Case Comment: Her Majesty’s Attorney General v Crosland [2021] UKSC 58

In this post, Leigh McLevy, trainee solicitor at CMS, comments on the decision in Her Majesty’s Attorney General v Crosland, a case which concerns an embargoed judgment and contempt of court.

Background

Mr Crosland appealed against a decision of the Supreme Court in which he was ordered to pay a fine of £5,000 to HM Paymaster General, and costs of a further £15,000, for contempt of court. The court at first instance (“First Instance Panel”) was satisfied that Mr Crosland committed contempt of court by disclosing the outcome of the court’s judgment in R (on the application of Friends of the Earth) v Heathrow Airport Ltd [2020] UKSC 52 (“Heathrow Judgment”) whilst still in draft and subject to embargo.

First Instance Panel Decision

Mr Crosland, an unregistered barrister, had been involved in the proceedings giving rise to the Heathrow judgment. The Heathrow case concerned the lawfulness of the Airports National Policy Statement (“ANPS”), particularly on whether the Secretary of State had failed to have proper regard to the Paris Agreement or to explain how the ANPS was compatible with the UK’s emissions targets. The Heathrow Judgment was circulated to the parties’ representatives on 9 December 2020 and it was to be handed down on the morning of 16 December 2020. Mr Crosland formed the view that there were inaccuracies in the draft and believed that the ANPS was misleading as it was presented as being compatible with the UK’s international obligations on climate change and failed to take the Paris Agreement targets into account.

On the morning of 15 December 2020, Mr Crosland sent an email to the Press Association in which he disclosed the outcome in Heathrow Judgment and outlined what he saw was the inaccuracies in the judgment. Additionally, he issued a statement on Plan B Earth’s Twitter account. Mr Crosland acted in the knowledge that the judgment was under embargo until the following morning and that his actions may be in contempt of court. It was Mr Crosland’s position that it was necessary to “sound the alarm early” and raise awareness of the issue before the judgment was released due to the possible impact on the climate.

On 10 May 2021 the First Instance Panel of Supreme Court Justices issued the decision on liability and penalty, finding Mr Crosland to be in contempt of court and ordered to pay a fine of £5,000. A second decision on costs was delivered on 14 June 2021 in which Mr Crosland was ordered to pay £15,000 of the £22,504 of costs incurred.

Appeal to the Supreme Court

On 16 July 2021, Mr Crosland filed a notice of appeal on four grounds to which the Attorney General filed a notice of objection. The Attorney General submitted that there was no right of appeal from a decision of the Supreme Court and raised as a preliminary issue whether the court (“the Appeal Panel”) had jurisdiction to entertain the appeal.

Preliminary Issue – Jurisdiction

Mr Crosland sought to appeal against the order, on the basis that he had not been in contempt at all, and against the order for costs. Permission to appeal was granted by the same panel which heard the contempt application, and it was to be heard before a panel of five judges, none of whom had been involved either in the proceedings in the Heathrow Judgment or in the contempt application. The Appeal Panel decided that they had jurisdiction to hear the appeal. The basis for the jurisdiction is that where a decision such as contempt of court which can attract a custodial sentence, s 13 of the Administration of Justice Act 1960 can be read to include appeals from the Supreme Court to a separate panel of the same court in such limited circumstances. The court noted that “it is open to pave the way for a procedural route by which a substantive right may be exercised.”

Grounds 1 and 2

Mr Crosland appealed on the grounds that 1) the First Instance Panel erred in its approach to considering the relevance of Mr Crosland’s beliefs and motivations namely whether his breach of the embargo was a proportionate response to the suppression of evidence about the dangers of the Heathrow airport expansion and 2) the First Instance Panel failed to mention and therefore wrongly disregarded a letter written by leading scientists (“the Scientists Letter”) which demonstrated, amongst other things, the efficacy of Mr Crosland’s tactic of breaching the embargo. Both grounds were rejected on appeal. The Appeal Panel were not satisfied that Mr Crosland’s submission that his breach of the embargo drew facts to the attention of the public in relation to the impact on climate change would have otherwise passed unnoticed as he would have been free to comment and criticise the judgment the very next day. Further, the Scientists Letter did not suggest that its signatories only became aware of the Heathrow Judgment and its contents as a result of Mr Crosland’s breach or that they would not have participated in the public discussion that followed its release.

Ground 3
The third ground of appeal was that the First Instance Panel was not an independent and impartial tribunal as required by Article 6(1) ECHR and the Human Rights Act 1998. Mr Crosland submitted that the First Instance Panel was not independent and impartial and that the fair-minded observer would conclude that there was a real possibility that the Panel was biased. This was rejected by the Appeal Panel. Two main reasons were provided – 1) the decision to bring proceedings for contempt was taken by the Attorney General, to whom the matter had been referred by the President of the Supreme Court and was not taken by the court itself and 2) the First Instance Panel did not include any of the judges who sat on the Heathrow Judgment appeal.

Ground 4

Mr Crosland submitted that pursuant to the Attorney General’s obligations of disclosure under Article 6 ECHR and s 3 of the Criminal Procedure Investigations Act 1997, Mr Crosland should have been given information about an alleged breach of the embargo on court judgments in the case of Begum v Special Immigration Appeals Commission [2020] EWCA Civ 918. It was held that this submission had no force because it was irrelevant to the decision as to whether Mr Crosland was in contempt of court, or the punishment for contempt, to consider what the Attorney General may or may not have done in a different case.

Ground 5

This submission was on the basis that the court’s ruling on costs was oppressed and unjust. Mr Crosland submitted that the cost order of £15,000 should not be greatly at variance with any fine imposed and that as he has a modest income, the overall financial penalty of £20,000 for an act of conscience is oppressive, arbitrary, and disproportionate. This ground was rejected by the Appeal Panel. The award of costs is a matter for the discretion of the court making the order and the appeal court should only interfere if there has been an error of legal principle, which the Appeal Panel did not find.

Decision

Overall, Mr Crosland’s appeal was dismissed by the Appeal Panel of the Supreme Court on all grounds.

Comment

This case demonstrates that it is, in limited circumstances, possible for the Supreme Court to act as an independent and impartial tribunal to entertain appeals on decisions made by the Supreme Court itself when exercising its jurisdiction on contempt of court and where the Appeal Panel is made up of judges who did not sit on the First Instance Panel.

Further, the judgment shows that contempt of court is taken very seriously and is difficult to defend, even where there may be a public interest argument or a moral reason to disclose the information and high penalties and cost orders may be imposed.

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