Judges sometimes circulate a draft decision to the parties before announcing it publicly. Timothy Crosland disclosed the outcome of the Heathrow appeal during that confidential period. The Supreme Court had to decide whether the deliberate disclosure was a contempt and what weight his stated public-interest motive should carry.
The Attorney General asked for permission to commit Timothy Crosland for contempt. Mr Crosland, an unregistered barrister and director of Plan B Earth, had represented that charity in R (Friends of the Earth Ltd) v Heathrow Airport Ltd. The appeal concerned the lawfulness of the Airports National Policy Statement, designated on 26 July 2018 as the policy framework for a third runway at Heathrow. The statement does not itself grant development consent. Lord Reed referred the alleged breach to the Attorney General. A different panel heard the application and was not concerned with whether the Heathrow judgment was right.
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The embargo and the disclosure
On 9 December 2020 the draft judgment was circulated in confidence under Practice Direction 6. The rubric required recipients to preserve confidentiality and warned that a breach might be treated as a contempt. The covering email repeated that the draft was strictly confidential and not for publication before judgment. Confidential circulation allows errors to be corrected and lets parties prepare submissions and prepare for publication.
Mr Crosland challenged aspects of the draft and asked for permission to discuss it with external lawyers. Permission was refused. Before hand-down he was told that the Court would acknowledge an argument but would not make the substantive change he wanted.
The day before judgment was due, he sent the Press Association a statement disclosing the result and published it on the charity’s social media account. He described his actions as civil disobedience and acknowledged the possibility of contempt proceedings.
Why this was a criminal contempt
The Court granted permission. The conduct was undisputed and, if established, would be a serious contempt, so it was in the public interest for the application to be heard.
To the criminal standard, the Court found that Mr Crosland made the disclosures and knew of the embargo. He admitted both. There was nothing in the rubric’s statement that a breach “may” be treated as a contempt: the prohibition was clear, the clerk’s email reinforced it, and his own words showed that he expected contempt proceedings. The breaches were deliberate and calculated. His request for outside advice did not show doubt about confidentiality. The email of 11 December sought advice on what could be said after judgment, depending on its final form.
This was criminal contempt, not a private party’s complaint about non-compliance with an order protecting private rights. As Lord Toulson explained in Director of the Serious Fraud Office v O’Brien, criminal contempt goes beyond non-compliance and involves a serious interference with the administration of justice. The Court itself had imposed confidentiality on a party’s representative so that it could control its own proceedings. The seriousness threshold was passed. A judgment must be delivered when the Court chooses, and in an accurate, complete and final form; a leak can undermine the Court’s authority. If draft judgments cannot be circulated confidentially, that beneficial practice will have to be abandoned. The Attorney General had issued a media advisory notice about this in October 2020. Mr Crosland intended the widest possible publication, in terms which defied the Court and could encourage others to disclose this or another draft.
A deliberate breach of an order he knew about was enough. An ulterior intention to interfere with the administration of justice did not have to be proved. The Court was nevertheless sure that he had that intention. As a barrister, he understood why the embargo existed and that it served the interests of justice. He broke it as civil disobedience and sought to display that defiance to as large an audience as possible.
Why his justifications failed
Mr Crosland accepted that he knew he was breaking the Court’s confidentiality and was likely to be pursued. He said his action was nevertheless lawful: a reasonable and proportionate response to the harm he believed global warming would cause, and one the Court would have allowed had it understood its own judgment. The Court read his material but held that it did not affect liability.
There was no contractual or equitable duty of confidence which a public interest might override. The Court had directed him not to disclose the draft, and he had to obey unless the Court varied that direction. The restriction was prescribed by law for article 10(2) of the European Convention on Human Rights. There is no public-interest defence and no justifiable contempt of court. A person may intend to interfere with the administration of justice even if motivated by a desire for what he or she regards as a just result. Disclosure was unnecessary for public scrutiny: from hand-down the next day, everyone was free to criticise the judgment. There was no rational connection between breaking the embargo and preventing the harm he feared. If his case was that the Heathrow judgment violated the article 2 right to life, that could be raised against the United Kingdom in Strasbourg. Section 3 of the Human Rights Act 1998 did not apply, because this was common-law contempt, not a statute, including the Contempt of Court Act 1981. Necessity or duress of circumstances had no scope: nothing required him to act during the short period before hand-down. His belief that the Court would have consented was unrealistic.
The embargo did restrict expression, but only from 9 December until 9.45 on 16 December, and only so that errors could be corrected and the parties could prepare. Having had particular regard to article 10 and section 12 of the Human Rights Act, the Court held that the restriction was necessary and proportionate to maintain the authority of the judiciary.
The fine and the costs
In setting the penalty, the Court balanced the deliberate breach and the need to deter repetition against the limited direct harm. The timing mattered: the judgment would have been public the next day and the short embargo did not stop him criticising it then.
The Court also took account of his good character and means. It considered a fine sufficient.
After hearing further submissions on costs, the Court assessed the contribution payable to the Attorney General at £15,000.
Verdict: The Supreme Court found criminal contempt proved, fined Mr Crosland £5,000 and subsequently ordered him to pay £15,000 in costs. These proceedings concerned the early disclosure of the judgment.
Source: Her Majesty’s Attorney General v Crosland [2021] UKSC 15
