HM Attorney General v Crosland
| Jurisdiction | England & Wales |
| Judge | Lord Lloyd-Jones,Lord Hamblen,Lord Stephens,Lloyd-Jones,Hamblen,Stephens |
| Judgment Date | 10 May 2021 |
| Neutral Citation | [2021] UKSC 15 |
| Court | Supreme Court |
| Date | 10 May 2021 |
[2021] UKSC 15
Lord Lloyd-Jones
Lord Hamblen
Lord Stephens
Supreme Court
Hilary Term
Applicant
Aidan Eardley
(Instructed by The Government Legal Department)
Respondent
Timothy Crosland
Heard on 10 May 2021
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:
The applicant applies for the committal of the respondent or such other penalty as the court considers appropriate for his contempt of court on the following grounds:
“1. On 7 and 8 October 2020 the court heard an appeal in the case of R (Friends of the Earth Ltd) v Heathrow Airport Ltd. The respondent to this application represented the second respondent to the appeal, Plan B Earth, in his capacity as director of that organisation.
2. On 9 December 2020, a copy of the court's draft judgment in the appeal was circulated to the parties' representatives in accordance with paragraphs 6.8.3 to 6.8.5 of Practice Direction 6. The draft was marked ‘in confidence’. The rubric on the title page stated that those to whom the content of the draft are disclosed must take all reasonable steps to preserve their confidentiality and that any breach of these obligations may be a contempt of court. The covering email via which the draft judgment was circulated repeated that the draft was strictly confidential.
3. On the morning of 15 December 2020, the day before judgment in the appeal was due to be handed down, the respondent sent an email to the Press Association, and, it is to be inferred, other persons unknown, containing a personal statement in which he disclosed the outcome of the appeal. The said statement included the words, ‘I have taken the decision to break the embargo on that decision as an act of civil disobedience. This will be treated as “contempt of court” and I am ready to face the consequences’.
4. At around 12.41 pm on 15 December 2020 the respondent published the same statement on Twitter via the account of Plan B Earth (@PlanB_earth). The said account has some 3,585 followers.
5. At all material times the respondent was aware that he had been sent the draft judgment in confidence and that he was prohibited from disclosing its contents to the public prior to the judgment being handed down.
6. As a result of the publication of the said statement by the respondent, and as he intended or was reasonably foreseeable, the outcome of the appeal was widely publicised online in the national media on 15 December and the morning of 16 December prior to the judgment being handed down at 09.45 am on 16 December 2020 by Reuters, City AM, The Independent, the Daily Telegraph and the Mail Online. The statement was also re-tweeted in advance of the judgment being handed down by followers of Plan B Earth, including the organisation Extinction Rebellion, which itself had some 55,600 followers at the time.
7. By disclosing the outcome of the appeal to the public as set out above, knowing that such was prohibited by the court, the respondent interfered with or created a real risk of interference with the administration of justice and thereby committed contempt of court.”
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:
“IN CONFIDENCE
This is a judgment to which paragraphs 6.8.3 to 6.8.5 of Practice Direction 6 apply. The contents of this draft are confidential initially to the parties' legal representatives and, when disclosed to the parties in the 24 hours prior to delivery, also to the parties themselves. Those to whom the contents are disclosed must take all reasonable steps to preserve their confidentiality. No action is to be taken in response to them before judgment is formally pronounced unless this has been authorised by the court. A breach of any of these obligations may be treated as a contempt of court.”
The email from the judgments clerk sent with the draft judgment invited corrections to the draft judgment. It continued:
“The judgment is strictly confidential until given. The contents of these documents are not for publication, broadcast or use on club tapes before judgment has been promulgated. The documents are issued in advance by the Justices of the Supreme Court on the understanding that no approach is made to any organisation or person about their contents before judgment is given (see paragraph 6.8.3 to 6.8.5 of Practice Direction 6).”
The Practice Direction states in relevant part:
“6.8.3 The judgment of the Court is made available to certain persons before judgment is given. When, for example, judgment is given on a Wednesday morning, it is made available to counsel from 10.30 am on the previous Thursday morning. In releasing the judgment, the Court gives permission for the contents to be disclosed to counsel, solicitors (including solicitors outside London who have appointed London agents) and in-house legal advisers in a client company, Government department or other body. The contents of the judgment and the result of the appeal may be disclosed to the client parties themselves 24 hours before the judgment is to be given unless the Court or the Registrar directs otherwise. A direction will be given where there is reason to suppose that disclosure to the parties would not be in the public interest.
6.8.4 It is the duty of counsel to check the judgment for typographical errors and minor inaccuracies. In the case of apparent error or ambiguity in the judgment, counsel are requested to inform the Judicial Support section as soon as possible. This should be done by email to Judicial Support no later than two working days before the date judgment is to be given. The purpose of disclosing the judgment is not to allow counsel to re-argue the case, and attention is drawn to the opinions of Lord Hoffmann and Lord Hope in R (Edwards) v Environment Agency [2008] UKHL 22; [2008] 1 WLR 1587.
6.8.5 Accredited members of the media may on occasion also be given a printed copy of the judgment in advance by the Court's communications team. The contents of this document are subject to a strict embargo and are not for publication, broadcast or use on club tapes before judgment has been delivered. The documents are issued in advance solely at the Court's discretion, and in order to inform later reporting, on the strict understanding that no approach is made to any person or organisation about their contents before judgment is given.”
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...
To continue reading
Request your trial
-
HM Attorney General v Crosland (No. 2)
...[2021] UKSC 58 before Lord Briggs Lady Arden Lord Kitchin Lord Burrows Lady Rose Supreme Court Michaelmas Term On appeal from: [2021] UKSC 15 Appellant Tim Crosland (Instructed — in person) Respondent Aidan Eardley (Instructed by The Government Legal Department) Heard on 18 October 2021 Lad......
-
The Secretary of State for Transport v Elliott Cuciurean
...to contempt. They imposed a fine on Mr Crosland of £5,000. The panel also considered the question of costs in a separate judgment: [2021] UKSC 15 (not reported at [2021] 4 WLR 103). At [5] they rejected the argument that the practice in criminal cases applied to a civil contempt. But they......
-
National Highways Ltd v Ana Heyatawin
...and how the order should be enforced. 6 A three-judge panel of the Supreme Court confirmed recently in Attorney General v Crossland [2021] UKSC 15, at [9], that “[w]hen a respondent is found to be in contempt of court, there will usually be no principled basis for opposing a costs order… N......
-
Albert Court (Westminster) Management Company Ltd v Victoria Fetaimia
...SA v Mex Clearing Ltd. 22 [1999] QB 966. 23 [2014] UKSC 25, [2015] AC 588. 24 Presumably a reference to Attorney-General v Crosland [2021] UKSC 15, [2021] 4 WLR 103, appeal dismissed [2021] UKSC 58, [2022] 1 WLR 367; R (Counsel General for Wales) v Secretary of State for Business, En......