Alex Shattock, part-time BPTC student, has won the Legal Cheek Award for Best Journal 2017. Here’s his winning entry, in which he explores the concept of legal immunity. This piece originally appeared on the Legal Cheek website in November 2016.
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.