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The Queen's Law
December 2002


What's it about?

The trial cost the British taxpayer 1.5 million pounds, not to count the cost of the 11 month investigation that preceded it. The defendant was charged with theft of some 300 items from a dead Princess, but now senior British politicians are asking questions about the star "witness", whose last-minute revelations led to its abrupt end. The accused was the butler, the archetypal villain in so many drawing-room dramas, and the surprise informant was no other than Her Majesty Queen Elizabeth II. Sound like the plot of a BBC political thriller? No, this is too far-fetched to be fiction.

Paul Burrell is a soft-spoken throwback to a bygone era, one that you and I have never glimpsed beyond a few scratchy movies from the golden years of British cinema. He finished years of long service with various members of the British Royal Family as the personal butler of the late Princess Diana. After information provided to police, his house was raided, where various articles that belonged to the Princess were found. Charges were brought.

The Queen's involvement

Apparently Mr. Burrell met the Queen in December 1997, where he informed her that he had stored some of the Princess's papers for safekeeping. As these things go, the Queen did not offer her opinion. Buckingham Palace issued its own chronology, which goes something like this:

  • Following the raid on Mr. Burrell's home, the Queen was informed that none of her possessions had been found amongst the Princess's effects. As a result there appeared to be no basis for any further involvement by the Monarch.
  • Three months later, the Queen's private secretary attended a briefing where it was revealed that police were investigating accusations that Mr. Burrell had sold some of the Princess's possessions.
  • In September the Queen declined a request from Mr. Burrell's solicitor for a meeting to discuss his service for the Royal Family. The Queen wished to avoid any appearance that she would interfere with the judicial process.
  • In October it became clear, however, that there was no evidence that Mr. Burrell had sold any items.
  • Later that month the Queen discussed the case with her husband and Prince Charles, and mentioned the meeting with Mr. Burrell five years before. This was clearly information that had to be passed on to the police, because the prosecution in part relied on the fact that Mr. Burrell had not told anyone that he had taken items.

Following this information, and based on the account now provided by the Queen, the prosecution case collapsed and the trial ended.

Is the Queen above the law?

The Queen was not required to give evidence in the case against Mr. Burrell, as you and I would have to if we were to dispute the basis of the prosecution. In fact, prosecutions in England (and Australia) are brought in the name of the Queen. This is why cases are brought as "R v. Burrell" - the "R" refers to Regina, the sovereign. As well, the Queen is immune from prosecution, and is unlikely to be invited to give evidence in any court proceedings. In part she cannot be allowed to entangle herself in cases that in fact bear her own name.

Could the Queen have been called to give evidence on behalf of Mr. Burrell? Perhaps yes. In fact, some British barristers have stated that they would have called the Queen to the stand. But others, like constitutional expert Lord St John of Fawsley, believe it is contrary to the principles of jurisprudence that the Queen should not have immunity. He believes her immunity is not a privilege, but allows her to fulfil her functions as monarch.

What we think

On the one hand, there would be dire consequences if the Queen were called to give evidence in a civil case. Every stirrer and Republican agitator would be able to bring an action against the Queen and call her to the stand. We are sympathetic to this view, particularly when politicians in our own country often have access to legal representation at the taxpayers expense. However, criminal prosecutions present a different set of issues. In those cases, where there is a possibility of prison or other criminal penalties, a defendant should be entitled to call any person who advances their cause.

Mr. Burrell secured a "get out of jail free" card on the basis of the word of another person who was never tested in the witness box. Moreover, one has to wonder why the Queen did not reveal this information for so long, when clearly it would have derailed the prosecution long before it ever began. According to Buckingham Palace, the Queen did not speak earlier because she believed the information she had was "irrelevant". She then came forward as soon as she realised, from reading the newspapers, that the information could be important. But as Labour MP Dennis Skinner said, given the same actions as the Queen, any ordinary person would face prosecution for withholding vital information and obstructing the course of justice.

One simple procedural change would be to launch prosecutions in the name of the prosecuting body - in Australia that might be the Department of Public Prosecutions. No doubt this would upset the remaining monarchists in our midst, but come on, do we really need to continue to prosecute in the name of the Queen? And in England surely there would be a way to discreetly take evidence from the monarch that would not infringe her privilege, while preserving the rights of her subjects to a fair trial? What is more important - the Queen's right to privacy and protection or the rights to a fair trial of her subjects?

By Geoffrey Winn
Creative Director
www.law4u.com.au

Read this: The legal information contained above is intended to be general information about the law. It is not a substitute for legal and other professional advice. Lawscape Communications P/L does not accept responsibility for loss to any person, who either acts or does not act because of this information.

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