HM Attorney General v Crosland (No. 2)
| Jurisdiction | England & Wales |
| Judge | Lord Briggs,Lord Kitchin,Lord Burrows,Lady Rose,Lady Arden |
| Judgment Date | 20 December 2021 |
| Neutral Citation | [2021] UKSC 58 |
| Court | Supreme Court |
[2021] UKSC 58
Lord Briggs
Lady Arden
Lord Kitchin
Lord Burrows
Lady Rose
Appellant
Tim Crosland
(Instructed — in person)
Respondent
Aidan Eardley
(Instructed by The Government Legal Department)
Heard on 18 October 2021
Lord Briggs, Lord Kitchin, Lord Burrows AND
Mr Timothy Crosland appeals against the order of the Supreme Court dated 10 May 2021 in which he was ordered to pay a fine of £5,000 to HM Paymaster General for contempt of court and ordered, further, to pay the Attorney General's costs of the committal application in the sum of £15,000. The order recited in its preamble that the court was satisfied that, by disclosing the outcome of the court's judgment in R (on the application of Friends of the Earth) v Heathrow Airport Ltd on 15 December 2020, while the judgment was still in draft and subject to embargo, knowing that such disclosure was prohibited by the court, Mr Crosland committed contempt of court. That order gave effect to two judgments of the court, both of which Mr Crosland challenges in this appeal. We refer to the panel of Supreme Court Justices who delivered those judgments (Lords Lloyd-Jones, Hamblen and Stephens JJSC) as the “First Instance Panel”. The first judgment was delivered on 10 May 2021 setting out the First Instance Panel's decision on liability and penalty: [2021] UKSC 15; [2021] 4 WLR 103 (“the Contempt Judgment”) and the second, delivered on 14 June 2021, determined the issues as to costs (“the Costs Judgment”).
The events leading up to the order under appeal are described in detail in the Contempt Judgment so only a summary is needed here. Mr Crosland, who is an unregistered barrister, had been involved in the proceedings giving rise to the judgment which he disclosed on 15 December 2020 (“the Heathrow judgment”) because the charity of which he is a director, Plan B Earth, had been the second respondent in the case of R (Friends of the Earth Ltd) v Heathrow Airport Ltd. That case concerned the lawfulness of the Airports National Policy Statement, published by the Secretary of State for Transport on 5 June 2018 and designated as national policy under the Planning Act 2008 on 26 June 2018 (“the ANPS”). The challenges to the lawfulness of the ANPS focused largely 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 United Kingdom's emissions targets. The Paris Agreement was adopted by the parties to the United Nations Framework Convention on Climate Change in December 2015 and ratified by the United Kingdom on 17 November 2016.
The hearing of the appeal to the Supreme Court in R (Friends of the Earth Ltd) v Heathrow Airport Ltd took place on 7 and 8 October 2020. On 9 December 2020, a copy of the court's draft of the Heathrow judgment was circulated to the parties' representatives in accordance with paras 6.8.3 to 6.8.5 of the court's Practice Direction 6. In the draft judgment, the court held that the ANPS was not unlawful and allowed the appeal against the contrary conclusion of the Court of Appeal. There is no doubt that Mr Crosland was well aware, when he received the draft Heathrow judgment, that he was bound not to disclose the result of the appeal or the contents of the draft to anyone before the hand down, which he knew was fixed for the morning of 16 December 2021.
When Mr Crosland read through the draft, he formed the view that there were some inaccuracies in it. In particular, he believed and still believes that the ANPS is misleading because the policy on the third runway at Heathrow was presented by the then Secretary of State for Transport as being compatible with the United Kingdom's international obligations on climate change. Such a reassurance by the Secretary of State implies, Mr Crosland asserts, that the ANPS has been assessed against the Paris Agreement obligation to bring carbon emissions to net zero by 2050. Mr Crosland believes further that this reassurance is also misleading because the policy was assessed in June 2018 only against an earlier, discredited goal of limiting temperature rises to 2°C contained in the Climate Change Act 2008, and was not assessed against the more challenging target set by the Paris Agreement. Mr Crosland thought on reading the draft Heathrow judgment that it perpetuated this misleading presentation by failing to highlight the fact, as he sees it, that the Secretary of State had failed to take the Paris Agreement target into account when assessing the Heathrow expansion plan. On the contrary, Mr Crosland complains, the court stated that on a correct understanding of the ANPS and the Secretary of State's evidence, which the court had analysed in the preceding paragraphs, the Secretary of State had taken the Paris Agreement into account in the limited way the court there described. The question was, the court said, whether the Secretary of State had acted irrationally in omitting to take the Paris Agreement further into account, or to give greater weight to it, than in fact he did: see para 125 of the Heathrow judgment.
Mr Crosland entirely properly drew to the attention of the court the point that he wanted to make in the comments that he sent to the court in response to the draft. He was told that the draft judgment would be amended to acknowledge the argument he had advanced but that there would be no substantive change to the text. On the morning of 15 December 2020, Mr Crosland sent an email to the Press Association and possibly to other media organisations in which he disclosed the outcome of the Heathrow appeal and described what he saw as the inaccuracies in the Heathrow judgment. He issued a statement to similar effect on Plan B Earth's Twitter account. The Supreme Court's Communications Team sought to prevent the further dissemination of the embargo breach but with limited success. The court asked Mr Crosland to remove the statement he had shared on Twitter until 9:45 the next morning when the Heathrow judgment would be handed down. Mr Crosland did not respond and did not delete his tweet. 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 Heathrow judgment was handed down by the Supreme Court at 9:45 am on 16 December 2020: [2020] UKSC 52; [2020] PTSR 190.
At the hearing of this appeal, as at the hearing of the committal application, Mr Crosland was candid as to the motivation for his conduct on 15 December and thereafter. He accepted that he would have been free to make whatever comments or criticisms he wished of the Heathrow judgment if he had waited till 9:45 am the following day. But, in his view, that would not have generated the same level of publicity for his complaints about the judgment as he was able to generate by breaching the embargo and presenting himself to the media as someone who was prepared to take a serious personal risk by so doing because he felt so strongly about the point he was making. His assessment was that if he waited to make his criticisms until the Heathrow judgment was available to be scrutinised by everyone, his points would be lost in the general coverage of the judgment and then the rolling 24 hour news cycle would swiftly roll on to other matters. By breaching the embargo, he made something unusual happen and that, he calculated, gave him a better chance of bringing his points to the public's attention. He therefore decided that breaching the embargo presented his best chance “of sounding the alarm loudly”.
On 17 December 2020, the Registrar of the Supreme Court, wrote to the Attorney General's office setting out what had happened, including the detail of the email exchanges between Mr Crosland and the court between 9 and 15 December. The letter closed:
“15. In the light of these events, Lord Reed has decided that the court should refer the matter to the Attorney General so that she can consider whether proceedings should be taken against Mr Crosland for contempt of court. Lord Reed also intends to make a complaint about Mr Crosland's conduct to the Bar Standards Board, so that it can consider whether disciplinary action should be taken.”
On 10 February 2021, after some correspondence between Mr Crosland and the Government Legal Department acting on behalf of the Attorney, the Attorney General issued an application for the committal of Mr Crosland for his alleged contempt of court. The Attorney's application stated that by disclosing the outcome of the appeal to the public, knowing that such was prohibited by the court, Mr Crosland interfered with, or created a real risk of interference with, the administration of justice and thereby committed contempt of court. The application was supported by an affidavit from a legal advisor to the Attorney. He described the Attorney's decision to bring proceedings as follows:
“20. The applicant has considered carefully whether it is in the public interest to bring these proceedings and has concluded that they are necessary to uphold the due administration of justice. In particular, the applicant has taken into account the powerful public interest in the courts being able to circulate draft judgments confidentially among the parties prior to being handed down in complex and important cases, so that typographical mistakes and other errors can be addressed and the parties can prepare themselves for the consequences of them becoming public. Indeed, it is of such significance that the applicant had cause to issue a media advisory notice in October 2020 drawing attention to the importance of observing this confidentiality. The applicant has also had regard to the deliberate nature of the...
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