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

Factual and Procedural Background

Company A is a national newspaper. Its editor (Respondent 1) and a senior journalist (Respondent 2) wished to publish a series of articles advocating the peaceful and constitutional replacement of the monarchy with a republic. Aware of section 3 of the Treason Felony Act 1848, they wrote to the Attorney General (Appellant) in November 2000, seeking assurance that such publications would not attract prosecution. The Appellant declined to give any undertaking. Company A nonetheless published the articles on 6 December 2000.

On 16 February 2001 the Respondents issued proceedings seeking (i) declarations that the Appellant’s stance was unlawful, (ii) a declaration that section 3 of the 1848 Act must be read, pursuant to section 3(1) of the Human Rights Act 1998, as requiring an element of force or other unlawful means, or (iii) alternatively, a declaration that section 3 is incompatible with Article 10 of the European Convention on Human Rights.

The Administrative Court refused permission, holding that declarations of criminality or otherwise of future conduct are only appropriate in exceptional circumstances. The Court of Appeal disagreed in part, characterising the case as sufficiently exceptional and remitted it for determination of the declaratory relief sought. The House of Lords granted the Appellant leave to appeal.

Legal Issues Presented

1. What principles govern whether a civil court should entertain a claim for declaratory relief on a question of criminal law?
2. Was the Court of Appeal entitled to interfere with the Administrative Court’s refusal to entertain the Respondents’ claim?
3. In light of the answers to (1) and (2), should the Respondents’ claims for declaratory relief be allowed to proceed?

Arguments of the Parties

Appellant’s Arguments

• Declaratory relief regarding prospective criminal liability is permissible only in very exceptional cases; the present claim does not meet that threshold.
• The Respondents face no genuine or imminent threat of prosecution; therefore no live dispute exists.
• The matters raised are largely hypothetical and better left to Parliament, not the courts, to resolve.
• The Court of Appeal erred in overturning the Administrative Court because the latter exercised its discretion consistently with established principles.

Respondents’ Arguments

• Section 3 of the 1848 Act potentially criminalises peaceful republican advocacy, chilling freedom of expression protected by Article 10.
• The case concerns pure questions of law, not fact-sensitive issues, warranting declaratory guidance.
• There is a strong public interest in clarifying whether an archaic treason statute survives the Human Rights Act regime.
• If section 3 cannot be read down compatibly, a declaration of incompatibility should issue to prompt legislative action.

Table of Precedents Cited

Court's Reasoning and Analysis

Five Law Lords (Judge Steyn, Judge Hutton, Judge Scott, Judge Rodger and Judge Walker) delivered concurring opinions. The House reiterated the long-standing principle that civil declarations on future criminal liability are only available in exceptional circumstances. Applying that framework, the court:

• Observed that the Respondents faced no realistic threat of prosecution; section 3 of the 1848 Act has not been used since 1883 and would inevitably be “read down” or found incompatible with Article 10.
• Rejected the asserted “chilling effect” because Company A had published republican articles without consequence and intended to keep doing so.
• Classified the dispute as moot and largely academic; the courts are not forums for hypothetical questions or vehicles to pressure Parliament to reform obsolete statutes.
• Found the Administrative Court had been entitled to refuse declaratory relief; the Court of Appeal erred by treating the matter as exceptional without applying structured criteria.
• Emphasised that responsibility for repealing or amending outdated legislation lies with the legislature, not the judiciary, and that sections 3 and 4 of the Human Rights Act are not tools for routine “spring-cleaning” of the statute book.

Holding and Implications

APPEAL ALLOWED. The House of Lords quashed the Court of Appeal’s order and dismissed Company A’s application for declaratory relief. No order for costs was made in the courts below, but Company A was ordered to pay the costs of the appeal.

Implications: The decision re-affirms the narrow scope for civil declarations on prospective criminal liability and underscores judicial reluctance to adjudicate academic or hypothetical disputes. Although the Treason Felony Act 1848 remains formally on the statute book, the judgment signals that peaceful republican advocacy is not prosecutable, without creating new precedent in substantive criminal or constitutional law.