As long as pabloquema isn’t plotting the Queen’s death, Anna Fairclough is confident he can avoid prosecution for treason

pabloquema asks:

As a subject of the British crown, how do I call for the abolition of the monarchy without risking the noose?

To keep this reply reasonably short, I am going to assume that you are not actually advocating or plotting the Queen’s death, which could amount to treason, carrying a penalty of life imprisonment (in addition to the penalties for any other offences you may commit).

Probably more to the point is section 3a of the Treason Felony Act 1848, which makes it an offence for any person (British subject or not) to call for the abolition of the monarchy. The wording of the act is as follows:

. . . 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 section can be explained in reasonably plain English as prohibiting:

1. compassing (contriving) etc generally; and

2. compassing (contriving) by publication, in order:

(a) to deprive the monarch of the Crown; or

(b) to levy war against the monarch; or

(c) to encourage foreigners to invade the UK.

It remains an open question whether calling for abolition of the monarchy by peaceful means would fall foul of (a) above, or whether only those calling for abolition by the use of force would be caught. That question came before the House of Lords in a 2003 case brought by the Guardian’s editor Regina v Her Majesty’s Attorney General (Appellant) ex parte Rusbridger and another (Respondents) but the Lords declined to decide it because, since no prosecutions under section 3 have been brought since 1883, and none were threatened, the court felt that the question was purely theoretical, and it was not the function of the courts to bring the statute book up to date.

Section 3 above would certainly appear to prohibit peaceful political debate on the virtues of republicanism. Whilst refusing to decide the point, Lord Steyn in the Rusbridger case explained that “The part of s3 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 s3 could survive scrutiny under [the Human Rights Act 1998] is unreal”. If such a case were ever to be prosecuted, then, it is very likely that section 3 of the 1848 act would be reinterpreted using the Human Rights Act 1998 so as to give proper weight to the rights protected by article 10: the right to freedom of expression.

Article 10 is not an absolute right, so interferences with freedom of speech can be justified provided they meet the criteria laid down in article 10(2). Broadly, this means that interferences need to be governed by a clear and accessible law; pursue one of the legitimate aims listed in 10(2) (such as national security, public safety, the prevention of disorder or crime, the protection of health or morals, the protection of the reputation or rights of others); and be proportionate to the aim pursued.

A comparison might be drawn with the fairly recent case of R (on the application of Green) v City of Westminster Magistrates Court (2007) in which a Christian group sought unsuccessfully to bring a private prosecution for blasphemous libel – another archaic offence – against the BBC and the production company of Jerry Springer – the opera. The court considered whether the existence of the offence of blasphemy breached article 10, and decided that it did not, but only because blasphemy should be understood to be criminal only “if what is done or said is such as to induce a reasonable reaction involving civil strife, damage to the fabric of society or their equivalent.” It would not be enough to show that “some people of particular sensibility are, because deeply offended, moved to protest.” Rather, “what is necessary to make such material a crime is that the community (or society) generally should be threatened.” The test here is set so high that it is hard to envisage what behaviour would be criminal – and the offence of blasphemous libel was in any event promptly repealed following this case.

Finally, you might be relieved to see from the wording of the section above that the penalty for calling for the abolition of the monarchy is not the noose, but merely being transported beyond the seas for the remainder of your natural life. Whilst that might not sound so bad, unfortunately successive legislative changes mean that the penalty would now be life imprisonment. Even if it were the noose, you could rely on the Human Rights Act again, because, by incorporating article one of the thirteenth protocol, the death penalty is prohibited in the UK.

So to sum up: if you are unlucky enough to be the first person prosecuted for calling for the abolition of the monarchy since 1883, you could argue that your prosecution breaches your right to freedom of expression, and if your campaign is peaceful you are virtually certain to succeed. If youadvocate the use of violence, or some particularly heinous means of deposing Her Majesty, you might face more difficulty as well as potentially committing other offences at the same time, including sedition (vilifying or degrading the Queen with intent to cause violence). Whatever happens, you won’t face the noose.

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