a declaration that section 3 of the 1848 Act should be read as applying only to compassing etc "by acts of force or constraint or other unlawful means" to deprive the Queen of her position. Alternatively, they seek a declaration under section 4 of the Human Rights Act that section 3 of the 1848 Act is incompatible with the right to freedom of expression in article 10 of the Convention. "We do not understand the claimants to suggest that the uncertainty of our law as to treason has affected their decision to publish in the past or is likely to in the future. Their stance is that of the Duke of Wellington: publish and be damned. Nor is there any evidence to suggest that the existence of the 1848 Act causes them to sleep in their beds less soundly." In other words neither any decision that the claimants take in their professional lives nor their general well-being is adversely affected by the existence of section 3 of the 1848 Act. In argument on their behalf Mr Robertson QC accepted this but - with understandable diffidence - suggested that section 3 might have subconsciously affected them in deciding on the tone of the articles. But for section 3, they might not, for instance, have proposed that a referendum should be held before any change to a republic. Nothing supports that implausible suggestion. Section 3 has no "chilling effect" on the claimants' freedom of expression. LORD WALKER OF GESTINGTHORPE My Lords, 61. In my opinion it is most undesirable that obsolete statutes should remain unrepealed. Quaint language and interesting historical associations are no justification for preserving obsolete statutes in a mummified state. But as the Attorney General replied to Mr Rusbridger, it is still the role of the legislature, rather than that of the courts, to decide whether to repeal or retain legislation. Sections 3 and 4 of the Human Rights Act 1998 are intended to promote and protect human rights in a practical way, not to be an instrument by which the courts can chivvy Parliament into spring-cleaning the statute book, perhaps to the detriment of more important legislation. Such a spring-cleaning process might have some symbolic significance but I can see no other practical purpose which this litigation would achieve. |