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

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    25. I conclude that the present case may fall within the exceptional category. This does not, however, conclude the matter.

V. Issue (2): The Decision of the Administrative Court.

    26. Counsel for the Attorney General submitted that the Court of Appeal was not entitled to reverse the decision of the Administrative Court. He relied on the familiar principles summarised in Hadmor Productions Limited v Hamilton [1983] AC 191, at 220. The difficulty is, however, that neither the Administrative Court - nor for that matter the Court of Appeal - approached the case in the structured way, with reference to specific criteria, which I have been persuaded must be adopted. Dealing with the decision of the Administrative Court, I concentrate on the judgment of Rose LJ with whom Silber J agreed. In truth the motivation of Rose LJ is conclusionary in nature and not altogether easy to follow. He did not examine the argument that The Guardian is entitled to certainty. He did not consider the fact that the issues are of pure law. He did not take into account the constitutional import of the case. In fairness one must add that the argument before the House probably dealt with the criteria in somewhat more detail than was the case before the Administrative Court. The criteria applicable to determining whether a case falls in the exceptional category have now been clarified to some extent for future guidance.

    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.

    29. I would allow the appeal and quash the decision of the Court of Appeal. In the result the application of The Guardian is dismissed. I would further direct that there should be no order of costs below and that The Guardian must pay the costs of the appeal to the House.

LORD HUTTON

My Lords,

    30. The freedom of the press to express views and opinions on political and constitutional matters is a fundamental and central element in the life of a democratic society and is enshrined in Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

    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.

    32. In reply to the respondents' argument the Attorney General submits that a civil court should not give a declaratory judgment on an issue of criminal law save in an exceptional case, and that the present proceedings are not such a case. The Attorney General cites Imperial Tobacco Ltd v Attorney General [1981] AC 718, 742C where Viscount Dilhorne stated:

    "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.

    34. The reasons why the Court of Appeal remitted the case to the Administrative Court to give further consideration to the respondents' application for a declaration are stated in paragraphs 22 to 26 of their judgment. Parts of these paragraphs read as follows:

    "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."

    35. I respectfully dissent from this view expressed by the Court of Appeal. It is not the function of the courts to decide hypothetical questions which do not impact on the parties before them. This point was well put by Lord Justice-Clerk Thomson in Macnaughton v Macnaughton's Trustees [1953] SC 387, 392 :

    "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.

    37. Therefore for the reasons which I have given I would allow the appeal and quash the decision of the Court of Appeal.

LORD SCOTT OF FOSCOTE

My Lords,

    38. I have had the advantage of reading in advance the opinion of my noble and learned friend Lord Steyn and am in complete and respectful agreement with everything he has said.

    39. The respondents have said that they fear that if they advocate the abolition of the monarchy and its replacement by a republic, all by peaceful and constitutional means, they may be prosecuted for treason pursuant to section 3 of the Treason Felony Act 1848. They refer to the "chilling effect" that section has upon the freedom of expression guaranteed by Article 10 of the European Convention on Human Rights.

    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.

    41. Moreover, if a private prosecution, complaining of advocacy for the peaceful abolition of the monarchy and its replacement by a republic, were to be brought by some successor of the League of Empire Loyalists it would be the clear duty of the Attorney-General, in order to honour the right to freedom of expression guaranteed by Article 10 to issue a nolle prosequi — unless, of course, the Director of Public Prosecutions had exercised his power to take over and then discontinue the prosecution. It may be that if it were the respondents who were prosecuted they would welcome the prosecution and be anxious for the proceedings to come before a judge with the maximum of publicity. They must know that the prosecution would be bound to fail. The judge would have no alternative but to dismiss the case as hopeless.

    42. The respondents will have received legal advice about the prospects of such a prosecution being brought and about the prospects of its success. The advice is protected by the legal professional privilege to which they are entitled but, speaking for myself, I do not for one moment believe that they were advised that there was any risk of a prosecution or of a conviction.

    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.

    44. The Administrative Court, in dealing with the respondents' judicial review application, regarded the application, I rather think, as not worth taking seriously. I sympathise with them and do not criticize their dismissal of the application. They dismissed the application on the procedural ground that although civil courts have jurisdiction to make declarations as to the criminality or non-criminality of conduct, proposed or actual, it is a jurisdiction to be exercised only in exceptional circumstances. The respondents' section 3 point, said the Administrative Court, did not qualify. But they did not spell out that the reason why the point did not qualify was because it was so obviously and incontestably right that the time of the Court should not have been wasted in having to deal with it. The Administrative Court should, in my view, have dealt with the application either by dismissing it on the ground I have mentioned or by making the declaration sought but ordering the respondents to pay the costs of the unnecessary court proceedings. To dismiss the application on the procedural ground that the case did not fall within the exceptional circumstances category without making clear that the Emperor had no clothes led to the case coming before the Court of Appeal on the quite unreal footing that the Emperor was wearing some sort of costume that did require to be recognised and dealt with. The Court of Appeal, for its part, recognised the high constitutional importance of freedom of speech in a political context and sent the case back to the Administrative Court in order, as I infer, for there to be a formal recognition by that Court of what must have been obvious to the Court of Appeal, namely, that section 3 of the 1848 Act is a dead letter so far as advocacy of political change by peaceful and constitutional means is concerned.

    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.

    46. The Attorney-General, in his responses to the letters written to him by the respondents, said nothing to give them any reason to suppose that he did not share the views expressed above. He took his stand on the theoretical impropriety of assurances being given in advance about the non-criminality of hypothetical conduct. It might have been better if he had simply said that the United Kingdom is a mature democracy and in a mature democracy people do not get prosecuted for advocating political change by peaceful and constitutional means. If he had said that there would surely have been no litigation.

    47. Your Lordships, in dealing with the appeal have unanimously endorsed the lawfulness of such advocacy. The respondents may regard that endorsement as representing a successful outcome to their litigation. But if unnecessary litigation is commenced in order to obtain obvious results, the claimant must expect to have to pay the costs of the exercise. In my opinion the appeal should be allowed and the dismissal of the respondents' application affirmed. The respondents should pay the costs of the appeal to this House but there should be no order as to the costs below.

LORD RODGER OF EARLSFERRY

My Lords,

    48. I agree with your Lordships that the appeal should be allowed and that the order proposed by my noble and learned friend Lord Steyn should be made. Since he has fully described the background, I can state my reasons quite shortly.

    49. At the hearing before the House Mr Sales, counsel for the Attorney-General, was careful to make no submissions as to the proper interpretation of section 3 of the Treason Felony Act 1848 ("the 1848 Act"). I proceed on the basis, however, that a person commits an offence if he "shall compass, imagine, invent, devise, or intend" to do the various things listed "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…." In other words, the offender must not only compass etc the various things but must express, utter or declare such compassings etc by publishing a printing or writing or by an overt act or deed.

    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.

    51. The 1848 Act was passed to meet a perceived threat, particularly in Ireland, in the heated atmosphere of that year. Section 3 has not been used as the basis of a prosecution since R v Gallagher (1883) 15 Cox 291. This is despite the fact that across the intervening years many people of greater or lesser prominence in public life, from Members of Parliament, peers and other politicians to academics, journalists and media personalities, have published books, articles and interviews advocating a peaceful change from a monarchy to a republic. Support for a republic was the declared editorial policy of at least one national daily newspaper and one national Sunday newspaper long before The Guardian decided to publish its articles at the end of 2000. Needless to say, there has never been the slightest hint that any of these people would be prosecuted for publishing their views. This part of section 3 of the 1848 Act has long been a dead letter. Otherwise, it would surely have been amended so as to cover modern methods of communication.

    52. In an ideal world the statute book would always be up-to-date and contain only those Acts and provisions which are needed at present. In practice, that has never been the case. At any given moment you can find statutes which have become out of date and which should be repealed or amended but which linger on untouched since, in a crowded Parliamentary timetable, governments have had other priorities. Such statutes pose a familiar problem for those who have to decide whether to prosecute, especially when social circumstances have changed. Recent history provides examples. Should breaches of the Sunday trading laws be prosecuted when the shops appear to meet a public demand? Should corner shop owners be prosecuted if, to their customers' satisfaction, they stay open long after the statutory closing time, that was introduced to save fuel during the First World War? Should people be prosecuted for participating in consensual homosexual acts in private? When these and similar issues have arisen, prosecutors have done what they always do: they have had regard to the public interest in deciding whether to prosecute. See, for instance, paras 6.1- 6.3 of the Code for Crown Prosecutors issued by the Crown Prosecution Service. If the prosecutors mistake the public interest, any resulting prosecution is liable to provoke public criticism or even ridicule, while placing a martyr's crown on the defendant's head.

    53. This part of section 3 of the 1848 Act is another example of a provision whose time has long passed. Therefore, as one would expect, no prosecutions have been instituted under it for more than a century, despite the many publications advocating a peaceful change to a republican constitution. This inaction on the part of generations of prosecutors throughout the United Kingdom speaks louder than words. They long ago recognised that it would not be in the public interest to prosecute those who published such material. Indeed it seems unlikely that the possibility of prosecuting had even occurred to the relevant authorities for many years until Mr Rusbridger wrote to the Attorney-General. Inevitably, no prosecution followed. Equally clearly, there is not the slightest prospect that the claimants will be prosecuted if they choose to publish similar articles in future. Nor is the threat of a rogue private prosecution any more substantial, since the reality is that, having regard to the public interest, the Director of Public Prosecutions would take it over and discontinue it or the Attorney-General would enter a nolle prosequi.

    54. Unlike, I suspect, the vast majority of the population, the claimants have actually heard of section 3 of the 1848 Act and know what it says. But they also know that they will not be prosecuted for publishing their articles and so, as rational individuals, they are not adversely affected by the mere existence of section 3. In the Court of Appeal Schiemann LJ, giving a twist to the Duke of Wellington's famous challenge, described the claimants' attitude in this way, at para 21:

    "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.

    55. The claimants are, therefore, unaffected either in their actions or in their well-being by the existence of section 3. In both respects they are in a very different position from the applicant in Norris v Ireland (1989) 13 EHRR 186 who claimed that legislation penalising homosexual conduct infringed his article 8 rights. There the European Court of Human Rights emphasised that article 25 (now article 34) of the Convention requires that an individual applicant should be able to claim to be actually affected by the measure of which he complains. The Convention article may not be used to found an action in the nature of an actio popularis. The Court proceeded, at para 33, to identify reasons why the existence of the legislation actually affected Mr Dudgeon's activities and well-being, even though the more recent practice was for the Irish attorney-general not to authorise prosecutions based on conduct in private between consulting adults. In that situation a majority of the Court were prepared to regard Mr Dudgeon as a victim in Convention terms. By contrast, since there is no sign that the claimants have been affected in any way by the existence of section 3 of the 1848 Act, the present proceedings are in substance an actio popularis.

    56. Should these proceedings go ahead? The Divisional Court thought not, while the Court of Appeal thought they should. I agree with the Divisional Court. The claimants seek a declaration as to the interpretation of section 3 of the 1848 Act or as to its incompatibility with the right to freedom of expression under article 10 of the Convention. Before the House the parties agreed that these declarations should be treated in the same way as a civil declaration as to the criminality or otherwise of future conduct. A civil court can make such a declaration, although it would be right to do so only in a very exceptional case: Imperial Tobacco Ltd v Attorney-General [1981] AC 718, 742C - D per Viscount Dilhorne. The authorities do not spell out what constitutes a very exceptional case for these purposes. In ordinary cases people must take and act on their own legal advice. So, broadly speaking, a very exceptional case must be one where, unusually, the interests of justice require that the particular claimant should be able to obtain the ruling of the civil court before embarking on, or continuing with, a particular course of conduct which, on one view, might expose him to the risk of prosecution.

 
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