Her Majesty’s Attorney General v Crosland (Contempt Judgment)

The Attorney General applied for permission to pursue committal proceedings against Mr Timothy Crosland for breach of an embargo on a draft Supreme Court judgment in R (Friends of the Earth Ltd) v Heathrow Airport Ltd [2020] UKSC 52. The court granted permission and found that Mr Crosland deliberately disclosed the result of the appeal in breach of the confidentiality rubric and Practice Direction 6 (paras 6.8.3–6.8.5), thereby interfering with the administration of justice to a degree sufficient to constitute criminal contempt. The court held that the respondent was aware of the embargo, that his conduct was intentional, and that no public‑interest or necessity defence was available. Consideration of article 10 ECHR and section 12 Human Rights Act 1998 led the court to conclude that the temporary confidentiality restriction was a prescribed, legitimate and proportionate interference. The court imposed a fine of £5,000 under the Contempt of Court Act 1981 (section 14 and enforcement under section 16(1)(a)).

This application concerned alleged contempt by Mr Timothy Crosland, an unregistered barrister who had been sent a draft Supreme Court judgment in confidence in the Heathrow Airport appeal. The Attorney General sought permission to pursue committal for contempt after Lord Reed referred the suspected breach. The relief sought was committal or such other penalty as the court considered appropriate for criminal contempt.

The court framed the issues as: (i) whether the respondent was responsible for the disclosure to the public before hand down; (ii) whether he was aware of the embargo; (iii) whether the disclosure constituted or created a real risk of interference with the administration of justice serious enough to amount to criminal contempt; and (iv) whether he had the requisite mens rea or specific intention to interfere with the administration of justice.

The court found the following facts proved to the criminal standard: the draft judgment had been circulated in confidence (Practice Direction 6, paras 6.8.3–6.8.5); the respondent emailed a statement disclosing the result to the Press Association on 15 December 2020 and published the same statement on Plan B Earth’s Twitter account; he admitted the publications and that he knew they breached the embargo; and the publications were widely re‑tweeted and reported before the judgment was handed down on 16 December 2020.

On liability the court applied established authorities on criminal contempt, holding that deliberate breaches of judicially imposed confidentiality by a party’s representative interfere with the court’s control of proceedings and may undermine the authority and finality of judgments. The court concluded that the respondent’s conduct passed the threshold of seriousness: the embargo served legitimate administration‑of‑justice purposes, the disclosure was deliberate and designed to attract publicity, and the respondent had the necessary intention. The court rejected defences advanced by the respondent, including public interest, article 2 ECHR claims, reliance on section 3 Human Rights Act 1998, and necessity/duress of circumstances, finding no rational connection between the breach and the prevention of harm.

On article 10 ECHR and section 12 HRA the court accepted that freedom of expression is important but concluded that the temporary restriction was prescribed by law, pursued legitimate aims (maintaining authority and impartiality of the judiciary and preventing disclosure of information received in confidence) and was proportionate.

On penalty, applying guidance analogous to criminal sentencing, the court assessed culpability and harm, noted some mitigating features (positive character, motives of civil disobedience), but also the deliberate nature of the breach and lack of remorse. Weighing proportionality and deterrence, the court imposed a fine of £5,000, enforceable under section 16(1)(a) of the Contempt of Court Act 1981.

The court granted permission to pursue committal and held that Mr Crosland committed a criminal contempt of court by deliberately disclosing the embargoed draft judgment in breach of Practice Direction 6. He was aware of the embargo, his conduct interfered with the administration of justice and he had the requisite intention. No available defence (public interest, necessity, Article 2, or HRA section 3) justified the breach. The court imposed a fine of £5,000 and refused to discharge the finding of contempt.

The President of the Supreme Court referred the alleged breach of the embargo to the Attorney General. The Attorney General applied for permission to pursue committal proceedings against Mr Crosland; the Supreme Court granted permission and heard the application on 10 May 2021, giving judgment on 10 May 2021 (this judgment: [2021] UKSC 15).