Her Majesty’s Attorney General (Respondent) v Crosland (Appellant) [2021] UKSC 58
- Summary
- Citing
- Cited By
Her Majesty’s Attorney General (Respondent) v Crosland (Appellant) [2021] UKSC 58 concerned an appeal by Mr Timothy Crosland, an unregistered barrister and director of Plan B Earth, against an order of the Supreme Court dated 10 May 2021 in which he was found to be in contempt of court, fined £5,000 and ordered to pay the Attorney General’s costs of £15,000. The primary issues were whether the Supreme Court had jurisdiction to hear the appeal against the finding and sanction for contempt, and if so whether Mr Crosland had been properly found in contempt.
Mr Crosland had been a party to R (Friends of the Earth) v Heathrow Airport Ltd, an appeal concerning the lawfulness of the Airports National Policy Statement relating to Heathrow expansion. On 9 December 2020 he received an embargoed draft of the judgment under strict confidentiality conditions. He believed the draft contained material errors and omissions concerning the Government’s consideration of the Paris Agreement climate targets. On 15 December 2020, before the scheduled hand down on 16 December, Mr Crosland deliberately disclosed the outcome of the appeal in statements to the Press Association and on Plan B Earth’s Twitter account. He accepted he did so as an act of civil disobedience, believing this would generate greater publicity for his concerns about climate change than any criticism made after hand down. His statements were widely disseminated, including re-tweets by Extinction Rebellion, and he refused to delete them when asked by the court.
The Attorney General brought committal proceedings. At the hearing on 10 May 2021 before a panel of three Supreme Court justices (the First Instance Panel), Mr Crosland was candid about his motivation. He argued his breach was justified and proportionate to prevent serious harm to the public from climate change, and that his breach of embargo was necessary to attract the publicity his cause required. The First Instance Panel found to the criminal standard that Mr Crosland had committed criminal contempt of court. The Panel held that Mr Crosland was bound to respect the court’s embargo, that there was no defence of public interest available, and that his beliefs about the consequences of the judgment provided no justification for breaching a court order. The Panel recognised the embargo engaged article 10 ECHR but found it was prescribed by law, pursued the legitimate objective of maintaining the authority of the judiciary, and was proportionate, being limited to seven days and serving the important purpose of enabling corrections to be made before hand down. The Panel imposed a fine of £5,000, later ordering £15,000 costs.
Mr Crosland appealed on five grounds. Ground 1 contended that the First Instance Panel erred by failing properly to consider his beliefs and motivations as relevant to proportionality, relying on the Supreme Court’s subsequent decision in Director of Public Prosecutions v Ziegler [2021] UKSC 23 which emphasised the need for fact-specific proportionality assessment. Ground 2 alleged the Panel wrongly disregarded a letter from leading scientists (the Scientists’ Letter) supporting his position and demonstrating the efficacy of his breach. Ground 3 asserted the First Instance Panel lacked independence and impartiality contrary to article 6 ECHR because the contempt related to the Supreme Court’s own judgment and the President of the Supreme Court had instigated proceedings. Ground 4 complained that the Attorney General breached disclosure obligations by failing to disclose details of an earlier breach of a court embargo in another case. Ground 5 challenged the costs order as oppressive and disproportionate.
A preliminary issue arose as to jurisdiction. The Attorney General submitted there was no right of appeal from the Supreme Court’s exercise of its original contempt jurisdiction. Section 13 of the Administration of Justice Act 1960 provides a right of appeal from “any order or decision of a court in the exercise of jurisdiction to punish for contempt of court”, but subsections (2) and (2A) set out specific routes of appeal to higher courts and do not mention any route of appeal from the Supreme Court. The Attorney General contended that section 13 formed a complete code and that an appeal from the Supreme Court to a higher court was a conceptual impossibility, since there is no higher court.
The majority (Lord Briggs, Lord Kitchin, Lord Burrows and Lady Rose) held that jurisdiction existed. They emphasised the potentially draconian consequences of contempt orders, including imprisonment, and the strong public policy in favour of a right of appeal reflected in the 1959 Justice Report which preceded section 13. They construed section 13(1) as conferring an express right of appeal in general terms from any court with contempt jurisdiction, and noted the broad definition of “court” in section 13(5) which included the Supreme Court. The phrase “subject to the provisions of this section” signposted procedural and other provisions in the remaining subsections but did not cut down the general right where no express exclusion appeared. The subsections dealt with who may appeal, procedural routes, powers of the appellate court and limited circumstances requiring leave, rather than limiting which courts could be appealed from. Express exclusions in subsections (5) and (6) showed that Parliament knew how to exclude particular orders when it wished to do so. Since no such exclusion applied to Supreme Court contempt orders, the right of appeal was preserved.
The majority rejected the conceptual impossibility argument. They held that in the context of original jurisdiction exercised by a panel of justices, there was no conceptual bar to a differently constituted panel hearing an appeal. Justices of equivalent seniority regularly sit on appeals in the Court of Appeal and the Supreme Court itself. An enlarged panel could provide the necessary additional authority, as occurred when departing from earlier Supreme Court decisions. The majority noted that section 13(1) conferred the substantive right and that rule 9(7) of the Supreme Court Rules enabled the court to adopt appropriate procedure consistent with the overriding objective where the Rules did not otherwise provide. They concluded that Mr Crosland had properly obtained permission to appeal from the First Instance Panel and that the appeal was properly heard by a completely different panel of five justices.
Lady Arden dissented on jurisdiction. She gave five reasons for concluding section 13(1) did not confer a right of appeal from the Supreme Court. First, the common law rule established in Attorney General v Sillem (1864) 33 LJ Ex 209 required express statutory conferral of any right of appeal, and section 13(1) did not expressly provide for appeal from the Supreme Court. Second, a right of appeal was substantive not procedural and could not be supplied by the Supreme Court Rules. Third, no equivalent right applied in Scottish appeals, creating an illogical anomaly if the right existed for English appeals. Fourth, the Supreme Court was a single court of equal justices without hierarchy, not a court of divisions. Fifth, “appeal” naturally meant appeal to a higher authority, and introducing a horizontal right of appeal within the same court was inconsistent with ordinary usage and the structure of section 13. Lady Arden held that the Supreme Court nonetheless possessed inherent jurisdiction, inherited from the House of Lords, to review its own orders in cases of particularly serious unfairness amounting to a denial of justice. This jurisdiction, explained in R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 2) [2000] 1 AC 119, was not limited to purely procedural irregularities but extended to circumstances where some failure undermined the essential quality of the process as a judicial determination.
On the merits, the majority rejected all five grounds of appeal. On Ground 1, the majority held that the First Instance Panel did properly consider Mr Crosland’s case including his motivations and beliefs. The Panel explicitly addressed and rejected his submission that his actions were justified by his concerns about climate change, finding there was no defence of public interest and that breach of the embargo was unnecessary since he could express all his views after hand down the following day. The Panel recognised the embargo engaged article 10 but found it was limited in duration, served the specific and important purposes of enabling error correction and preparation for publication, and was necessary and proportionate to maintain the authority of judicial decisions. In assessing liability the Panel considered Mr Crosland’s intentions and the deliberate nature of his conduct. The decision in Ziegler did not assist Mr Crosland because the circumstances differed materially: Mr Crosland was subject to a court-imposed embargo which he knowingly flouted, whereas Ziegler concerned protesters charged with obstructing the highway. The Panel’s approach to proportionality was appropriate and correct. The embargo delayed Mr Crosland’s ability to comment for only a short period and did not prevent him expressing his views after hand down. His submission that breaching the embargo was necessary to attract publicity was not accepted: there was no persuasive evidence he could not have achieved the same publicity through lawful means after hand down.
On Ground 2, the majority held the Scientists’ Letter did not assist Mr Crosland. The letter was written three months after hand down and did not establish that its signatories only became aware of the judgment through breach of the embargo, or that they would not have participated in public debate following lawful hand down. Mr Crosland had advanced no convincing basis for his submission on this point.
On Ground 3, the majority held there was no appearance of bias. The decision to bring proceedings was taken by the Attorney General, to whom the President of the Supreme Court had referred the matter, not by the court itself. The court was not acting as prosecutor in its own cause. The First Instance Panel did not include any of the justices who sat on the Heathrow appeal. The circumstances were very different from Kyprianou v Cyprus (2007) 44 EHRR 27, where the same judges dealt summarily and almost immediately with a contempt in the face of the court. The fair-minded and informed observer would not conclude there was a real possibility of bias. Supreme Court justices take the judicial oath and are bound to act independently and impartially. The other matters relied on by Mr Crosland, such as the timing of procedural directions and the delivery of judgment shortly after submissions concluded, did not reinforce any perception of bias.
On Ground 4, the majority held that information about an alleged breach of embargo in another case (Begum) was irrelevant to whether Mr Crosland was in contempt or to the appropriate punishment. Even assuming disclosure obligations analogous to the Criminal Procedure Investigations Act 1996 applied, this information neither assisted Mr Crosland’s case nor undermined the Attorney General’s case.
On Ground 5, the majority held the costs order involved no error of legal principle and the First Instance Panel correctly identified and applied the applicable principles. Costs normally follow the event in contempt proceedings. The Panel explicitly considered Mr Crosland’s means, the relationship between the fine and the costs order, and the requirement that the combined effect be proportionate in light of article 10. The Panel reduced the costs claimed from £22,504 to £15,000 taking these factors into account. The principles in criminal costs cases did not automatically apply to contempt proceedings, and in any event Lord Bingham in R v Northallerton Magistrates’ Court, Ex p Dove [2000] 1 Cr App R (S) 136 made clear there was no arithmetical relationship required between fine and costs.
Lady Arden, having found no right of appeal but an inherent jurisdiction to review, applied that jurisdiction to Mr Crosland’s grounds. She held the inherent jurisdiction was engaged only where there was particularly serious unfairness undermining the essential quality of the judicial process. She concluded none of the grounds met this threshold. On article 10, the embargo was justified and Mr Crosland had no good excuse since he could have made his points after hand down without breaching the court’s directions. The result was so clear that granular analysis of each proportionality factor was unnecessary. The Scientists’ Letter did not demonstrate the scientists would not have responded without the breach. There was no appearance of bias given that the Attorney General took the decision to prosecute and a different panel heard the application. The disclosure point in Ground 4 concerned irrelevant material and in any event could have been raised at the hearing. The costs order did not involve the serious level of unfairness required to invoke inherent jurisdiction.
In short, the Supreme Court by a majority held it had jurisdiction under section 13 of the Administration of Justice Act 1960 to hear an appeal from a panel of justices exercising the court’s contempt jurisdiction, provided the appeal was heard by a different and larger panel, but unanimously dismissed the appeal on its merits, finding no error in the conclusion that Mr Crosland’s deliberate breach of the embargo constituted contempt of court and that the fine and costs order were justified and proportionate.
Begum v Special Immigration Appeals Commission [2020] EWCA Civ 918; [2020] 1 WLR 4267
Attorney General v Times Newspapers Ltd [1974] AC 273
Connolly v Dale [1996] QB 120
Director of Public Prosecutions v Ziegler & Ors [2021] UKSC 23, [2021] 3 WLR 179
re Lonrho Plc [1990] 2 AC Page 18
Lawal v Northern Spirit Ltd [2003] UKHL 35; [2003] ICR 856
Magill v Porter & Weeks [2001] UKHL 67
re Lonrho Plc [1990] 2 AC 154
Attorney General v Dallas [2012] EWHC 156 (Admin)
Furtado v City of London Brewery Co [1914] 1 KB 709
Sugar Refining Co Ltd v Irving [1905] AC 369
Dynamics United Kingdom Ltd v State of Libya [2021] UKSC 22; [2021] 3 WLR 231
Taylor v Lawrence [2002] EWCA Civ 90
Porter v Magill [2002] 2 AC 357, [2001] UKHL 67
Attorney-General’s Reference (1 of 2002) [2002] EWCA Crim 2392
Robertson [2015] EWCA Crim 1508
R (Friends of the Earth Ltd & Others) v Heathrow Airport Ltd [2020] UKSC 52
Her Majesty’s Attorney General (Applicant) v Timothy Crosland (Respondent) [2021] UKSC 15