Her Majesty’s Attorney General (Applicant) v Timothy Crosland (Respondent) [2021] UKSC 15

Her Majesty’s Attorney General (Applicant) v Timothy Crosland (Respondent) [2021] UKSC 15 concerned proceedings for committal for contempt arising out of Mr Crosland’s breach of an embargo on the judgment in R (Friends of the Earth Ltd) v Heathrow Airport Ltd [2020] UKSC 52. The Supreme Court, sitting as a panel of Lord Lloyd-Jones, Lord Hamblen and Lord Stephens, granted permission for the committal application to proceed, found Mr Crosland guilty of criminal contempt of court and imposed a fine of £5,000.

Mr Crosland was an unregistered barrister who had represented the charity Plan B Earth in the Heathrow appeal, which concerned the lawfulness of the Airports National Policy Statement governing the construction of a third runway at Heathrow Airport. On 9 December 2020, a draft judgment was circulated in confidence to the parties’ representatives, including Mr Crosland, with a rubric marking it “in confidence” and warning that any breach of confidentiality might be treated as a contempt of court. On the morning of 15 December 2020, the day before judgment was due to be handed down, Mr Crosland sent an email to the Press Association and published a statement on Plan B’s Twitter account disclosing the outcome of the appeal. The statement said that he had taken the decision to break the embargo as an act of civil disobedience and that he was ready to face the consequences. The outcome was then reported by Reuters, City AM, The Independent, The Daily Telegraph and the Mail Online before judgment was handed down at 9.45 am on 16 December 2020. The statement was also retweeted at least 406 times, including by Extinction Rebellion UK.

Prior to his disclosure, Mr Crosland had sought permission to discuss what he contended were inaccuracies in the draft judgment with external lawyers, arguing that the Secretary of State had assessed the Airports National Policy Statement against a historic global temperature limit of 2 degrees Centigrade which had by June 2018 been rejected. His request was refused. He was informed on 14 December that the draft would be amended to acknowledge his argument but that there would be no substantive change. The Supreme Court’s Communications Team was notified of the breach at about 11.35 on 15 December and began notifying media organisations, but by then publication had already occurred. The Supreme Court requested Mr Crosland to remove the statement he had posted on Twitter but he did not respond and the tweet was not deleted.

The court first addressed whether permission should be granted for the committal application. It held that the application disclosed a reasonable basis for seeking committal and that it was in the public interest that the application should be heard. The conduct alleged to constitute the contempt was not disputed and, if established, would be a serious contempt.

Turning to the substantive issues, the court found that Mr Crosland was responsible for the disclosure and that when he made the disclosures he was aware of the embargo. Both matters were admitted by Mr Crosland in his contemporaneous statements. The court rejected his suggestion that the wording “may be treated as a contempt of court” in the rubric created uncertainty. The rubric made it abundantly clear that there was a prohibition on publication before hand down. The respondent stated expressly in his personal statement that his conduct would be treated as a contempt of court and that he was ready to face the consequences. The court found that the acts of publication were deliberate and calculated breaches of the embargo.

The court then considered whether the conduct was or created a risk of an interference with the administration of justice sufficiently serious to amount to a criminal contempt. It held that the publication of the outcome of the appeal in breach of the embargo was an interference with the proper administration of justice. The case was not one involving a breach of an order protecting the private rights of another party; rather the order was made to protect the administration of justice and its breach involved a general interference from which the administration of justice must be safeguarded. The confidentiality requirement was imposed directly by the court on Mr Crosland as a representative of a party to the litigation. The court accepted that Mr Crosland had interfered with the court’s control of its own proceedings.

The court held that the threshold of seriousness was passed. First, it was vital for the authority of the court and legal certainty that judgments should be delivered at a time of the court’s choosing and in definitive form. Leaks of draft judgments could undermine the authority of the court and its judgments. Secondly, there was a powerful public interest in the court’s ability to circulate draft judgments confidentially so that errors could be addressed, a final definitive version could be handed down, parties could prepare submissions on consequential matters and prepare themselves for the consequences of publication. If confidentiality was not respected, the procedure would have to be abandoned and these benefits would be lost. Thirdly, the outcome of the appeal and Mr Crosland’s comments were published very widely before hand down, as he intended. Fourthly, Mr Crosland’s statements defied the authority of the court and could encourage others to disobey the prohibition or to disclose other draft judgments.

As to mens rea, the court was satisfied to the criminal standard that the breach was deliberate and in breach of a court order of which Mr Crosland was well aware. The court held that this was sufficient and that it was not necessary to prove an ulterior intention to interfere with the administration of justice. In any event, the court was also satisfied that Mr Crosland did have a specific intention to interfere with the administration of justice. Such an intention could readily be inferred. Mr Crosland was a barrister who would have been well aware of the purpose of the confidentiality and the significance of its breach. He took the deliberate decision to break the embargo as an act of civil disobedience, knowing it would be likely to be treated as contempt. He wanted to demonstrate his deliberate defiance and bring this to as large an audience as possible.

The court rejected each of Mr Crosland’s defences. First, he submitted that there could be no contempt because there was an overriding public interest in disclosure which defeated the obligation of confidentiality. The court held that it was not concerned with a contractual or equitable duty of confidentiality but with a direction by the court which Mr Crosland was bound to obey unless there was a successful application to vary it. Secondly, the obligation was prescribed by law in accordance with article 10(2) of the European Convention on Human Rights. In any event, Mr Crosland fully appreciated that his conduct would be likely to be treated as contempt. Thirdly, Mr Crosland submitted that he could not have the requisite mens rea because he was acting to prevent serious harm to the public. The court held that there was no defence of public interest and no such thing as a justifiable contempt of court. Mr Crosland was bound to observe the confidentiality irrespective of his beliefs. A person may have an intention to interfere with the administration of justice even if acting with the motive of securing what he or she considers to be a just outcome overall. It was not necessary to disclose the result in breach of the embargo in order to permit public scrutiny or criticism of the judgment, which could occur after hand down the following day. The respondent’s conduct could not reasonably be considered “reasonable and proportionate action to prevent mass loss of life”. Fourthly, Mr Crosland submitted that he was entitled to act as he did because he believed it was reasonably necessary to protect the right to life under article 2 of the Convention. The court held that if the judgment violated article 2 this could be tested in proceedings in Strasbourg. In any event, there was no rational connection between any breach of the embargo and the harm Mr Crosland said he wished to prevent. Fifthly, Mr Crosland relied on the interpretative obligation under section 3 of the Human Rights Act 1998. The court held that it was not concerned with any statutory obligations but with contempt at common law. Sixthly, Mr Crosland relied on the criminal defence of necessity or duress of circumstances. The court held that there was no scope for the operation of the defence where there was no requirement for action to be taken between circulation in confidence of the draft and hand down. Seventhly, Mr Crosland submitted that he believed the Supreme Court, had it properly understood the implications of its judgment, would have consented to his course of action. The court held that this submission was entirely unrealistic. It had been made clear that he was required not to disclose the outcome until hand down and thereafter he and the public were free to criticise the judgment.

The court considered article 10 of the Convention and section 12 of the Human Rights Act. The prohibition on publication did amount to a restriction on the disclosure of information, but it was for a limited period only and for specific purposes of enabling suggestions for correction of errors, preparation of submissions on consequential matters and preparation for publication. It was clearly necessary to achieve the legitimate objective of maintaining the authority of the judiciary and judicial decisions and was a proportionate means of achieving that result.

The court therefore held that the conduct constituted a criminal contempt of court.

Turning to penalty, the court referred to the guidance in Liverpool Victoria Insurance Co Ltd v Khan [2019] EWCA Civ 392 requiring an approach analogous to that in criminal cases, assessing seriousness by reference to culpability and harm, first considering whether a fine would be sufficient, and if a custodial penalty was required imposing the shortest period which properly reflected the seriousness. Due weight should be given to mitigation, impact on others, and reduction for early admission. Consideration should then be given to suspending any term of imprisonment.

In terms of culpability, the breach was carried out intentionally and in full knowledge of the prohibition. Mr Crosland admitted in contemporaneous documents that the breach was a considered act. There was a clear intention to interfere with the administration of justice. The conduct was intended to attract publicity to conclusions with which he fundamentally disagreed. He was deliberately disobeying the embargo and abusing the hand down procedure in order to gain publicity. In terms of harm, the outcome was published very widely on social media in advance of hand down, as Mr Crosland intended. This risked undermining respect for the confidential nature of the hand down procedure and might encourage others to do likewise. Deterrence was a relevant consideration. Little direct harm was caused and it was not suggested that market-sensitive information had been released prematurely. Nevertheless, the conduct was damaging to the system of making judgments available in advance of hand down, which was beneficial to the parties and the courts.

The court accepted that Mr Crosland was motivated by his concerns about global warming and his disagreement with the decision, but held that this did not begin to justify his conduct. There was no principle justifying treating the conscientious motives of a protester as a licence to flout court orders with impunity. It was a futile gesture as the judgment would have been available some 22 hours later. However, the court accepted that greater clemency was normally required in cases of civil disobedience than in other cases. Mr Crosland had not deleted the tweet when asked to do so by the Registrar and had not made any attempt to mitigate his conduct by admitting his contempt or by apology. He had remained unrepentant, save for apologising for the inconvenience to staff at the Supreme Court. The court took into account Mr Crosland’s positive good character.

The court was mindful of article 10 and the principles in Cumpana & Mazare v Romania (2005) 41 EHRR 200. Any penalty must be necessary for the legitimate objective of maintaining the authority and impartiality of the judiciary and must be proportionate. The court had regard to the extent of the interference with article 10 rights and the likely deterrent effect on the future exercise of article 10 rights. The sentence it proposed to impose was a necessary and proportionate penalty. The court also took into account that Mr Crosland faced disciplinary proceedings before his professional body and what he had said about his income. The court proposed to deal with the matter by the imposition of a fine and imposed a fine of £5,000, enforceable in like manner to a judgment of the High Court for the payment of money under section 16(1)(a) of the Contempt of Court Act 1981. In short, Mr Crosland’s deliberate breach of the embargo on the Supreme Court’s draft judgment in the Heathrow appeal constituted criminal contempt of court for which a fine of £5,000 was imposed.

R (Friends of the Earth Ltd & Others) v Heathrow Airport Ltd [2020] UKSC 52
HM Attorney General v Yaxley-Lennon [2019] EWHC 1791 (QB)
R (on the application of Edwards and Another) v Environment Agency and Others [2008] UKHL 22, [2008] 1WLR 1587
R. v Hussain (Noshad) [2013] EWCA Crim 990
Connolly v Dale [1996] QB 120
Cuciurean v The Secretary of State for Transport & Anor [2021] EWCA Civ 357
Attorney-General’s Reference (1 of 2002) [2002] EWCA Crim 2392
SFO v O’Brien [2014] AC 1246
Brian O’Brien [2014] UKSC 23
Solicitor General v Cox [2016] EWHC 1241 (QB)
Liverpool Victoria Insurance Company Ltd v Zafar [2019] EWCA Civ 392
Cuadrilla Bowland Ltd v Persons Unknown [2020] EWCA Civ 9

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