The shadowy issue of Crown immunity arises in the context of both criminal and civil proceedings. Crown immunity is an ancient, obscure and complex area of law with significant practical implications. The concept is inextricably bound up with the development of the unwritten British Constitution and the relationship between the monarch, central government, legislation and the enforcement of criminal law.
Criminal proceedings The following points may help with an understanding of Crown immunity: • The literal meaning of “Crown” is “an ornamental badge of regal power worn on the head of sovereign princes”. In general terms, it means the monarch. This involves a consideration of the constitutional position of the monarchy as the head of state. • In strict legal and constitutional theory, legislation cannot come into force until it has received the Royal Assent, that is, consent by the monarch. • The “Crown” now applies to the collective structure of central government in the United Kingdom. • The monarch is personally immune from prosecution or criminal proceedings. This is one reason why the execution of Charles I was deemed to be illegal after the restoration of the monarchy. • In constitutional law, the King (or Queen) can do no wrong. He/she is never a minor and never dies. • Crown immunity also applies, by implication, to the ruling sovereigns of other states. This does not extend to deposed or exiled sovereigns who happen to be within the jurisdiction. The authority for this is cited by Archbold (the barristers’ bible) as R v Mary, Queen of Scots (1586). • Criminal prosecutions are conducted on behalf of the Crown and generally brought in the name of the Queen. Criminal cases are cited as “R v …” which is an abbreviation of “Regina v…”. • The general principle is that the Crown is not bound by any statute. This principle may be displaced where there is an intention stated in the statute that the Crown should be bound. • The principle extends to Crown servants acting in the course of their official duties, Crown property and property occupied by the Crown for public purposes. It covers, for example, the Ministry of Defence, the Prison Service and the Royal Mint. • Section 48 of the Health and Safety at Work, etc., Act 1974 states, in summary, that sections 1 to 54 of the Act, except for sections 21 to 25 and 33 to 42, shall bind the Crown. But this does not mean that criminal proceedings may be brought against the Crown. It should also be noted that liability under the 1974 Act cannot, in itself, give rise to civil liability. • It is also significant that the Working Time Regulations 1998, regulation 37, states in summary that the regulations have effect in relation to Crown employment. No act or omission by the Crown shall make the Crown criminally liable, but the High Court or the Court of Session in Scotland may make a declaration that such act or omission is unlawful. There appear to be no reported examples of such declarations. Crown Censure proceedings are brought by the Health and Safety Executive as an alternative to criminal prosecutions. These proceedings have no formal legal basis and it is difficult to find information about them through standard sources. It is thought that the HSE has reached agreement with the government that the proceedings will be used in appropriate circumstances. The proceedings have been used in a number of reported cases, mostly involving the prison service and the Ministry of Defence. The proceedings are not open to the public. Trade union representatives may be invited to attend. The procedure is not a trial and it is chaired by a senior HSE inspector. The procedure has no statutory basis but is set out in a Cabinet Office Personnel Information Note. The aim of a Crown Censure hearing is to seek acknowledgment of the problem and to improve standards of health and safety. The absence of an agreed and documented procedure led to “some difficulties”. This resulted to the issue of the Cabinet Office note.