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Session 2002 - 03
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Judgments - Regina v Her Majesty's Attorney General (Appellant) ex parte Rusbridger and another (Respondents)


SESSION 2002-03
[2003] UKHL 38
on appeal from: [2002] EWCA Civ 397






Her Majesty's Attorney General (Appellant) ex parte Rusbridger and another (Respondent)



The Appellate Committee comprised:

Lord Steyn

Lord Hutton

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe




Regina v. Her Majesty's Attorney General (Appellant) ex parte Rusbridger and another (Respondent)

[2003] UKHL 38


My Lords,

    1. Behind the procedural questions brought before the House by the Attorney General lies the question whether the editor of a newspaper, who conducts a press campaign advocating the peaceful and constitutional replacement of the monarchy by a republican form of government, may be guilty of an offence under section 3 of the Treason Act 1848. The same question could be asked about the rights of an individual. The Attorney General has invited the House to concentrate on procedural issues with minimal reference to the ultimate question. Judges, however, ought not to work in the dark.

I. The 1848 Act.

    2. 1848 was the year of revolutions on continental Europe, but there was only one Chartist demonstration on 10 April 1848 in a relatively tranquil Britain. But there was a fear that the contagion of revolution, with its associations with the Terror after 1789, might spread to Britain. This was probably one of the reasons why Parliament passed the Treason Felony Act 1848. A further factor was that while the Treason Act 1351 applied to the whole United Kingdom it was unclear whether later statutes (such as the Treason Act 1795) extended to Ireland. Certainly Parliament was told that this was the principal mischief to be addressed. There was another objective. The Treason Statute of 1351 was still in place as it is in part to this day. The Treason Act 1795 was passed to facilitate the prosecution of constructive treasons: it did so by criminalising them as treasons. But juries were reluctant to convict defendants of what were sometimes perceived to be political charges but carrying the death penalty. The 1848 Act therefore provided that certain constructive treasons were to be felonies, punishable by life imprisonment. It did, however, specifically provide that conduct penalised by the 1848 Act could still be charged as treason. This is the relevant historical setting of the statute.

    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.

    4. The question has been raised whether section 3 makes punishable a press campaign to seek to persuade the British people to make a peaceful change from a monarchical form of government to a republican one. The way in which this point arises on the wording of the section can be briefly explained. Despite the quaintness of the language it is possible to divide the scheme of section 3 into (1) the compassing (contriving), etc., generally and (2) the compassing specifically by publishing etc., in order to -


to deprive the Sovereign of the Crown;


to levy war against the Sovereign;


to encourage foreigners to invade the United Kingdom.

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.

    5. It will be noted that in parts (b) and (c) identified above the use of force is expressly made a necessary ingredient of the offence. The question is whether it is also an ingredient of the offence contained in part (a). At first glance the language is wide enough to cover a press campaign advocating the adoption of a republican form of government by constitutional processes. If that is so, peaceful political debate on the virtues of republicanism is criminalised. The question could be posed whether this is the correct reading. Interpretation is not infinitely expandable; there is a Rubicon which may not be crossed. On the other hand, counsel for the Attorney General accepted that the 1848 Act must be construed as an always speaking statute in a modern democracy. In this context it may well be that the strong operative words "deprive or depose" import the idea of changing our form of government by unlawful force. If this interpretation is correct, the reason for the present litigation collapses at the threshold. For reasons which will become clear it is not necessary to express a view on this point.

II. The Human Rights Act 1998.

    6. The United Kingdom became a party to the European Convention on Human Rights in 1950. Its provisions are well known. The establishment and recognition of fundamental individual rights was its main aim but its preamble envisaged that this aim could only be established by creating conditions of "effective political democracy". Plainly that involved the idea that peaceful political debate about constitutional and governmental structures should be encouraged. Political free speech, criticising an existing form of government, was regarded as central to the development of European liberal democracies.

    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) . . .

      (6) A declaration under this section ('a declaration of incompatibility') -

      (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and

      (b) is not binding on the parties to the proceedings in which it is made."

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.

    12. On 22 June 2001, the Administrative Court sitting as a Divisional Court (Rose LJ and Silber J) held that there was no decision made by the Attorney General which was susceptible to challenge. In any event, the Administrative Court held that it was "not … appropriate for declarations as to the criminality or otherwise of conduct to be made, save in exceptional circumstances, and certainly not, generally speaking, before the conduct has itself occurred". The Administrative Court refused The Guardian's application for permission to pursue their claim insofar as it was properly to be characterised as a judicial review claim and, in the alternative, struck out the claim. Permission to appeal was refused.

    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".

    14. In its judgment of 20 March 2002, the Court of Appeal formally refused the application for permission to appeal against the Administrative Court's decision to refuse to grant permission for the judicial review claim to proceed. However, the Court of Appeal held that The Guardian should be allowed to proceed with both their claim for a declaration on the proper construction of section 3 of the 1848 Act and their alternative claim for a declaration of incompatibility. Giving the judgment of the court Schiemann LJ observed (at para 27):

    ". . . 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.

    15. On 23 July 2002, the House granted leave to appeal to the Attorney General. The questions which are now before the House are as follows:

    (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.

    16. The general principle has often been stated that, save in exceptional circumstances, it is not appropriate 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. This principle was discussed in Imperial Tobacco Limited v Attorney General [1981] AC 718. That case, however, involved an attempt to obtain a declaration in the face of pending criminal proceedings which were properly launched and were not vexatious. Here there are no criminal proceedings pending or threatened. All that need be said about the actual decision of the House in Imperial Tobacco is that it was based on the paradigm for the application of the restrictive principle. Viscount Dilhorne did, however, express himself more generally. He observed (742C-D):

    "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.

    20. In a powerful speech counsel for the Attorney General observed that a more structured approach to what may constitute exceptional circumstances was required. He invited the House to examine the criteria which may be relevant to a decision whether a particular case falls within the exceptional category or not. Such a decision is not an entirely discretionary matter: rather it involves an exercise of judgment. I agree that the applicable criteria ought to be examined.

    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.

    22. I now turn directly to the matters, which counsel for the Attorney General invited the House to spell out. He put forward three criteria. The first was the absence of any genuine dispute about the subject matter. This objection must be realistically approached. There would be a dispute if the Attorney General threatened to prosecute. In that event it would be said that no claim for a declaration is possible because there is an imminent threat of prosecution. On the other hand, if in accordance with present practice the Attorney General simply declines to indicate any view, there is no dispute. But that cannot by itself conclude the matter or be a weighty criterion if there are otherwise good reasons to allow the claim for a declaration to go forward. It is not a significant factor militating against placing the present case in an exceptional category. Unfortunately, the oral debate in the House concentrated on the wrong target. Counsel for The Guardian relied on what he termed the chilling effect of section 3 of the 1848 statute. Given that the editor did publish articles advocating a republic, the argument was threadbare. Clearly, the editor of The Guardian has not slept uneasily in his bed for fear of being prosecuted under section 3 of the 1848 Act. But The Guardian may be entitled to seek certainty by pursuing its claim for declaratory relief. In that event the outcome may be that a declaration is unnecessary as was the case in Attorney General v Able and Others [1984] QB 795. The Court of Appeal has not foreclosed such a conclusion.

    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.