Rusbridger & Anor, R (on the application of) v Her Majesty's Attorney General

The House of Lords considered whether a civil court should grant declaratory relief about the criminality of proposed future conduct under the Treason Felony Act 1848, section 3, in the light of freedom of expression under Article 10 of the European Convention on Human Rights and the interpretative obligation in section 3 of the Human Rights Act 1998. The court reaffirmed the established principle that civil declarations about the criminality of future conduct are permissible only in exceptional circumstances and articulated three relevant criteria: (1) whether there is a genuine dispute or threat of prosecution, (2) whether the issue is fact-sensitive or purely legal, and (3) whether there is a cogent public or individual interest in a declaration.

Applying those criteria, the House held that the applicants had not shown a live risk of prosecution (no prosecutions under section 3 since 1883 and prosecutorial practice made any realistic threat negligible), the issues were principally pure law, but the claim did not satisfy the necessary exceptional public interest: the matter was moot for the applicants and unnecessary for the courts to decide. The court therefore allowed the Attorney General's appeal, quashed the Court of Appeal's order and dismissed the Guardian's application. Although the judges considered that section 3 of the 1848 Act is a relic and would be read down to exclude peaceful republican advocacy under the Human Rights Act, the House declined to make a declaratory ruling on the merits because the case was unnecessary and not a proper exceptional case for relief.

The Guardian newspaper (editor Alan Rusbridger and journalist Polly Toynbee) sought declaratory relief after proposing a series of articles advocating abolition of the monarchy by peaceful constitutional means. They asked the Attorney General to state whether a prosecution might follow under section 3 of the Treason Felony Act 1848. The Attorney General declined to give an assurance, and no prosecution followed. The Guardian brought proceedings seeking (i) declarations that certain Attorney General decisions were unlawful under section 6 of the Human Rights Act 1998, (ii) a declaration that, read with the Human Rights Act, section 3 of the 1848 Act does not apply to peaceful advocacy unless intended to be achieved by force or other unlawful means, and (iii) alternatively a declaration of incompatibility under section 4 of the Human Rights Act.

Procedural history: the Divisional (Administrative) Court refused permission (June 2001); the Court of Appeal (March 2002) allowed the amended declaratory claim to proceed and remitted it to the Administrative Court; the Attorney General obtained leave to appeal to the House of Lords.

Issues framed by the House were: (1) the principles governing whether a civil court should entertain a declaratory claim on criminal law; (2) whether the Court of Appeal was entitled to interfere with the Administrative Court; and (3) whether the Guardian's remaining declaratory claims should proceed.

The House analysed precedent and identified structured criteria for exceptional cases (absence or presence of a genuine dispute/threat, fact-sensitivity, and cogent public or individual interest). It concluded that while the issue involves important public law and Convention considerations and is one of pure law, the applicants were not genuinely at risk of prosecution (section 3 had long been a dead letter and would in practice be read down under section 3 HRA to protect Article 10 rights). The litigation was therefore unnecessary; the Court of Appeal was wrong to remit the matter for further consideration. The House allowed the Attorney General's appeal, quashed the Court of Appeal decision and dismissed the Guardian's application, ordering the Guardian to pay the House of Lords costs and no order as to costs below.

Appeal allowed. The House quashed the Court of Appeal's order and dismissed the Guardian's application. The court reaffirmed that civil declarations about the criminality of future conduct are available only in exceptional circumstances and set out three relevant criteria (genuine dispute/threat, fact sensitivity, cogent public/individual interest). Applying those criteria, there was no realistic threat of prosecution under section 3 of the Treason Felony Act 1848 (a provision described as a relic or 'dead letter') and the claim was not the kind of exceptional case warranting declaratory relief; accordingly the Court of Appeal's remit was unnecessary and was quashed. The House did not make a determinative ruling on the precise construction of section 3 but indicated it would be read down by the Human Rights Act so as not to criminalise peaceful constitutional advocacy.

The claim was first considered by the Administrative Court (Divisional Court: Rose LJ and Silber J) which refused permission on 22 June 2001. The Court of Appeal [2002] EWCA Civ 397 (judgment 20 March 2002) allowed the amended declaratory claim to proceed and remitted it to the Administrative Court. The Attorney General obtained leave to appeal to the House of Lords, which granted permission and heard the appeal, resulting in this judgment [2003] UKHL 38.