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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Her Majesty's Attorney General v Crosland [2021] UKSC 15 (10 May 2021) URL: http://www.bailii.org/uk/cases/UKSC/2021/15.html Cite as: [2021] UKSC 15, [2021] 4 WLR 103 |
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JUDGMENT
Her Majesty’s Attorney General (Applicant) v Crosland (Respondent)
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before
Lord Lloyd-Jones Lord Hamblen Lord Stephens
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JUDGMENT GIVEN ON |
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10 May 2021 |
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Heard on 10 May 2021 |
Applicant |
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Respondent |
Aidan Eardley |
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Timothy Crosland |
(Instructed by The Government Legal Department) |
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JUDGMENT OF THE COURT:
1. 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 grounds of committal
4. 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.”
Permission
5. 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.
The rubric
“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 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).”
8. 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.”
Events following the circulation of the draft judgment
11. 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.
12. 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.
13. 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.
14. On 16 December a link to the respondent’s statement was posted on Plan B’s website.
15. style='font:7.0pt "Times New Roman"'> 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 issues for decision
Findings of fact
17. We make the following findings of fact which we find proved to the criminal standard.
18. 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.
21. 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).
Civil or criminal contempt?
23. 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.
The respondent’s case on liability
33. 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.
Article 10 ECHR
“(1) Everyone has the right of freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers ...
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary.”
Conclusion on liability
Penalty
44. 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:
1. The court should adopt an approach analogous to that in criminal cases where the Sentencing Council’s Guidelines require the court to assess the seriousness of the conduct by reference to the offender’s culpability and the harm caused, intended or likely to be caused.
2. In light of its determination of seriousness, the court must first consider whether a fine would be a sufficient penalty.
3. If the contempt is so serious that only a custodial penalty will suffice, the court must impose the shortest period of imprisonment which properly reflects the seriousness of the contempt.
4. Due weight should be given to matters of mitigation, such as genuine remorse, previous positive character and similar matters.
5. Due weight should also be given to the impact of committal on persons other than the contemnor, such as children of vulnerable adults in their care.
6. There should be a reduction for an early admission of the contempt to be calculated consistently with the approach set out in the Sentencing Council’s Guidelines on Reduction in Sentence for a Guilty Plea.
7. Once the appropriate term has been arrived at, consideration should be given to suspending the term of imprisonment. Usually the court will already have taken into account mitigating factors when setting the appropriate term such that there is no powerful factor making suspension appropriate, but a serious effect on others, such as children or vulnerable adults in the contemnor's care, may justify suspension.
47. 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.
48. 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.
51. We also take into account that the respondent is of positive good character.