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Sedition in England: The Abolition of a Law From a Bygone Era

Abolishing ancient laws in England is often no easy task.  A significant degree of research is involved before these laws are amended or abolished.  The research has to be particularly thorough to avoid one of the oldest – that of unintended consequences.

The issue of thoroughly researching laws was demonstrated several years ago when the government was revamping the U.K.’s constitutional system and merrily announced through a press release that the position of Lord Chancellor was to be abolished.  In all fairness the role of Lord Chancellor at the time was a position that was quite a conundrum of the modern legal system and a contradiction of the principal of the separation of powers, as the holder was a member of the Executive, Judicial and Legislative branches.  The quest for constitutional reform was slightly halted as it was determined that the 1,400 year old role of Lord Chancellor had some statutory functions that could only be altered through legislation.  Whoops.

That aside, the research was done when section 73 of the Coroners and Justice Act 2009 abolished the common law offences of sedition and seditious libel.   The laws on sedition were indeed quite arcane in today’s society where freedom of thought and expression is a protected right in the U.K. under the Human Rights Act 1998.  Even before the enactment of the Human Rights Act, back in 1977 the Law Reform Commission had recommended that these offences be abolished.

The sedition laws date back centuries and were originally designed to protect the Crown and government from any potential uprising.  The laws prohibited any acts, speech, or publications, or writing that were made with seditious intent.  This intent is broadly defined as “encouraging the violent overthrow of democratic institutions.”  (R v. Chief Metropolitan Stipendiary (Ex Parte Choudhury), [1991] 1 QB 429).  A range of actions that could be considered seditous, if they are conducted with the intent to cause violence, are frequently listed as:

  • causing hatred or contempt, or incit[ing] disaffection against the Crown, the government, constitution, either House of Parliament or the administration of justice;
  • to incite subjects to unlawfully attempt to alter matters of the church or state that were established by law;
  • to incite crime or disturbances of the peace; raise discontent or disaffection amongst the Crown’s subjects; or
  • to promote feelings of ill will and hostility between different social classes of the Crown’s subjects.  (Blackstone’s Criminal Practice 2010, ¶ B18.9)

In layman’s terms, and speaking extremely broadly, it means that you must not say or publish any bad words about the Crown, government, or the justice system, nor should you form flash mobs, particularly if armed with flaming torches and pitch forks, to overthrow the aforementioned branches.  The distinction between social classes appears to have been put forth as this offense disproportionately affected the nobility and upper classes, who had greater access and knowledge about the work of Parliament and the Crown.

The punishments for this offense were rather steep – up to life imprisonment and/or a fine (Blackstone’s Criminal Practice 2010, ¶ B18.9).  The earlier punishments were significantly more severe in which perpetrators would have their ears cut off for a first offense and recidivism was punishable by death.

Apart from the fact that the development of England’s criminal and constitutional law pretty much rendered this offence obsolete and most likely in contravention of human rights legislation, part of the reason for abolishing it was to send out a message to the common law countries that both retain, and use this law.  The Parliamentary Under Secretary of State at the Ministry of Justice, Claire Ward, was quoted stating:

Sedition and seditious and defamatory libel are arcane offences – from a bygone era when freedom of expression wasn’t seen as the right it is today… The existence of these obsolete offences in this country had been used by other countries as justification for the retention of similar laws which have been actively used to suppress political dissent and restrict press freedom… Abolishing these offences will allow the UK to take a lead in challenging similar laws in other countries, where they are used to suppress free speech.

During debates on the Coroners Act in the House of Lords, Lord Lester of Herne Hill noted that the common law of sedition had rarely been used in England over the course of the past century.  Interestingly, the last major case in England where there was an attempt to try an individual for sedition involved the publication of Salman Rushdie’s book, The Satantic Verses (R v. Chief Metropolitan Stipendiary (Ex Parte Choudhury),  [1991] 1 QB 429).  This book was alleged to be a “scurrilous attack on the Muslim religion” and resulted in violence in the U.K., as well as a severance of diplomatic relations between the U.K. and Iran.  An individual attempted to obtain a summons against Mr. Rushdie and his publisher, alleging  that  both parties had committed the offense of seditious libel.  Ultimately, the application for the summons failed after the judges found that there was not a seditious intent by either of the parties against any of the UK’s democratic institutions.

It is unlikely that this offense will be missed, and hopefully now they are off the books it will help to open the door for other common law countries that retain it to move forwards and abolish the offence too.

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