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

A civil court may declare whether proposed conduct would be criminal, but such relief is normally refused. It is reserved for truly exceptional cases. Relevant matters include standing, the practical dispute, factual sensitivity and a cogent public or individual interest.

Relief remains discretionary even where those features favour a hearing. It may be refused where the lawfulness of the conduct is clear and adjudication would serve no live or useful purpose.

Political speech advocating peaceful constitutional change is protected by article 10. Section 3 of the Treason Felony Act 1848 must be read under the Human Rights Act 1998 so that such advocacy is not criminal. Human-rights procedures are not mechanisms for abstract reform of obsolete legislation.

The respondents were the editor of The Guardian and one of its journalists. They intended to publish, and subsequently published, articles advocating the peaceful and constitutional replacement of the monarchy by a republic. The Attorney General declined to assure them that no prosecution would be brought under section 3 of the Treason Felony Act 1848, although no prosecution followed.

They sought declarations that the Attorney General had acted unlawfully, that section 3 of the Human Rights Act 1998 required the 1848 provision to be read as applying only to force, constraint or other unlawful means, or alternatively that the provision was incompatible with article 10.

The Administrative Court refused permission for judicial review and alternatively struck out the claim. The Court of Appeal, [2002] EWCA Civ 397, refused permission concerning the alleged decisions but allowed the construction and incompatibility claims to proceed. The Attorney General appealed on whether a civil court should entertain declaratory proceedings about criminal law and whether this claim should continue.

1. Disposition. The House unanimously allowed the Attorney General’s appeal, quashed the Court of Appeal’s order and dismissed the respondents’ application. The proceedings should not return to the Administrative Court.

2. Declaratory jurisdiction. Per Lord Steyn, whose reasoning was adopted by Lord Scott of Foscote and Lord Walker of Gestingthorpe, a civil court has jurisdiction to declare whether proposed conduct would be criminal. It should normally refuse to exercise that jurisdiction. Only a truly exceptional case may justify a ruling before the claimant embarks on or continues conduct carrying an arguable risk of prosecution.

3. Exceptional circumstances. Lord Steyn treated the decision as an exercise of structured judgment. Sufficient interest and standing are threshold requirements; status as a victim under section 7 of the Human Rights Act 1998 is unnecessary for a claim relying on its interpretative machinery. The absence of a formal dispute is not conclusive. A pure question of law is more suitable for declaration than a fact-sensitive controversy, and a cogent public or individual interest may favour relief. Those considerations meant that this claim could fall within the exceptional category, but they did not compel the court to entertain it.

4. No useful purpose. Lord Steyn concluded that further litigation was unnecessary because the legal position was clear. Lord Scott and Lord Walker agreed. Lord Hutton and Lord Rodger of Earlsferry also allowed the appeal, placing greater emphasis on the absence of any genuine risk, chilling effect or live practical question. A court need not determine an academic issue merely because the relevant criminal provision is obsolete or unlikely ever to be tested by prosecution.

5. Peaceful republican advocacy. Per Lord Steyn, political expression is a core value protected by article 10. Section 3(1) of the Human Rights Act 1998 imposes a strong duty of compatible interpretation, although it cannot contradict express statutory words or necessary implication. Any reading of section 3 of the Treason Felony Act 1848 that criminalised peaceful and constitutional republican advocacy would be incompatible with article 10 and had to be read down. Lord Scott stated expressly that such advocacy could neither constitute an offence nor lawfully support a prosecution. Lord Walker agreed that invocation of the provision for that purpose was inconceivable.

6. Order. There was no order for costs below. The respondents were ordered to pay the costs of the appeal to the House.

• House of Lords: In [2003] UKHL 38, unanimously allowed the Attorney General’s appeal, quashed the Court of Appeal’s order and dismissed the application.
• Court of Appeal: In [2002] EWCA Civ 397, refused permission to appeal concerning the alleged decisions of the Attorney General, but allowed the claims for construction and incompatibility declarations to proceed and remitted them to the Administrative Court.
• Administrative Court, Divisional Court: Refused permission to pursue the judicial review claim and alternatively struck out the claim. It considered that civil declarations concerning criminality were inappropriate outside exceptional circumstances.