This article is taken from the July 2023 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £10.

Last month, Prince Harry graced this country with one of his rare visits in order to testify in his lawsuit against Mirror Group Newspapers for alleged phone-hacking. His Royal Highness was the first senior member of the Royal Family to testify in court in 132 years.

On that occasion, the Prince of Wales (later Edward VII), had been at a house party where a guest, the tiger-stalking and married women-chasing Lieutenant- Colonel Sir William Gordon-Cumming, Bt., was accused of cheating at baccarat, a card game then at the height of its inexplicable popularity. 

Gordon-Cumming had signed a mealy-mouthed non-confession in order to, he said later, protect the Prince’s reputation. All those involved swore to remain silent forever, and Gordon- Cumming promised to not play cards again for as long as he lived.

But when people began to whisper behind his back, Gordon-Cumming issued writs for slander against his accusers. The Prince had to go in the witness box, which was most awkward since the playing of baccarat for money was illegal. As a witness, he made a poor show, displaying none of his customary jollity and giving his answers in a barely audible voice. He did not see any cheating, he admitted, but accepted at face value the evidence of his former friend’s accusers.

Gordon-Cumming lost the case and was cashiered by the Army; the Prince was booed when he appeared at Ascot.

More dubious would be the legal position of a ruling monarch who wishes to testify in court. A long line of authorities, from Hale to Chitty, agree that the King cannot give evidence in cases of treason or felony “for if the King do wrong there is no remedy against him” (if he, for instance, committed perjury) and because of the conflict of interest involved (until 1870, anyone convicted of treason or felony automatically forfeited his lands and chattels to the Crown). But a minority opinion held that the sovereign may voluntarily testify in person, though unsworn, since he could not be prosecuted for lying under oath.

The law officers told King George to ignore the letters, and the Lord Chief Justice declined to compel him to testify

The question was so unsettled that when the judges were asked to give their opinion on the matter during the reign of Charles I, they refused to provide an answer, “not being able to discern the consequences which might happen to the prejudice of the Crown from these general questions”. And the situation in cases of misdemeanour or in civil cases was even less clear.

The question might seem academic, but it was anything but for George V when the anarchist Edward Mylius alleged in an article titled “Sanctified Bigamy” that the King had secretly married the daughter of an admiral when he was a naval officer in Malta, making his marriage to Queen Mary invalid and their children illegitimate.

The first British king to not have taken a mistress in a century, George V was understandably appalled, and wished to clear his name. The attorney-general duly issued an ex officio information against Mylius for criminal libel, a misdemeanour.

Remanded to Brixton Prison, Mylius sent a letter to the King, politely asking him to testify voluntarily, though noting that as subpoenas were issued in the King’s name he could hardly compel him to come into the box. 

The law officers told King George to ignore the letters, and the Lord Chief Justice declined to compel him to testify.

After Mylius was convicted, the attorney-general dramatically waved a piece of paper, said to be written in the King’s own hand, denying that he had ever married anyone other than the Queen and stating that he would have given evidence in person were it not for the advice of the law officers that doing so would be unconstitutional. Mylius had his martyrdom and the King vindicated his reputation, so that all parties got what they wanted.

Of course, none of this applies to foreign royals, those with sovereign immunity aside. European princes and Arab sheiks have long seen the Royal Courts of Justice as a neutral arena in which to settle their personal disputes, freely giving evidence if necessary, which is all very convenient since so many of them have houses in London.

An exception was Prince Abdulaziz bin Mishal bin Abdulaziz Al Saud, who was sued by his former business partner in the High Court a decade ago. After unsuccessfully trying to claim sovereign immunity (rejected as he was not sufficiently high-ranking) and attempting to have the trial held in camera (journalists objected), he refused to sign his witness statements, delegating the task to an underling.

According to the Prince, Saudi royal protocol forbade him from doing anything so vulgar as personally partaking in litigation, let alone signing witness statements or, God forbid, testifying. But there was no evidence such a protocol existed: an even wealthier royal relative of his had testified in the High Court only a month earlier without demurring. 

Without a witness statement, Prince Abdulaziz’s defence was struck out and he lost the case. An appeal to the Supreme Court duly failed. Perhaps he could learn something useful from Prince Harry.