A claim for a declaration as to the meaning of s.3 Treason Felony Act 1848 or for a declaration of incompatibility under the Human Rights Act 1998 was unnecessary and should be dismissed.Appeal by the Attorney-General from a judgment of the Court of Appeal allowing "The Guardian" newspaper ('G') to proceed with a claim for a declaration as to the proper construction of s.3 Treason Felony Act 1848. Section 3 made it an offence punishable by imprisonment for life or any shorter period to "compass by publication to deprive or depose the Queen from the Crown". A necessary ingredient of other offences under the section was the use of force. No prosecution had been brought under the section since 1883. G wished to publish a series of articles urging abolition of the monarchy and asked the Attorney-General to clarify the legal position under s.3. The Attorney-General declined to do so. G sought judicial review and a declaration as to the correct meaning of s.3 of the 1848 Act and in particular whether it applied to published advocacy of the abolition of the monarchy other than by criminal violence. The Administrative Court held that there was no decision of the Attorney-General susceptible to challenge and that it was not appropriate to make declarations as to the criminality or otherwise of conduct in advance. The Court of Appeal refused an application for permission to appeal against the Administrative Court's decision to refuse to grant permission for judicial review. However the Court of Appeal allowed G to proceed with an amended claim for declaratory relief and an alternative claim for a declaration that s.3 of the 1848 Act was incompatible with Art.10 European Convention on Human Rights. The Attorney-General obtained leave to appeal to the House of Lords on the question whether the court should entertain a claim for declaratory relief on a question of criminal law.HELD: (1) Save in exceptional circumstances it was not appropriate to bring proceedings against the Crown for a declaration as to the criminality or otherwise of proposed conduct (Imperial Tobacco Ltd v Attorney-General (1981) AC 718). (2) The Court of Appeal did not adopt a structured approach to considering whether the case was exceptional. (3) Even if the case was exceptional, the House was not obliged to remit it to the Administrative Court. The part of s.3 of the 1848 Act that appeared to criminalise the advocacy of republicanism was a relic of a bygone age. The idea that it could survive scrutiny under the Human Rights Act 1998 was unreal. G had published the articles despite the existence of s.3 and the claimants' rights under Art.10 had not been engaged or breached. It was clear that no one who advocated the abolition of the monarchy by peaceful and constitutional means was at any risk of prosecution or conviction. The litigation was unnecessary and G's application was dismissed.Appeal allowed.

[2003] UKHL 38

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