On sedition and leasing-making

Amid all the talk of over-criminalisation and legislative excess I want to note a recent rare example of decriminalisation. Section 51 of the Criminal Justice and Licensing (S.) Act abolishes the common law crimes of sedition and leasing-making. This follows the Coroners and Justice Act 2009 s.73 which abolished sedition, seditious libel, defamatory libel and obscene libel in the rest of the UK. Good news, no doubt, but what do these terms mean?

The Martyrs' Monument in Edinburgh's Calton Graveyard,
commemorating the radicals prosecuted for sedition in 1793.

Sedition, according to Alison's Criminal Law (1832) was the crime of using language that was calculated to incite the subjects of the realm "to attempt the alteration of the law and existing institutions by violent and illegal methods". While some writers distinguished between real and verbal sedition - the former being where the words were put into action - this was not of any great practical importance. It has a long and particularly chequered history in Scots law, as the crime was used to suppress various forms of political opposition. The most famous use (or abuse) of the law was in series of prosecutions of radicals (including Thomas Muir) in the 1790s. Prosecutions of political dissent continued through the 1820s and there was also a prosecution of a group of Chartists in 1848 (Jas. Cumming, John Grant & ors (1848) Shaw 17), and of the publishers of a communist newspaper in Glasgow  in 1921.

The definition of leasing making is more obscure, the term being a corruption of the phrase lese majeste, which was a form of treason. This included offences against the dignity of the sovereign or the uttering of lies or libels upon the personal character of the sovereign, his court, or his family (Burnett). This, it was suggested before the Justice Committee, had not been prosecuted since 1715, though the cases they seem to be referring to here (Graham and Stewart) appear equally to have been prosecutions for slanderous and seditious speeches against the monarch.

Both crimes were defined in extremely vague terms, overlapping with each other, with forms of treason, and with lesser crimes against public order such as mobbing. Both raise the question of the scope of legitimate political comment or satire and the relation between the motive of the writer or publisher and the nature of the supposed incitement. They gave wide discretion to the prosecution. And both crimes sat uncomfortably with modern understandings of political institutions - the chapter of Gordon's Criminal Law on sedition, for example, makes uncomfortable reading as he plainly struggles to recast the understanding the offence into more modern terms.

In the light of this it would, then, be good to report a happy ending, the legislature decriminalising forms of political speech and opposition. But the picture is not quite so clear. While these offences were clearly anachronistic and their abolition desirable, there are a raft of more modern offences which cover similar activities. Notable amongst these are the Terrorism Acts (2000 and 2006) where terrorism is defined in terms of the use or threat of action designed to influence the government or intimidate the public, and specific offences criminalise various forms of participation in, or support of, terrorist activities or groups. Sadly the evidence suggests that these new offences may be open to the same kind of criticisms - over broad definitions, extensive police and prosecutorial discretion, disproportionate use against certain groups or sections of the community - as were directed at those crimes they were supposed to replace. There is little room, then, for self-congratulation.

[Since posting this it has been pointed out to me that the penal reaction to the unfortunate individuals who posted incitements to riot on Facebook last summer seems to exactly mirror the use of the offence of sedition. Further evidence, then, in support of my conclusions.]