Prosecuting the monarch: a whistle stop tour of the legal difficulties
Imagine if, one day, Her Majesty went on a crime spree.
We don’t need to worry about why she did it. Maybe it was a final, infuriating comment from Phillip. Maybe she started seeing her own face everywhere, on stamps, currency, and just snapped. Maybe it was simply old age.
But just imagine if, one frosty autumn morning, the Queen decided to walk into her nearest Barclays branch, hunting rifle under her arm, and demand that the cashier fill a bin bag with everything behind the counter marked Elizabeth R.
For the sake of argument, let’s say no one was killed in the ensuing police chase, but that our monarch left behind a trail of destruction: giving the police ample evidence of robbery, dangerous driving, damage to property, assault, arson, and impersonating a police constable.
Imagine now that you’re DCI Smith, Royal Deeside branch, and you have all this evidence before you. Your suspect has even confessed: she had a jolly great time. How, legally speaking, could you begin to prosecute our head of state?
Most people know that as a general rule, the Queen can’t be prosecuted. While this may rile republicans, it is actually the norm for heads of state to enjoy this substantial legal privilege, at least while they’re in office. You would have a hard time bringing a case against any sitting head of state under domestic criminal law, because they enjoy a number of customary immunities, both at home and abroad. There are sensible practical reasons for this, not least of which is preserving the dignity of the office. It would be very embarrassing for the nation if, for instance, it came out in court that our head of state had illegally downloaded Burial’s back catalogue.
If you’ve studied public international law before, you’ll know that immunities of government officials are a standard part of the syllabus, and a difficult part at that.
Immunity has the rare distinction among international law subjects of being both tricky and occasionally relevant to the real world. Great news for international law researchers like me, because it means that we occasionally get asked about immunities by real lawyers. Such queries are a welcome distraction from the endless river of funding applications, article rejections and passive-aggressive blog posts dissing other researchers’ theories (though if you are reading this, John, I maintain that your assertion on ‘EJIL: Talk!’, namely that the Responsibility to Protect has attained legally binding customary status by virtue of recent state practice in the Middle East, is questionable at best. See my own blog post on the same subject, ‘A Rejoinder to John’s Interesting New R2P Theory: Two Thoughts on Methodology in IL Research,’ forthcoming.)
But I digress. There are many kinds of immunity in public international law, and the overlapping relationship between them baffles LLB students and judges alike: see, for example, Pinochet no 2 (1999), in which Lord Browne-Wilkinson was so out of his depth the judgment reads like a transcript from a Liz Truss select committee appearance.
In our Queen-on-a-rampage scenario, however, all the alleged crimes have been committed at home. Therefore, while international law might still help us later, our starting point is a related legal principle in domestic law, sovereign immunity.
Sovereign immunity is a customary principle, under which the Queen and the criminal law simply don’t mix. It was last tested in court in 1911, when King George V was accused of bigamy: the Lord Chief Justice decided that the King could not be ordered to give evidence, and that was the end of that.
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It isn’t just immunity from criminal prosecution the Queen enjoys under this principle: no questioning as part of a criminal investigation, no police interviews, and certainly no cross-examination. Basically, the only way the Queen can get near a courtroom is if she’s opening it. As for the other royals, while they don’t enjoy the Queen’s final boss-level immunity, it is notable that criminal proceedings with even a whiff of royalty tend to follow the same pattern: they stagger along under the weight of heavy media restrictions before collapsing completely, never to be spoken of again.
Are there any ways to get through the Queen’s seemingly-impenetrable immunity from prosecution?
One option might be parliament. Parliament can legislate as it pleases, so it could always change a customary rule, even one as old as sovereign immunity. However, it might be hard to persuade the Queen to give royal assent to a bill allowing herself to be prosecuted.
This is where international law might be able to help. In particular, international criminal law has no qualms about prosecuting heads of state, both former and sitting. The current Kenyan President Uhuru Kenyatta spent much of spring 2016 hopping between his presidential duties in Kenya and his trial in the Hague for crimes against humanity, which must have made for some interesting day itineraries.
If we went down the international route for prosecuting the Queen, one option is the ready-made International Criminal Court (ICC) in the Hague, which has the benefits of a shiny new building and a simple requirement of a government referral to start an investigation. Alternatively, we could set up a bespoke international tribunal, like the one that prosecuted former Yugoslavian President Slobodan Milošević in 2002, also in the Hague.
Milošević’s trial is a particularly interesting precedent, because he refused to accept the authority of the tribunal from the outset. I used to work in a secure prison before going into research, and on the wings a common tattoo read ‘only God can judge me.’ A nice thought, but it didn’t do much for the prisoners in question, and the same attitude didn’t help Milošević. His trial proceeded anyway, though he did die of a heart attack before its conclusion (make of that what you will).
However, even if the government felt like sending the Queen on a Dutch holiday, in our scenario none of her alleged crimes reach the threshold for an international crime. Under the ICC statute, the court can only prosecute someone for genocide, crimes against humanity, war crimes, and aggression. Worth knowing, but doesn’t fit our scenario here. As for other international courts and tribunals, it’s true that they aren’t always squeamish about ruling on domestic legal issues, as anyone working in international arbitration will tell you. But there does, generally speaking, have to be some ‘international’ element to justify international legal proceedings.
So no act of parliament, and no international mechanism that fits. Is DCI Smith stuffed?
Perhaps not, if he can summon the spirit of ’49. 1649, that is, which is our only precedent for the criminal prosecution of a British head of state.
Following a lengthy civil war, Oliver Cromwell and friends set up a court in 1649 to try and execute Charles I. In my measured academic opinion, Charles was basically asking for it, but the legal authority of the tribunal was a sticky issue at the time, because Charles kept to the 17th century equivalent of “only God can judge me” (legality aside, he was at least wrong about that on a very practical level).
Was the 1649 trial legal? It was certainly permissible under international law, and would be permissible under international law today. It was, in effect, an act of political revolution, which international law has no opinion on as long as you don’t commit international crimes in the process.
Domestically, the rule for political revolutions is as follows: they are usually unlawful at the time, but if you can win your revolutionary war and keep hold of the country (tick for Cromwell), you eventually become the government (tick again), and once that happens, you can legislate to legalise whatever you want, even retrospectively (tick again). Therefore, putting the Queen on trial would be possible in UK domestic law, as long as you control the government, and can legitimise the trial before or after the fact.
That’s my conclusion, then: lawfully prosecuting the Queen would be difficult for the reasons set out above, but not necessarily impossible. In order to do it legally, you first need to successfully complete a comprehensive political revolution, after which you can go to town. So good luck with that, my republican friends.
A word of warning, though, to any would-be revolutionaries in the comments section. It is certainly true that he who writes history gets a glowing review in it, to paraphrase a much-loved British racist. And as in history, so in law. But both history and law are only kind to revolutionaries for as long as they can continue to write it. Following the restoration of the monarchy in 1660, Charles II passed his own retrospective law, the aptly titled Indemnity and Oblivion Act. This annulled the former government and effectively condemned the remaining regicides to death. Cromwell’s embalmed body was dug up and dismembered, his severed head put on a spike, Joffrey-style.
So if DCI Smith did put the Queen on trial, he might not sleep easy the following evening. He’d surely worry that one day, a future government might strip his actions of legality, and give him a nice view of London Bridge’s underside for good measure.
Alex Shattock is a final year PhD student at the University of Cambridge.
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