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.