Her Majesty’s Attorney General v Crosland

This application by Her Majesty’s Attorney General for permission to pursue an application for committal for contempt concerns an alleged breach of an embargo on publication of a judgment of the Supreme Court in R (Friends of the Earth Ltd) v Heathrow Airport Ltd [2020] UKSC 52; [2021] PTSR 190 by Mr Timothy Crosland, an unregistered barrister who represented the charity Plan B Earth in those proceedings. That appeal concerned the lawfulness of the Airports National Policy Statement, (“the ANPS”), and its accompanying environmental report. The ANPS was designated as national policy on 26 July 2018 by the Secretary of State for Transport. The ANPS is the national policy framework which governs the construction of a third runway at Heathrow Airport. Any future application for development consent to build this runway will be considered against the policy framework in the ANPS. The ANPS does not grant development consent in its own right.

The alleged breach of embargo was referred by Lord Reed, President of the Supreme Court, to the Attorney General and the Attorney General decided to apply for permission to pursue proceedings against the respondent, Mr Crosland, seeking his committal or such other penalty as the court considers appropriate for contempt of court. This application is being heard by a different panel of the Supreme Court from that which sat on the Heathrow Airport case.

This hearing is not concerned with the substance of the judgment of the Supreme Court in the Heathrow Airport case. That judgment has been handed down by the Supreme Court and, as with all judgments in all courts in this country, members of the public are free to subject it to the closest scrutiny and to express their views on the decision. The present proceedings are about a distinct and very limited matter: the conduct of Mr Crosland in disclosing the result of the appeal in breach of the embargo before it was made public by the Supreme Court and whether that constitutes a contempt of court.

The grounds of committal relied on by the Attorney General are as follows:

We consider that the application discloses a reasonable basis for seeking the committal of the respondent and that it is in the public interest that the application should be heard; see Attorney General v Yaxley-Lennon [2019] EWHC 1791 (QB); [2020] 3 All ER 477, paras 23 and 98 to 101. The conduct alleged to constitute the contempt is not disputed and, if established, the contempt would be a serious one. Accordingly, we grant permission.

It is necessary to refer to the relevant events in a little more detail. The draft judgment in the Heathrow appeal was circulated in confidence to the parties’ representatives, including the respondent on 9 December 2020. The rubric on the draft judgment read:

The email from the judgments clerk sent with the draft judgment invited corrections to the draft judgment. It continued:

The Practice Direction states in relevant part:

There is no substantial disagreement between the parties as to the primary facts. Documents before this court show that, following circulation of the draft judgment, the respondent sent emails to the court in which he contended that there were inaccuracies in the draft judgment and sought permission to discuss them with external lawyers prior to hand down. In those emails, the respondent maintained that the Secretary of State for Transport had in June 2018 assessed the ANPS against the historic global temperature limit of 2 degrees Centigrade, a standard which by that date had been rejected by the UK Government and by the wider international community. The respondent said that the fact that this standard had been applied had only come to light through the disclosure process in the Heathrow litigation.

The respondent’s request to discuss the implications of this with external lawyers prior to hand down was refused.

On 14 December 2020, the respondent was informed that the draft judgment would be amended to acknowledge an argument he had advanced but that there would be no substantive change to the judgment. At 11.22 on 15 December 2020, the respondent published his personal statement in which he disclosed the outcome of the appeal in an email sent to the Press Association and possibly to other media organisations. He issued a statement in similar terms on Plan B’s Twitter account at 12.41. He also emailed the Supreme Court judgments clerk in similar terms at 13.55.

At about 11.35 on 15 December 2020, the Supreme Court’s Communications Team was notified of the statement through a telephone call from the Press Association. It issued a statement to the Press Association and from 11.50 the Supreme Court began notifying media organisations of the breach of embargo. However, by that time publication had been made by various organisations, including Reuters, City AM, The Independent, The Daily Telegraph and the Mail Online. Some of these withdraw their articles but The Independent and the Mail Online did not. The Independent article was removed after the judgment had been handed down.

At 16.36 on 15 December 2020, the Supreme Court requested the respondent to remove the statement he had shared on Twitter until 9.45 the next day as it was in breach of the embargo. The respondent did not respond to the email and the tweet was not deleted. Plan B’s Twitter account had 3,585 followers. It was re-tweeted at least 406 times by other Twitter users, including Extinction Rebellion UK, which had 55,600 followers at that time. The judgment was handed down by the Supreme Court at 9.45 am on 16 December 2020.

On 16 December a link to the respondent’s statement was posted on Plan B’s website.

The respondent wrote an article for The Independent which was published online on 17 December 2020. It was published under the title “I am the lawyer who committed contempt of court over Heathrow’s expansion plans - this is why I did it”. We note that the respondent states that he in fact submitted the article under the title “Why I broke the court embargo on the Heathrow judgment” and that the title was changed by the editor at The Independent. We also note that the respondent appears to have made no objection at the time to the amended title under which it was published, that that title reflected what was said in the last paragraph of the article, and that in his blog post entitled “Barrister who breached Supreme Court embargo: I felt I had no choice” the respondent referred to “my contempt of court in breaking the embargo on the Heathrow judgment”.

The principal issues that we have to decide are (1) whether the respondent was responsible for disclosing to the public the outcome of the Supreme Court’s judgment in the Heathrow Airport case prior to the Supreme Court handing down its judgment in breach of an embargo on disclosure; and, if so, (2) whether, when he did so, he was aware of the embargo on disclosure; (3) whether in all the circumstances the respondent’s actions were or created a risk of an interference with the administration of justice that was sufficiently serious to amount to the actus reus of criminal contempt; and (4) whether the respondent had a specific intention to interfere with the administration of justice. If the contempt of court is proved to the criminal standard, it will be necessary to consider questions relating to penalty and costs.

We make the following findings of fact which we find proved to the criminal standard.

First, the respondent was responsible for the disclosure. On the morning of 15 December at 11.22 the respondent sent an email to the Press Association containing his personal statement in which he disclosed the outcome of the appeal. It stated in terms, “Tomorrow the Supreme Court will overturn the Court of Appeal’s judgment in Heathrow’s favour and rule that Mr Grayling acted lawfully”. Just over an hour later at 12.41 he posted a similar statement on Plan B’s Twitter account. The respondent has not denied that he made these publications. On the contrary, he has admitted them.

Secondly, when the respondent made the disclosures, he was aware of the embargo. Once again, this was admitted by the respondent. The personal statement sent to the Press Association at 11.22 stated that he had taken the decision to break the embargo as an act of civil disobedience. The statement posted on Plan B’s Twitter account at 12.41 stated, “I am breaking the court embargo on Heathrow to protest against the injustice of the verdict, which is a betrayal of the younger generation and those on the frontline of the crisis in the UK and around the world.”

The respondent here points to the sentence in the rubric which states “A breach of any of these obligations may be treated as a contempt of court”. He suggests that there is uncertainty in this statement. There is no substance in this submission. First, the rubric made it abundantly clear that there was a prohibition on publication of the judgment or any part of it prior to hand down. What matters here is that, when he made the disclosure, the respondent was aware of the embargo. Secondly, the prohibition on publication was reinforced by the express warning in the email from the judgments clerk which enclosed the draft judgment. Thirdly, the respondent was in no doubt that his conduct would be likely to be treated as a contempt of court. In his personal statement he stated at the outset, “This will be treated as a contempt of court and I am ready to face the consequences”. We find that these acts of publication were deliberate and calculated breaches of the embargo.

Furthermore, the respondent’s suggestion that it was because of some doubt as to the confidentiality of the judgment that he sought leave of the court to obtain independent legal advice is contradicted by what he said at the time. The request that he be permitted to discuss the draft judgment with external lawyers made by email at 11.15 on 11 December gave as the reason that “We need legal advice on what we can and cannot say following the judgment, depending on its final form” (emphasis added).

The next question for consideration is whether the respondent's conduct was or created a risk of an interference with the administration of justice that was sufficiently serious to amount to a criminal contempt.

In the words of Lord Toulson in Director of the Serious Fraud Office v O’Brien [2014] UKSC 23; [2014] AC 1246, para 39: “A criminal contempt is conduct which goes beyond mere non-compliance with a court order or undertaking and involves a serious interference with the administration of justice”. The present case is not a case involving a breach of an order by a party to litigation where the order has been made at the instance of an opposing party and its purpose is simply to protect the private rights of that other party. Rather the order was made in order to protect the administration of justice and its breach involves a general interference from which the administration of justice must be safeguarded; see, for example, Attorney General v Yaxley-Lennon [2019] EWHC 1791 (QB); [2020] 3 All ER 477, para 54; Attorney General v Dallas [2012] EWHC 156 (Admin); [2012] 1 WLR 991; Solicitor General v Cox (Contempt of Court: Illegal Photography) [2016] EWHC 1241 (QB); [2016] 2 Cr App R 15, para 73. Furthermore, the requirement of confidentiality was imposed directly by the court on the respondent, who was a representative of a party to the litigation. The strictly confidential basis upon which draft judgments are provided to parties is well established, as are the reasons underpinning the duty of confidentiality in this context; see, for example, Director of Public Prosecutions v P (No 2) [2007] EWHC 1144 (Admin); [2008] 1 WLR 1024, paras 2 and 10 per Smith LJ; R v Noshad Hussein [2013] EWCA Crim 990, paras 1 to 2 per Treacy LJ. The potential damage to the administration of justice which breaches of this duty of confidentiality may cause has also been emphasised; see, for example, P (No 2) at para 10 per Smith LJ. A critical point here is that the respondent has interfered with the court's control of its own proceedings. We accept the submission on behalf of the Attorney General that the publication of the outcome of the appeal in breach of the embargo was an interference with the proper administration of justice.

Moreover, we accept the submission on behalf the Attorney General that the threshold of seriousness is passed in this case. First, it is vital for the authority of the court and in the interests of legal certainty that its judgments should be delivered at a time of its choosing and in a definitive form. Published judgments must be accurate, complete and in final form. Leaks of draft judgments could undermine the authority of the court and its judgments.

Secondly, the Attorney General has correctly referred to the powerful public interest in the court’s being able to circulate draft judgments confidentially among the parties prior to their being handed down in complex and important cases so that typographical mistakes and other errors can be addressed and a final definitive version of the judgment can be handed down, so that the parties can prepare submissions on consequential matters and so that the parties can prepare themselves for the consequences of the judgment becoming public. These are matters of importance to the administration of justice. If the confidentiality of the process is not respected, it will have to be abandoned and these benefits will be lost. In this regard we also note that in October 2020 the Attorney General had cause to issue a media advisory notice drawing attention to the importance of this confidentiality. In our view, this reflects the importance of the procedure and the need to protect it from abuse.

Thirdly, the outcome of the appeal and the respondent's comments on it were published very widely before hand down. It was clearly the intention of the respondent to publish the result and his comments on it as widely as possible.

Fourthly, the respondent's statements were in terms which defied the authority of the court and which could encourage others to disobey the prohibition on publication and to disclose this or other draft judgments.

So far as the mens rea of a criminal contempt of court is concerned, we are satisfied to the criminal standard that the respondent’s breach of confidentiality was deliberate and in breach of a court order of which the respondent was well aware. In our view, that is sufficient for present purposes (see Solicitor General v Cox at paras 69 and 73) and it is not necessary for the applicant to prove an ulterior intention to interfere with the administration of justice. However, in any event, we are also satisfied to the criminal standard that in publishing the judgment in breach of the embargo the respondent did have a specific intention to interfere with the administration of justice. Such an intention may be readily inferred here. The respondent is a barrister who would have been well aware of the purpose of the condition of confidentiality attaching to draft judgments and the significance of its breach. He knew that the prohibition on publication was intended to serve the interests of justice. Nevertheless, as he stated in his personal statement, he took the deliberate decision to break the embargo as an act of civil disobedience, knowing that it would be likely to be treated as a contempt of court. He wanted to demonstrate his deliberate defiance of the prohibition and to bring this to the attention of as large an audience as possible.

The respondent accepts that he was aware that he was breaking the court's confidentiality and that in practice the authorities were likely to pursue him for contempt of court. However, he submits that, at all times, he considered his action to be lawful. The respondent submits that the court should have regard to his intentions, beliefs and motivations in disclosing the result of the appeal. He submits that he was justified in doing so in breach of the order because this was a reasonable and proportionate measure to prevent harm to the public as a result of the catastrophe which he believes would be caused by global warming. To that end he has placed before this court material which we have read relating to what he sees as the erroneous approach of the Supreme Court and the consequences to which it will lead.

In our view, these matters do not assist the respondent in relation to the issue whether there has been a contempt of court.

First, the respondent submits that in order to prove contempt the applicant must prove a breach of confidence which cannot be made out here because there was an overriding public interest in disclosure which defeated the obligation of confidentiality. However, we are not concerned here with a contractual or equitable duty of confidentiality owed by the respondent. The respondent had been given a direction by the court not to disclose the draft judgment and he was bound to obey it unless there was a successful application to the court to vary it.

Secondly, for the same reason, this was an obligation prescribed by law in accordance with article 10(2) of the European Convention on Human Rights (“ECHR”). In any event, we have already referred to the fact that the respondent fully appreciated that his conduct would be likely to be treated as a contempt of court.

Thirdly, the respondent submits that he cannot have had the requisite mens rea to be in contempt of court because he was acting for the purpose of preventing serious harm to the public. There is, however, no defence available to the respondent arising out of his concerns or fears as to the consequences of the Supreme Court’s decision. There is here no defence of public interest. There is no such thing as a justifiable contempt of court; see Attorney General v Times Newspapers Ltd [1974] AC 273, 302 per Lord Morris of Borth-y-Gest. The respondent was bound to observe the confidentiality attaching to the Supreme Court decision irrespective of any such belief. In particular, it is clear on the authorities that a person may have an intention to interfere with the administration of justice even if he or she acts with the motive of securing what he or she considers to be a just outcome overall; see Connolly v Dale [1996] QB 120; Attorney General’s Reference No 1 of 2002 [2002] EWCA Crim 2392.

It was, in any event, not necessary for the respondent to disclose the result of the appeal in breach of the embargo, in order to permit or facilitate public scrutiny or criticism of the judgment which was to be handed down the following day. Once the judgment had been handed down, the parties, the media and the public were all free to scrutinise the judgment and to comment on it. On any view, the respondent’s conduct in disclosing the outcome of the appeal cannot reasonably be considered, as he suggests, “reasonable and proportionate action to prevent mass loss of life”.

Fourthly, the respondent submits that he was entitled to act as he did because he believed it was reasonably necessary to do so in order to protect the right to life in accordance with article 2 ECHR. In this regard he refers to the positive obligation on States to protect life under article 2. This submission was not entirely clearly formulated. If the respondent’s case is that the Supreme Court judgment violated article 2, then that could be tested in proceedings against the United Kingdom in Strasbourg. But, in any event, as we have explained, there was no rational connection between any breach of the embargo and the harm the respondent says he wished to prevent.

Fifthly, the respondent relies on the interpretative obligation under section 3 of the Human Rights Act 1998. The short answer to this submission is that we are not concerned here with any statutory obligations, including the provisions of the Contempt of Court Act 1981, but with contempt at common law.

Sixthly, the respondent relies on the criminal defence of necessity or duress of circumstances. We are of the clear view that there is no scope for the operation of the defence here, in circumstances where there was no requirement for action to be taken between the circulation in confidence of the draft judgment and the hand down of the final judgment.

Seventh and finally, the respondent submits that it was at all material times his belief that, had the Supreme Court properly understood the implications of its judgment on Heathrow expansion, it would have consented to the respondent’s course of action. This submission is entirely unrealistic. It had been made clear to the respondent that he was required not to disclose the outcome of the appeal until the judgment had been handed down. Moreover, hand down occurred the following day and thereafter the respondent, the media and all members of the public were free to criticise the judgment and it was open to the respondent to raise all of the issues which concerned him.

Section 12 of the Human Rights Act 1998 provides that the court must have particular regard to the importance of the Convention right of freedom of expression when considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression. We have taken full account of section 12. We have also given consideration to whether a finding of criminal contempt in this case is compatible with article 10 of the European Convention on Human Rights which provides in relevant part:

A permissible interference with freedom of expression must therefore be prescribed by law, must pursue one or more of the legitimate objectives in article 10(2) and must be necessary in a democratic society for the achievement of that aim. The last limb requires an assessment of the proportionality of the interference to the aim pursued.

In the present case, the prohibition on publication of the judgment of the Supreme Court prior to hand down did amount to a restriction on the disclosure of information. However, it was for a limited period only, from 9 December 2020, when the judgment was sent to the parties in draft in confidence, until hand down at 9.45 on 16 December 2020. Furthermore, it was for the specific purposes of enabling the parties to make suggestions for the correction of errors, prepare submissions on consequential matters and to prepare themselves for the publication of the judgment. It is important that the published text of a judgment of the court should be accurate, complete and in its final form. This restriction was clearly necessary in order to achieve the legitimate objective of maintaining the authority of the judiciary and judicial decisions and was a proportionate means of achieving that result.

For these reasons, we are satisfied that the conduct of the respondent constitutes a criminal contempt of court.

We turn therefore to consider what penalty is appropriate. The available penalties for an individual found in contempt of court are a term of imprisonment of up to two years (section 14, Contempt of Court Act 1981) or an unlimited fine. A sentence of imprisonment may be suspended.

General guidance as to the approach to penalty is provided in the Court of Appeal decision in Liverpool Victoria Insurance Co Ltd v Khan [2019] EWCA Civ 392; [2019] 1 WLR 3833, paras 57 to 71. That was a case of criminal contempt consisting in the making of false statements of truth by expert witnesses. The recommended approach may be summarised as follows:

Turning to the present case, in terms of culpability this was an interference with the administration of justice sufficiently serious to constitute a criminal contempt of court. The embargo on publication was intended to protect the operation of the legal system. The breach of the embargo was carried out intentionally and in full knowledge of the prohibition on disclosure. The respondent admitted in the contemporaneous documents that the breach of embargo was a considered act on his part. In addition, there was a clear intention to interfere with the administration of justice. The conduct in question was intended to attract publicity to conclusions in the judgment with which the respondent fundamentally disagreed. The respondent was deliberately disobeying the court’s embargo and abusing the court’s judgment hand down procedure in order to gain publicity.

In terms of harm, as a result of the respondent’s conduct the outcome of the appeal was published very widely on social media in advance of the hand down. This was as the respondent intended. This risks undermining respect for the confidential nature of the court’s judgment hand down procedure and may encourage others, dissatisfied by the impending outcome of the case, to do likewise. Deterrence is a relevant consideration in sentencing in such a case. It appears that little direct harm was caused as a result of the publication. It has not been suggested, for example, that this was a case where market-sensitive information was released prematurely to the public. The Attorney General accepts that the direct adverse consequences were limited. Nevertheless, the respondent’s conduct was damaging to the system whereby judgments are made available to the parties in advance of hand down, a system which is beneficial to the parties to civil litigation and to the courts.

The respondent was motivated by his concerns and fears relating to the consequences of global warming and his disagreement with the decision of the Supreme Court. However, this does not begin to justify his conduct. There is no principle which justifies treating the conscientious motives of a protester as a licence to flout court orders with impunity. It was, moreover, a futile gesture as the judgment would in any event have been available some 22 hours later for scrutiny and criticism by the media and the public. However, we do accept that greater clemency is normally required to be shown in cases of civil disobedience than in other cases; see Cuadrilla Bowland Ltd v Persons Unknown [2020] EWCA Civ 9; [2020] 4 WLR 29 and Cuciurean v Secretary of State for Transport [2021] EWCA Civ 357.

At 16.36 on 15 December 2020 the respondent was asked by the Registrar of the Supreme Court to remove the tweet which shared his statement until after the embargo was lifted the following morning. The respondent did not respond to the email. The tweet was not deleted. The respondent has not made any attempt to mitigate his conduct by admitting his contempt or by apology. On the contrary, he has remained unrepentant, save that he apologised for the inconvenience he had caused to the staff at the Supreme Court.

In considering what penalty to impose, we are mindful of article 10 ECHR. We have already referred to the governing principles and we have been referred helpfully to the judgment of the European Court of Human Rights in Cumpana & Mazare v Romania (2005) 41 EHRR 200, which we take fully into account.

Any penalty imposed must be necessary for the legitimate objective of maintaining the authority and impartiality of the judiciary and must be proportionate for that purpose. As a result, we have 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 we propose to impose is, in our view, a necessary and proportionate penalty for the purpose of maintaining the authority of the judiciary and its judgments.

We also take into account that the respondent is of positive good character.

In these circumstances, we propose to deal with this matter by the imposition of a fine. In coming to a conclusion as to the appropriate level of fine, we have taken account of the fact that the respondent faces disciplinary proceedings before his professional body. We have also taken account of what the respondent has told us about his income. We therefore impose a fine of £5,000. That fine will be 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.