Utopia, you are standing in it!

Under the Treason Felony Act (1848), it is treason felony to “compass, imagine, invent, devise, or intend”:

• to deprive the Queen of her crown,
• to levy war against the Queen, or
• to “move or stir” any foreigner to invade the United Kingdom or any other country belonging to the Queen.

The act was passed in 1848, a year of revolutionary fervour across Europe. Its express purpose was to punish those who called for the establishment of a republic in Britain.

The act makes it a criminal offence, punishable by life imprisonment, to advocate abolition of the monarchy even by peaceful means. In 2013, the Ministry of Justice said:

Section 3 of the Treason Felony Act 1848 has not been repealed.

The last reported prosecution under the Act in the United Kingdom was in 1883, although the Act was used in Australia in 1916 to prosecute the “Sydney Twelve“.

In 2001, the Guardian initiated a legal challenge against the antique statute on the grounds that it prevented freedom of expression as guaranteed by the Human Rights Act 1998.

The law lords dismissed the newspaper’s case on the grounds that it was unnecessary. Lord Steyn explained:

“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 s3 could survive scrutiny under the Human Rights Act is unreal.” But, he added, courts should not be used as “an instrument … [to] chivvy parliament into spring-cleaning the statute book”.

The Guardian then noted that 327 other obscure offences had been subsequently spring cleaned from the British statute books including being an incorrigible rogue under the Vagrancy Act of 1824.

Her Majesty’s Attorney General for England and Wales made no submission on his prosecution policy to the House of Lords when the legal challenge was heard. But the Law Lords said if he had:

It could only have been to accept that, at least since October 2 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.

Lord Hutton said:

It is not the function of the courts to decide hypothetical questions which do not impact on the parties before them,

Lord Scott of Foscote said:

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. No attorney general or director of public prosecutions would or could authorise a prosecution for such advocacy without becoming a laughing stock. To do so would be an unlawful act under s6 (1) of the 1998 Act.

Lord Walker of Gestingthorpe said:

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 … it is still the role of the legislature, rather than that of the courts, to decide whether to repeal or retain legislation.

Lord Styen also said

…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.

His Lordship added that the passage of the Human Rights Act in 1998 had significant relevance to the interpretation of prior legislation:

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… 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.

The only risk under the Treason Felony Act 1848 is a rogue prosecution. The director of public prosecutions would take over such a prosecution immediately and offer no evidence. He has an absolute right to take over private prosecutions. As Lord Rogers said:

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.