THE debate regarding freedom of expression that has followed the Paris terrorist attacks, and the shootings in Copenhagen over the weekend, has raised significant questions of whether such a freedom is absolute; or whether such a freedom ought to be qualified.
Yet this debate is not new and the fact that it has resurfaced is evidence of the historical difficulty of balancing the freedom of expression against the desire to protect society and, in particular, a desire to shield against the transmission of views considered to be harmful – including racist, blasphemous or seditious ones.
While freedom of expression may now be a recognised human right in the UK, it is not without express qualification. Moreover, where words transgress what the legislature considers to be appropriate, they may often lead to a prosecution.
As a consequence the Press is only formally free at best.
One arcane and superfluous offence that remains on the Statute Book today is Section 3 of the Treason and Felony Act 1848.
This means that it is a criminal offence to “compass, imagine, invent, devise, or intend to deprive the Queen of her crown”, to “levy war against the Queen”, or “to move or stir any foreigner to invade the United Kingdom or any other country belonging to the Queen”.
This, in effect, means that even today it is a criminal offence to openly advocate the removal of the Crown and the creation of a republic.
In what is supposed to be a transparent constitutional democracy where the rule of law and freedom of expression are considered to be sacrosanct, how can we countenance that this offence still exists?
In 2003, the House of Lords considered an application for a declaration that the 1848 offence could not be used to prosecute a newspaper editor for the publishing or articles which advocated a republic.
The House of Lords held that such a declaration would not be lawful, and in any event, would not be necessary as there was in effect no reasonable prospect of conviction following the introduction of the Human Rights Act 1998. It was stated that the repeal of this legislation was something that only Parliament could provide for.
However, the legislation still has not been repealed some 10 years on, and yet there have been no prosecutions of those who openly advocate a republic; in fact there has not been a prosecution for this since 1883.
So why is this even an issue? Firstly, this offence should be repealed to ensure legal certainty so political activists, agitators and journalists know where they stand before the law.
Secondly, those who wish to espouse republican political beliefs should not have to rely on a police officer deciding not to investigate and prepare a case of treason. It should not be forgotten that police officers swear an affirmation to the Crown.
Nor should reliance be placed on the Crown Prosecution Service exercising discretion and choosing not to prosecute those who actively criticise the Head of State and, in turn, the patron of the organisation.
It is insufficient for those with republican views to have to rely upon the discretion of state agencies as to whether they will be prosecuted for publishing their political beliefs.
Thirdly, it is unattractive to have to resort to relying on a “human rights” defence, particularly when the current Government is advocating the repeal of the Human Rights Act 1998.
This is particularly the case as this offence could apply to such a broad range of conduct which is not directly criminalised under more specific legislation.
The laissez faire counter-argument is why bother with repeal when nobody has been prosecuted for this offence since the 1880s?
The answer is that by repealing this arcane offence, it removes any possibility of a person being arrested, investigated or prosecuted for simply expressing a political opinion unpopular with the executive.
Moreover, if the House of Lords is correct and there is no prospect of a conviction (and it undoubtedly is), then why should this offence remain on the Statute Book?
The repeal of this offence would be a symbolic gesture of some constitutional magnitude as it would be recognition of the sovereignty of Parliament, rather than Parliament’s feudal subservience to the Crown.
Above all, by removing a potential mechanism of tyranny, perhaps a sensible, lawful and open debate can be encouraged regarding the future governance of this country.
As the law currently stands, when it comes to publishing views regarding our Head of State, freedom of expression is on paper qualified – and not absolute.
• Nick Dent is a criminal defence and civil liberties solicitor from Nidderdale.