Can a litigant appeal from one Supreme Court panel to another? The question arose because the Court had itself tried Timothy Crosland for contempt after he disclosed an embargoed judgment. Four justices held that an appeal lay to a fresh panel. Every justice concluded that the challenge failed.
Mr Crosland, an unregistered barrister, was a director of Plan B Earth, a charity which had been a party to R (Friends of the Earth Ltd) v Heathrow Airport Ltd. That appeal concerned the lawfulness of the Airports National Policy Statement and the extent to which the Paris Agreement had been taken into account. The Supreme Court heard it on 7 and 8 October 2020. On 9 December 2020 a draft judgment, allowing the appeal, was circulated to the parties’ representatives. Mr Crosland knew that he was forbidden to disclose the result or the contents before hand-down at 9.45 am on 16 December 2020.
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The breach
Reading the draft, Mr Crosland believed that it perpetuated what he regarded as a misleading account of how the Heathrow expansion policy had been assessed against climate targets. He properly sent comments to the court. He was told that his argument would be acknowledged, but that the substance of the judgment would not change.
On 15 December 2020 Mr Crosland disclosed the result to the Press Association and via social media. He declined a request to remove the post before the judgment was handed down the following day.
The contempt finding and the costs order
The Attorney General brought contempt proceedings. The original decision is reported separately at [2021] UKSC 15.
Lords Lloyd-Jones, Hamblen and Stephens heard the application on 10 May 2021. There was no real dispute that Mr Crosland had made the disclosures deliberately and knowing of the embargo. The panel was satisfied to the criminal standard that this was, or created a sufficiently serious risk of, interference with the administration of justice, and that he specifically intended such interference. It was not necessary to prove an ulterior motive, but the panel found that intention anyway.
The panel rejected his defences. A direction of the court had to be obeyed; the case did not depend on proving a breach of confidence. The embargo was prescribed by law for the purposes of article 10 of the European Convention on Human Rights. Concern about the consequences of the decision supplied no defence of public interest: there is no justifiable contempt of court, and a person may intend to interfere with the administration of justice even when seeking what he or she believes to be a just outcome. Nor was the breach necessary. The judgment was to be handed down the next day, after which anyone could scrutinise and criticise it. Reliance on article 2 and on necessity or duress of circumstances also failed.
The panel accepted that the embargo restricted disclosure and engaged article 10, but only for a short period and for the limited purposes of correcting errors, preparing submissions and allowing parties to prepare for publication. It held the restriction necessary and proportionate to maintaining the authority of the judiciary and of judicial decisions. It fined Mr Crosland £5,000, having regard to article 10. He did not challenge the amount of that fine on appeal. The panel later ordered him to pay £15,000 towards the Attorney General’s costs, which had been claimed at £22,504.
Could another panel hear the appeal?
The Attorney General asked the court to decide whether any appeal lay from one Supreme Court panel to another. Lord Briggs, Lord Kitchin, Lord Burrows and Lady Rose held that it did. Punishment for contempt is an original, first-instance jurisdiction, even where the events arise during an appeal. Such an order may impose an unlimited fine or imprisonment, so the absence of an appeal would be a serious gap in the law.
They found the right in section 13(1) of the Administration of Justice Act 1960, which provides an appeal from any order or decision of a court exercising jurisdiction to punish for contempt, including criminal contempt. “Court” is defined widely enough to include the Supreme Court, and the section does not expressly exclude it. The remaining subsections deal mainly with who may appeal, routes, powers and limited exceptions; silence about the Supreme Court does not remove the right conferred by subsection (1). An appeal from the panel which made the order to a different and larger panel is not impossible where the court is exercising original rather than appellate jurisdiction. The exceptional power to revisit a decision for serious procedural unfairness, illustrated by the Pinochet litigation, is not itself an appeal and would not have covered all of Mr Crosland’s grounds. The majority left open whether an equivalent right exists where a contempt arises in connection with a Scottish appeal.
Lady Arden disagreed on jurisdiction. A right of appeal, she held, must be conferred expressly and in ordinary language lies to a higher court. Section 13 sets out vertical routes of appeal and does not create an appeal from one Supreme Court panel to another. She would instead have relied on the court’s inherent jurisdiction to review an order for particularly serious unfairness. Even on that basis, she would have dismissed the application.
Beliefs, publicity and article 10
Mr Crosland argued that the first panel had failed to assess whether his breach was a proportionate response to what he believed was the suppression of evidence about Heathrow and climate change. He relied on the Supreme Court’s later decision in Director of Public Prosecutions v Ziegler, concerning protesters who obstructed a highway and the statutory defence of lawful excuse.
The majority distinguished Ziegler. The draft had been supplied for particular purposes under a time-limited duty of confidence which Mr Crosland understood. He chose to flout it, knowing that he might be found in criminal contempt. The first panel had considered his claim to be acting to prevent serious harm to the public and rejected it both in principle and on the facts. There was no public-interest defence, no need to breach the embargo in order to permit scrutiny, and no rational connection between the breach and the harm he said he wished to prevent. He or others could have applied to vary or discharge the embargo.
The embargo delayed public discussion only until hand-down. Mr Crosland could have criticised the judgment then or applied for the embargo to be varied. The panel regarded his preference for public defiance as insufficient to justify early disclosure.
Impartiality, disclosure and costs
The majority saw no real possibility of bias. The Attorney General had decided to bring the proceedings, and the contempt panel did not include the judges who had heard the Heathrow appeal. The circumstances differed from those of a court immediately punishing alleged contempt in its own presence.
He also complained that the Attorney General had not disclosed what action, if any, was taken over an earlier embargo breach involving the Court of Appeal’s judgment in Begum. The majority was prepared to assume that disclosure obligations analogous to those in criminal proceedings applied. The other incident was nevertheless irrelevant. The importance of keeping a judgment confidential until the court publishes it does not depend on what happened in a different case.
On costs, the majority held that an appeal court may interfere only where the court below has made an error of legal principle. In contempt proceedings, costs normally follow the event, subject to whether they are reasonable and proportionate. Means, the relationship between costs and any fine, and the combined effect on article 10 rights may be taken into account. The first panel applied those principles. It had limited information about Mr Crosland’s means despite inviting him to provide it, and reduced the claim from £22,504 to £15,000. The costs principles in ordinary criminal cases do not govern contempt proceedings. Even if they did, there is no rule that costs must stand in an arithmetical relationship to the fine.
Verdict: By a four-to-one majority the Supreme Court held that section 13 of the Administration of Justice Act 1960 gave a right of appeal in these circumstances. The challenge failed. The finding of contempt, £5,000 fine and £15,000 costs order stood. The Court left open the position in connection with Scottish appeals.
Source: Attorney General v Crosland (appeal against contempt finding and orders) [2021] UKSC 58
