The Queen and the Media
Written by John B Paul   
Monday, 24 March 2003
Address to the Kingsford Smith Branch of ACM
Sydney, Australia
Transcript as released by the Office of Research and Education

The topic

My topic is the Queen and the media. In particular I am referring specifically to those elements in the British media which have adopted a hostile approach to the Monarchy and also to the Australian media where such an attitude is uniform. All references hereafter to “the media” will encompass those elements unless otherwise stated. This article will deal specifically with the role of the media in their treatment of the failed prosecution of Paul Burrell who had been the butler to Diana, Princess of Wales.

Some events which preceded the trial of Paul Burrell

At the outset I propose to link a number of events in the Jubilee Year. First, there was the death of Queen Elizabeth, the Queen Mother. Now many media outlets in Britain said in effect: “It will be a complete frost: it won't attract any public feeling at all”. The BBC, which regrettably has come under the direction of semi-literate yobbos, appeared to have learned nothing from their boorish behaviour when they refused to televise the pageant celebrating the Queen Mother’s one hundredth birthday. The commercial network ITV gratefully stepped in and made a ratings killing. With Queen Elizabeth’s death, BBC newscasters were instructed in advance not to wear a black tie when announcing it. That sort of thing amounted to calculated offensiveness! But not only that! What you have here is actually the media trying in advance of an event to undermine it in the expectation that when it occurs the public will fail to respond. Well, we know the result. The public response was extraordinary. And the press, the media had to tag along.

Then we had the Queen’s Golden Jubilee. Again, the media in London with some “little Sir Echoes” in Australia were prepared to write it down implying in effect, “Oh, it won't go over with the public: it'll be a dead loss”. Well, it turned out to be anything but that. And once again the media had to tag along. This will give you some idea of the self-deception of these people.

On the BBC World Service (Foxtel) they run a programme from about five past midnight called Dateline. On a recent telecast one of the panellists I can't remember his name but his hair was obviously dyed who worked for The Independent on Sunday was speaking in reference to some controversy over the Prince of Wales. There has been an internal inquiry into the running of St James’s Palace which I can't deal with here because I have not read the report. The panel discussion started along these lines: “Oh dear! Can the Royal Family survive this, that, and the other thing in the way of scandals”, and this Independent on Sunday journalist said of the media in so many words, “Oh they can beef it all up again just as they did with the Jubilee: the media will keep it going”. In saying this he was forgetting, of course, that the media didn't beat up the Jubilee; they had to tag along reluctantly to give it any attention at all. That needs to be set in perspective.

Paul Burrell’s prosecution (I)

When the whole business over Paul Burrell's prosecution blew up the media absolutely salivated. They had resented the coverage that they had had to give the Queen Mother's funeral; they resented the coverage they had had to give the Jubilee. They resented the fact that these events had been unqualified triumphs in spite of their own reluctance to anticipate that they would be; and they then said in effect, "Ah, this will be our opportunity to see off the Jubilee year on a sour note". Their subsequent conduct was characteristic of a feeding frenzy of a school of sharks and was about as edifying to witness. Sadly it was replicated in the Australian media.

My treatment of the Paul Burrell prosecution I'll divide into two parts: the first is to consider the Queen's constitutional position in relation to the courts of justice.

The Source of All Justice

The Queen in respect of the courts has a degree of immunity which is not shared with any other member of the Royal Family. Because in a formal sense the Queen is the source of all justice, she cannot give evidence in her own courts. It is as simple as that.

Now, when it was revealed that the Queen couldn't be called as a witness at Paul Burrell's prosecution, although she had a deposition to make, the media, who should have known better, went berserk declaiming in effect the following sentiments. “How outrageous that she should enjoy this privilege!” How outrageous indeed! “It means, of course, that she can't be subjected to cross examination.” Well, of course, one thing follows from the other; if you can't give sworn testimony, you can't be subjected to cross-examination. Anyone would think from the way the media treated the whole issue that this prohibition was something that the Queen, acting on her own initiative at the drop of a hat, had just claimed exclusively for herself.

What they ignored was that, far from being a privilege, this prohibition in many ways is an imposition, because it closes her off from a significant number of legal remedies which an ordinary citizen can only take successfully by giving sworn evidence.

The Queen can't give evidence, and to anyone who knows a little history this could not have come as a bolt from the blue. Her grandfather King George V was placed in the same position, and it was utterly infuriating to him.

For years a rumour had been circulating that he was a bigamist: it was said that he had married an Admiral's daughter in Malta and had three children by her before being even betrothed to the Princess Mary of Teck who, by the way, is often written up as a German! Her father, the Duke of Teck, had in fact been in the Austrian army before his marriage to Queen Victoria’s first cousin, Princess Marie Adelaide of Cambridge, and before the Austro-Prussian war of 1866 and the union of Germany in 1870, and of course Austria held aloof from that until the Anschluss in 1938. So he was an Austrian subject who came to be naturalized as a British subject. Queen Mary's mother, Princess Marie Adelaide, was an English princess. Queen Mary, although she was fluent in German, was the complete Londoner; she had lived there all her life. Yet, Princess Mary of Teck, later Queen Mary, is so often passed off as a German even though she was born in England and was raised as an English woman.

Well this rumour got afoot that before George V, then Duke of York, was even betrothed to Princess Mary of Teck, he had entered this relationship with an Admiral's daughter, had three children by her which meant that his subsequent marriage to Princess Mary of Teck made him a bigamist.

This rumour had been doing the rounds for years. If it had been published while King Edward VII was still alive, if that grubby journalist named Mylius had made it public then, the future George V as the Prince of Wales could have entered the witness box and testified. By the time Mylius published it he had already succeeded his father as King George V. Consequently the ban against his testifying applied, the constitutional prohibition applied.

Now it was the Government that decided to prosecute Mylius for criminal libel. They said in effect, “We've got to knock this on the head, once and for all: it is better to do it now while all the witnesses are still alive, and can testify, including the Admiral whose daughter allegedly married the Duke of York”. So they prosecuted Mylius for criminal libel. The King was absolutely chafing at the bit to go into the witness box in the belief that it would look appalling if he didn’t. But the Law Officers of the Crown, the Attorney-General Sir Rufus Isaacs, later Lord Reading, a future Lord Chief Justice and Viceroy of India; and the Solicitor-General, Sir John Simon, a future Home Secretary, Foreign Secretary, Chancellor of the Exchequer, and later Lord Chancellor both of them very well-furnished lawyers were emphatic in their advice to the King, saying in effect, “You cannot go into the witness box as you are, in a formal sense, the source of all justice. So the prohibition applies”.

A privilege or an imposition?

I draw your attention to that just to point out that far from being a privilege for a monarch, it is often an imposition. If the Government had to prosecute Mylius, they had to prosecute him without the King's own testimony, but they had the testimony of others, including the woman he allegedly married, and his alleged father-in-law Admiral Culme-Seymour, and so the case could be established beyond a reasonable doubt without the King's testimony.

Mylius, acting without counsel, entered no defence at all. He could easily have claimed that he was merely repeating what had been common scuttlebutt for years, but he didn't. What he did was simply to throw down the challenge: the King should enter the witness box to be examined and cross-examined. The Lord Chief Justice pointed out that this was out of the question. In the end Mylius was convicted. Remember that a criminal charge, such as criminal libel, has to be established to a jury’s satisfaction beyond a reasonable doubt and not merely on the balance of probabilities as is required in a civil action. Mylius on being convicted was sentenced to imprisonment for twelve months. The authorities were not prepared to urge a stiffer sentence because they had no desire to make a martyr of him.

Sir John Simon, the Solicitor-General at the time, once recalled what Queen Mary had to say on this subject when he was staying as a guest at Balmoral at the time of the Mylius trial. While prodding the gravel with her parasol to add emphasis to her words, the Queen declared, "The King has many faults but not that one!"

This episode is worth reflecting on. Anyone who has read any biography of King George V such as Sir Harold Nicolson's (1) or Kenneth Rose's (2), just knows this and for the media suddenly to have behaved as if they had just come down in the last shower was disingenuous. Furthermore I am confident that if anyone at the time of the Mylius prosecution had told King George V to his face that the constitutional prohibition against his testifying on oath in the witness box amounted to placing him in a uniquely privileged position, he would have been treated by the King to a stream of profanity appropriate only to the quarterdeck. The King would not have seen it that way at all! When made the target of rumours which amounted to an accusation of a criminal offence, it must have been galling to him that he could not testify on his own account.

Presidential Heads of State

The media conveniently overlooked the fact that Presidential Heads of State are also covered by all manner of immunities. For instance the present French President, Jacques Chirac, has invoked his own presidential immunity to abort investigations into his alleged corrupt dealings when he was in an earlier political incarnation as the Mayor of Paris. So when republicans adopt this high moral tone because the Queen can't give evidence and can't be cross-examined they usually keep quiet about the greater privileges and the protection of draconian privacy laws which republican heads of state enjoy. Burrell’s prosecution case involved this constitutional prohibition against the Queen giving evidence; so we will return to the issue of that prosecution.

Paul Burrell’s prosecution (II)

Shortly after the funeral of Diana, Princess of Wales, the Queen gave Paul Burrell an audience in the course of which he mentioned to her that he was holding a significant number of the Princess's possessions for safe keeping. When the whole thing blew up later, you must remember that that statement on its own merits did not amount to an exculpation of Burrell. After all, he could have given it in bad faith. Or if he had given it in good faith at the time, he could have subsequently yielded to temptation, and decided to flog off a few items.

Now all this came out when the prosecution ultimately decided not to proceed with the case; the senior prosecuting counsel made it perfectly clear that at no stage had the Queen been briefed on the prosecution case; or for that matter on the defence case. All this has great significance but much of the media made no reference to it. People seem to think that because prosecutions are initiated formally in the name of the Crown the Queen would be kept au fait with all their details. Just think for a moment that it would be impossible to acquaint the Queen with the details of every prosecution brought in her name. Or think of it from another angle! Prosecutions in the United States are brought in the name of the people, e.g. The People vs. So-and-So. Imagine what it would involve if the prosecutors had to brief the people on every prosecution brought in their name! Obviously it would be an unrealizable objective.

So the fact that a prosecution is brought in the Queen's name is purely a formality as she is in a formal sense the source of all justice. But that doesn't mean that the Queen is under an obligation to be briefed on any prosecution case; and so, as the prosecutors made clear when they announced that they were withdrawing the charges against Burrell, she wasn't briefed on this one. Nor for that matter did the police even interview her in connection with their investigations of Paul Burrell. If they had done so, as perhaps they should have done, she could have said, "Well, of course, he did give me this assurance which may amount to something” and then enlarged on it. And as a result it would have then been on the table, so to speak. While on the subject of police interviews, I should mention that the police did interview the Prince of Wales and his son Prince William. The impression the police gave the princes was that the evidence against Burrell was more incriminating than the prosecution case was to establish as it unfolded at his trial at the Old Bailey.

The need for a prima facie case

As matters stood, the Queen wasn't briefed about the prosecution. Being no more knowledgeable that anyone else uninvolved in the case, the Queen was entitled to assume like anyone else that the prosecutors had a prima facie case against Burrell, for after all it is usually the irreducible minimum required in initiating any kind of prosecution; that you have a prima facie case. It is a hazardous undertaking for prosecutors to embark upon a prosecution without one. The Queen like anyone else had a right to assume the prosecutors wouldn't proceed with Burrell’s prosecution if they didn't have a prima facie case against him.

In the course of the case at the Old Bailey the Queen tripped off to Canada, on an official visit, in connection with the Golden Jubilee. We to our shame in this country did not even observe the Jubilee. The Canadians had no qualms at all; they commemorated the Golden Jubilee and welcomed the Queen. And she made there an exhausting trip after all she was aged 76 and on 21 April 2003 she will have turned 77 an exhausting trip but a very successful one. Then she returned to London.

At about this time the prosecution completed its case; but they then said that they had to admit that they had not been able to establish that the accused Burrell had actually sold any of the Princess's items in his possession. When the Queen was apprised of this, she was entitled to conclude in so many words, "Well that puts a different complexion on everything!" You see, if they had been able to establish that Burrell had sold some items she could have said in effect, "Oh well, so much for his assurance to me; it just falls to the ground". Once the prosecutors admitted that Burrell had not sold any of the Princess's possessions, then, in the Queen's eyes, there was no apparent inconsistency between the assurance Burrell had given her and his subsequent conduct. The Queen must have concluded in effect, “Well, the authorities have to be informed of this“. Now, if it had been the Prince of Wales to whom Burrell had given this assurance he could have said when he came to the same conclusion as the Queen did in the event, “I shall volunteer to be called as a witness for the defence”. The Queen could not make that choice so what she had to do was to consult with her own lawyers and say that the authorities in this trial would have to be acquainted with this detail; and so it was done.

The judge was informed; the prosecutors were informed; the defence was informed; an informal colloquium of legal representatives of all the parties concluded in effect, "Well, the Queen has known all along of this assurance and now the significance of it is obvious to her and now to us in the light of the submissions made by the prosecutors that there is no inconsistency in the assurance Burrell gave her and in his subsequent conduct. This makes it a very important matter”. And it was at that point that the prosecution (I think they had a sense that the wheels were falling off their chariot) said “Oh well in that case, we will withdraw the charges against Burrell” because the weakness in their case had become very obvious. They were very doubtful whether they would be able to obtain a conviction. Out of all this you have had all manner of speculation.

All manner of speculation

One such item was that the Queen had aborted the trial. She had done nothing of the kind: she had presented some material facts and it was then that the prosecution decided in the light of these facts that they would not proceed with their case against Burrell. It was a decision which only the prosecutors could have made, as they made clear in the courtroom at the time when they announced their decision to withdraw the charges. Much of the media ignored this statement by the prosecution.

Then it was said that the Queen intervened when she did and no sooner so as keep Burrell out of the witness box. He was about to enter the witness box in his own defence. This fallacious claim relies on the assumption that Burrell had something damaging to disclose his subsequent articles in the press hardly lend weight to this claim. This fallacious claim that it was imperative for the Queen to keep Burrell out of the witness box also relies on the assumption that Burrell once in the witness box could say and do exactly as he pleased. He could do nothing of the kind, but then that applies to any witness. Any lawyer knows that this fallacious assertion urged by media scribblers in their muddled speculations is ridiculous. Anyone who has given sworn testimony in a court knows that this is ridiculous. Anyone who has sat on a jury knows that this is ridiculous. A witness on going into the witness box doesn't take charge of proceedings in the court. Far from it! A witness after being duly sworn or affirmed is confined to giving relevant answers to specific questions from counsel and occasionally from the judge.

Often you hear of witnesses “singing like canaries”, to give it a homely expression, but they are a certain type of witness: they are usually witnesses previously involved in the crime that is the subject of the indictment, who have decided to turn Queen's or State’s evidence. This means that they are witnesses for the prosecution. Then, of course, they can blithely dump on their partners in crime; it is a prosecution witness that has that liberty, in certain circumstances, of “singing like a canary”. Someone defending a criminal charge does not have that choice at all. And it is not as if an accused person can dump on everyone else in trying to extricate himself from his own guilt. Defence counsel are very reluctant to encourage their clients to take a tack like that in front of juries as it usually fails to impress them. So when a defendant to a criminal charge enters the witness box he is there to defend himself as best he can.

The other thing the media overlooked was that Burrell could have taken far more liberties by way of revealing all he knew than he could have taken in the witness box by giving his story to the newspapers, which of course was what he did in the end. (It should not be forgotten that the Murdoch group which had unsuccessfully negotiated for the publishing rights to his story subsequently turned on him when a rival group published it and accused him of all manner of infamy for having it published at all.) Burrell couldn't reveal all just to suit himself from the witness box so if the Queen had really wanted to keep Burrell quiet for a time I think it would have made more sense for her to have acted to get him convicted. Then he would have done a spell in jail and his story to the newspapers would have been kept on ice until he had served his time and he would then as a contributor to some newspaper have carried the stigma of being a convicted felon.

The arguments the media put up were so internally inconsistent that they just collapse one after the other under any kind of searching analysis. And so Burrell’s prosecution likewise collapsed; he was free; he gave his story to the newspapers, which really was something in the nature of a damp squib as far as I could see and hardly worth the Queen’s concern if indeed it had been a matter of concern to her at all. When all the hysterical hype and unfounded speculation by the media have been pared down to nothing, we are left with an unexciting conclusion which doubtless will not sell many newspapers. It amounts to this. In intervening as she did in the Burrell prosecution the Queen did not act from self-interest. On the contrary, when confronted with the likelihood of a miscarriage of justice, she acted within the constraints the Constitution imposed on her, as she has acted consistently throughout her reign, with an elevated sense of public duty.

The role of the media

So what then do we have to conclude about all this concerning the role of those elements in the media which so scandalously imputed to the Queen all manner of shady dealings.

A particularly egregious example of this was published only recently. Fred Pawle, in an article published on 6 April 2003 in the colour magazine of The Sun-Herald and The Sunday Age, gave a glowing review of a miscellany of critical pocket biographies of the principal members of the Royal Family. In making the unfounded claim that the Queen intervened in the Paul Burrell case to halt “a criminal trial that was potentially damaging to the monarchy”, Pawle embellished it with a contribution the former chairman of the Australian Republican Movement, Greg Barns, made at a conference at Griffith University in November 2002. The Queen’s intervention, according to Barns, “demonstrated the corrupt nature of the monarchy” and that the system ipso facto had become “a menace to democracy”. While such hysterical rubbish deserves condemnation, it is as well, perhaps, to make every allowance for Barns’s level of intelligence and for his deeply ingrained prejudices. It is also pertinent to ask whether Greg Barns thus handicapped and with the Australian media alone to enlighten him could have made a better-informed judgment.

It is also worth observing that the British Prime Minister, Tony Blair, claimed that the Queen’s conduct in respect of Burrell’s prosecution had been entirely proper from start to finish. Given his position and the material available to him, it simply could not have been open to him to have behaved as irresponsibly as most media outlets.

I tried to get a short article, rehearsing some of the points I have made in this one, into The Australian. I also tried to get it into The Sydney Morning Herald. Neither paper would accept it. I passed it on to Angela Shanahan who was then a contributor to The Australian saying "Use the material if you want to". Something of my draft article appeared in an article she wrote in The Australian. She felt there was a case to be put and she succeeded in making it only with great difficulty given the nature of the editorial hostility to her objective. The result carried a hostile tone far removed from my material. That was as far as she and I got.

Now how do I know all that I have recounted in contrast to what most of the media ran? I came to know of it by consulting one media outlet which alone did not disgrace itself. There was one media outlet in Britain which was prepared to deal scrupulously with ascertainable facts and that was the Conrad Black group: The Daily Telegraph, The Sunday Telegraph, and The Spectator. If you had read those publications you would have gained some idea of all the relevant details attached to this prosecution.

But the other papers the Murdoch papers, and The Times of course is corrupted by his influence, The Guardian is a dreadful paper and The Independent is no better they all whipped up this frenzy of hysteria over the allegedly outrageous privileges that the Queen enjoys by not testifying in a Court; how she aborted the trial and how she was determined to keep Burrell out of the witness box! According to these outlets, the Queen intervened at the last minute to stop him from going into the witness box! She knew all along that he was innocent! Why did she delay so long? And so on and so forth! And all this in spite of the fact that the Queen didn't know anything until the prosecution case gave her the material, and until they did that in court, she was as ignorant of it as everybody else.

So from all this, what advice can I give you concerning the Australian media on matters pertaining to the Royal Family? My advice to you is whenever the Australian media suggest a royal scandal is in the offing ignore them and that means the lot print, radio, television and especially the ABC (Australia's publicly funded fifth column). If you don't, as I do, buy The Weekly Telegraph at your local news agency every week, then when there is a royal scandal in the offing be prepared to part with $3.95 for the latest copy where you can get at least a well-rounded presentation. The Weekly Telegraph and The Spectator will serve reasonably well. Better still, if you can key into The Daily Telegraph (London) on the internet, do so! My advice is to disregard the Australian media altogether when they are trying to beat up a royal scandal.

On the Burrell case readers of The Age, The Australian, The Sydney Morning Herald and The Daily Telegraph (Sydney) were misled because vital details were left out. Returning to the Dateline programme Polly Toynbee of The Guardian in an earlier screening said, "The Queen knew all along that Burrell was innocent." The Queen knew no such thing until the prosecution completed its case.

Burrell himself on this issue has not dumped on the Queen. He said that he knew in the end that she would come to his rescue. The media had to report that, because he said it through his solicitor after the prosecution collapsed. And, incidentally, Burrell himself was very coy in giving details of his audience with the Queen to his own lawyers, coy enough to involve a significant delay in informing them.

What we have to contend with in this country, as in most of the British media, is campaign journalism. When the campaign journalists are on their hobby horse facts are of no account at all. All the media in this country are rabidly republican, and so, in cases like this, what is inconvenient to their argument is ignored. What we are given in a combination of suppressio veri and suggestio falsi! Most London correspondents of the Australian media are lazy, ill-educated and unprofessional. Knowing what their editors want, they are content to rely on all the disreputable elements in the British media. Important details are thereby effectively suppressed.

While I wasn't the recipient of any privileged information, it was from the Conrad Black group of newspapers which dealt with it as newspapers should, that I acquired my knowledge. But in trying to get something into Sydney newspapers, I had a snowball's hope in hell.

So it’s just a warning to you. Ignore the Australian media especially if they say there is a royal scandal in prospect, and turn to Conrad Black’s media outlets for reliable information.

(1) Nicolson, Harold, King George V: His life and Reign, Constable, 1952.
(2) Rose, Kenneth, King George V, Weidenfeld & Nicolson, London 1983