Focus: A case of unwelcome precedents
What happened to open justice, asks Anthony Scrivener QC
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Many barristers would consider it the climax of their careers to shout in court "call the Queen". But could she be called as a witness in a criminal case? After all, they are her courts and all prosecutions are brought in her name. It is a question, which the Burrell trial, and the unprecedented manner of its collapse, has raised – just as it has raised many other questions about the conduct of this extraordinary case.
The position of the Queen herself, as opposed to her symbolic self – the Queen in Parliament representing the Government – is a politically delicate area. The modern monarch is anxious not to look too different from her loyal subjects. Admittedly the palaces, castles, private trains and aircraft and immense fortune make this rather difficult.
There is certainly one case which decided many years ago that the monarch could not be subpoenaed to give evidence, but is the modern monarch going to stay in the palace and watch a loyal subject get seven years when her evidence could have cleared him?
Although Lord St John of Fawsley may collapse in a faint at the thought of it, the matter could be dealt with in a pragmatic manner. Her Majesty would turn up at the Old Bailey like everyone else and give her evidence and tell the jury what Mr Burrell had told her. It has been pointed out that the Crown Prosecution Service could not just phone Her Majesty to get her version of things and that there is a protocol to follow. Her version may come down through the mouths of royal retainers, but come down it would.
Of much greater practical significance was the willingness of the trial judge to allow certain documents which were referred to in court not to be read aloud so the media could not report the contents. This was an alarming development and the media took the unusual step of instructing counsel to appear on their behalf to protect this infringement of the principle of open justice.
It is permissible to keep evidence secret where disclosure could cause danger to someone such as an informer, or where security of the state is involved. The fact that evidence might cause embarrassment or discomfort to important people like the prime minister, or members of the royal family, is not a legitimate reason for secrecy and is unacceptable in a 21st-century democratic society. It is far from clear whether the judge gave proper weight to this fundamental principle despite the submissions made to her.
Then there is the question of the items which the prosecution alleged Mr Burrell had stolen. Taking into safe custody – Mr Burrell's explanation as to why he had them – implies that you do not own the stuff yourself: if the goods are yours, they are yours. Some of the royal belongings were gifts to a loyal butler. Does this explain the prolonged inaction by the executors in getting in all the assets of the estate? There would have been plenty of scope for lawyers in this situation, but it may be that the whole thing could have been resolved around the table by a "one for you, one for me" settlement.