Will we discover when the Queen can be required to give evidence in court? – Robin Callender Smith

9 07 2019

The Government has been ordered to disclose information that will address the long-running Regina v Regina constitutional conundrum: when can the Queen, as reigning monarch, be asked or required to give evidence in her own courts?

Depending on the answer then Prince Charles, when he succeeds to the throne, may face summonses to compel his appearance as a witness in a variety of issues with which he has been involved over the years.

The Information Commissioner’s recent decision will be seen as a blow to the royal family. It has increasingly controlled and limited how much information is available about it. In 2010, the Queen and close family members including Prince Charles and Prince William, benefited from a change in the Freedom of Information Act 2000 (FOIA). This came, with scant Parliamentary scrutiny and no public debate, 10 years’ after the Queen herself signed the original ground-breaking FOIA into law.

The change, to s.37 of FOIA, was inserted into the Constitutional Reform and Governance Act 2010 in the dying days of Gordon Brown’s premiership. It removed the Sovereign and her immediate successors from FOIA requests absolutely without the balancing factor of the public interest test that had previously existed.

During the notorious trial of Paul Burrell in 2002, for theft of Princess Diana’s property, it became clear that Burrell had talked directly to the Queen about his “safekeeping” of items and documents belonging to Princess Diana. Burrell’s defence team considered whether the Queen could be called to confirm this but, before they could do so, William Boyce QC for the prosecution suddenly offered no evidence in a trial that ran for over two weeks and cost the public over £1m.

At the time the Director of Public Prosecutions, Sir David Calvert-Smith, said

“I am reasonably clear Her Majesty would be competent to give evidence should she wish to. The question is, if she did not wish to, could she be compelled to do so? That is an issue to which I cannot give an authoritative answer.”

The legal position of the sovereign giving, or being required to give, evidence in court has been an unresolved constitutional issue since the Queen’s great-grandfather, George V, was accused publicly in 1911 of bigamy. A successful criminal libel prosecution followed in which the King was advised that he could not give evidence himself, despite wanting to appear as a witness in the trial.

Frederick Mylius, a 32-year-old Belgian born British journalist who conducted his own defence, was prosecuted by the Crown’s two Law Officers: Attorney General, Sir Rufus Isaacs KC, and Solicitor General Sir John Simon KC. Mylius was convicted after a one-day trial before the Lord Chief Justice, Lord Alverstone, and a special jury at the High Court. He was sentenced to 12 months’ imprisonment.

That “Mylius” advice was repeated in 1937 by the Attorney General, Sir Donald Somervell, in respect of Edward VIII during Wallis Simpson’s divorce from her husband. This discouraged questions from the King’s Proctor, Sir Thomas Barnes, when he was investigating for the High Court whether there had been adultery or collusion between Wallis and the King which – if proved – would have prevented the final divorce decree being granted in 1937.

The last time an English sovereign appeared in court was Charles I in 1649, with terminal consequences.

The FOIA decision by the Information Commissioner requires the CPS to reveal the legal advice it received about what it can and cannot compel the Sovereign to do in terms of calling her as a witness in court proceedings. It was triggered by a FOIA request which I made. I am a former FOIA and Data Protection Appeals Judge and royal privacy specialist.

I asked the CPS to disclose the legal grounds contained in any “Treasury Counsel’s Opinion on the discontinuance of the trial of Paul Burrell at the Central Criminal Court in 2002”. The CPS refused, claiming that the public interest in maintaining legal professional privilege (LPP) outweighed the public interest in disclosing the information.

Rejecting this, the Information Commissioner stated that the CPS confirmed that it had the information and that the legal note prepared 17 years ago is still current. There was a

“strong public interest in understanding the advice, which the CPS received in compelling the Sovereign to appear as a witness in criminal proceedings, which is still considered current”.

Other reasons were that the CPS was expected to be transparent about its approach to criminal proceedings and that the note did not related to the Queen as an individual.

“In the circumstances of this particular case, there is a stronger public interest in the public knowing about the competency and compellability regarding whether the Sovereign can be called as a witness in court proceedings.

The CPS has until 23 August 2019 to hand over the information or appeal the decision to the Information Rights Tribunal.

Robin Callender Smith is Professor of Media Law at the Centre for Commercial Law Studies, Queen Mary, University of London. His book ‘Celebrity and Royal Privacy, The Media and the Law’ was published by Sweet & Maxwell in December 2015.

 


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3 responses

9 07 2019
Alan M Dransfield

I think the Queen might be a little pissed .orf with Lizzie Denham, hence we might have a new Information Commissioner soon.
This is only one choice for the job and that’s the Vexatious King of England Alan M Dransfield

29 11 2019
Tony Adler

only royal to appear as a witness in Court in modern times was the Prince of Wales, heir of Queen Victoria , who became King Edward VII in 1903. He featured in two trials; the Mordaunt Case in 1870 and the Tranby Croft Affair in 1891

Lady Mordaunt was sued for divorce by her husband after confessing that she had taken several lovers among whom was the Prince of Wales. The royal heir was subpoenaed to appear as a witness when the case came to Court and his seven minute appearance culminated in a pretty direct question ‘Has there been any immoral or criminal act been any between yourself and Lady Mordaunt ‘ .Predictably his response was ‘There has not ‘ . It was claimed in Court that Lady Mordaunt was mentally ill and the Judge suspended the hearing until she regained her faculties. It was unclear whether her symptoms were genuine or faked but she ended up spending the remaining 30 years of her life in an asylum in Chiswick

The second case concerned a house party at Tranby Croft , near Doncaster, where an army officer, Sir William Gordon-Cummings was accused of cheating at baccarat by five fellow players. The Prince of Wales , who was also in attendance, persuaded Gordon-Cummings to sign a confidential document admitting that he cheated and would never gamble again. However the existence of the document later became public knowledge and Gordon-Cummings sued the other five players for slander. The Prince was called as a witness when the case came to Court where he claimed that, as banker, he had not personally observed anything untoward. SIr William lost his action and spent the rest of his days as an outcast after being forced to resign his commission in the army. However the Prince did not come out of it well and Queen Victoria obliged her son to write a letter condemning gambling despite fact he was seen placing bets at Ascot on the last day of the Court case.!

There was an implication in both cases the Prince could have used the royal prerogative to refuse to act as a witness and the issue of whether the monarch himself could be summoned as a witness came up soon after Edward VII’s son succeeded him as George V in 1910. With the backing of Winston Churchill, then Home Secretary, the King took legal action against a Belgium born Republican, Edward Mylius , who had distributed a magazine in which the new King was accused of committing ‘shameless bigamy and foully deserting his true wife’ . It was alleged that he had married the future Queen Mary despite the fact he had already contracted a secret marriage in Malta with the daughter of an Admiral. But when Mylius stood trial for criminal libel at Old Bailey his demand for the presence of the King in the witness box on the grounds that that every accused person has the right to confront his accuser in Court was rejected by the Judge who simply stated ‘You may take the law from me’

This was taken as a precedent in 1937 when the prospect arose that the new King, Edward VIII, might be called as a witness in the divorce proceedings of Wallis Simpson. And the precedent was of particular relevance sixty- five years later because it enabled the Queen to effectively halt the trial of Paul Burrell for stealing Princess Diana’s property in the knowledge that she would not have to appear in Court . Her Majesty’s sudden recollection that she had allowed Burrell to keep certain papers belonging to the Princess was deemed to have fatally undermined the Prosecution case and the leading constitutional expert, Lord St John Of Fawsley , was clear that the Mylius case has established that the monarch could not be called as a witness. However the issue is still being debated and this year the Information Commissioner asked the CPS for the advice they gave during the Burrell case on whether the Queen could serve as a witness. It has not yet been forthcoming!

I hope you find this of interest

Tony Adler

24 12 2019
Tony Adler

I recently sent the letter below to the Queen on the subject of a possible royal cover-up concerning the bigamy of King George V.
I posed the question as to whether Her Majesty agreed with the BBC’s History Of Scandal Website’s assertion that “Of course, the bigamy story was quite untrue”?’
The reply from Buckingham Palace was as follows : ‘ I am writing in response to your recent letter and to say that your views have been noted ‘.

LETTER TO THE QUEEEN (October 2019 )

Her Majesty the Queen, Buckingham Palace, London SW1A 1AA

Madam ,

I have been investigating the circumstances surrounding the engagement of your grandparents King George and Queen Mary on 3 May 1893 and believe there may have been a cover-up of the fact that the then Duke of York was already married at the time. If so he would have been guilty, when he married Princess May two months later, of what the republican ‘Liberator’ Magazine later described as ‘sanctified bigamy’.
The English distributor of ‘The’Liberator’ , Edward Mylius, was taken to Court in February 1911 and sentenced to 12 months imprisonment for criminal libel. Yet if the bigamy claims proved to be true it would mean that George V’s children, King Edward VIII and King George V1, were illegitimate and none of his descendants had a right to the throne which should instead pass to the Duke of Fife, the direct descendant of the King’s elder sister Princess Louise.
My view is that the royal family have always been aware of the facts in this matter and so I wonder if Your Majesty agrees with the BBC’s History Of Scandal Website which states ‘ Of course the bigamy story was quite untrue’ .
I also find it puzzling, as did Queen Victoria, that there was no rebuttal of the article which broke the story of the Duke of York’s secret marriage and a strange coincidence that his mother, Princess Alexandra, arrived on Malta three days later. Was her purpose, as the royal biographer David Duff speculated, ‘to kill off the rumours’ ?
I look forward to receiving Your Majesty’s response.
Your humble and obedient servant

Tony Adler

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