Her Majesty’s Attorney General v Crosland

Deliberate publication of an embargoed draft judgment constitutes criminal contempt where it seriously interferes, or creates a sufficiently serious risk of interference, with the administration of justice. A deliberate breach of a court-imposed confidentiality obligation, with knowledge of that obligation, is sufficient. An ulterior intention to interfere is unnecessary.

Public interest, conscientious motivation and a desire to secure a just outcome provide no defence. A temporary embargo is compatible with article 10 where it is prescribed by law, serves the authority of the judiciary and is proportionate. Penalty requires assessment of culpability and harm. Civil disobedience may call for greater clemency, but does not confer a licence to disobey court orders.

In Her Majesty’s Attorney General v Crosland, the Attorney General sought permission to pursue committal proceedings against an unregistered barrister who had represented a party in R (Friends of the Earth Ltd) v Heathrow Airport Ltd [2020] UKSC 52. The respondent had received the draft judgment under an express embargo. On the day before hand down, he deliberately disclosed the appeal’s outcome to the Press Association and through social media.

The court had to determine whether the respondent knowingly made the disclosures, whether his conduct seriously interfered or created a real risk of interference with the administration of justice, and whether criminal contempt required a specific intention to cause that interference. It also considered claimed public-interest, human-rights and necessity justifications, followed by the appropriate penalty.

1. Permission granted; criminal contempt proved. The application disclosed a reasonable basis for committal and it was in the public interest to hear it. The court was satisfied to the criminal standard that the respondent deliberately disclosed the appeal’s outcome, knowing that publication was prohibited. His conduct constituted criminal contempt.

2. Criminal contempt requires conduct going beyond mere non-compliance and involving a serious interference with the administration of justice, as stated in Director of the Serious Fraud Office v O’Brien [2014] UKSC 23. The embargo protected the court’s control of its proceedings. It ensured that judgments were delivered at the court’s chosen time in an accurate, complete and definitive form. Confidential circulation also permitted correction of errors, preparation of consequential submissions and preparation for publication.

   The seriousness threshold was crossed. The disclosure was wide, intentional and expressed in defiance of the court. It risked undermining the advance-circulation procedure and encouraging future breaches.

3. A deliberate breach of a court-imposed confidentiality obligation, with knowledge of that obligation, was sufficient mens rea. Proof of an ulterior intention to interfere with justice was unnecessary. The court nevertheless found that specific intention proved because the respondent knowingly used the breach as an act of public defiance intended to attract extensive attention.

4. The respondent remained bound by the court’s direction unless it was varied upon a successful application. Neither an asserted overriding public interest nor a conscientious motive supplied a defence. There is no justifiable contempt of court. A person may intend to interfere with justice while seeking what that person regards as a just overall outcome.

   Article 2 supplied no justification because there was no rational connection between premature disclosure and prevention of the alleged harm. Section 3 of the Human Rights Act 1998 did not assist because the proceedings concerned common-law contempt rather than statutory obligations. Necessity or duress of circumstances was unavailable because no action was required during the short interval before hand down.

5. The embargo restricted expression but was prescribed by law, pursued the legitimate objective of maintaining the authority of the judiciary, and was necessary and proportionate under article 10. It lasted only until hand down and served specific procedural purposes. Public scrutiny and criticism remained unrestricted once the judgment was delivered.

6. Penalty. Applying the approach in Liverpool Victoria Insurance Co Ltd v Khan [2019] EWCA Civ 392, the court assessed culpability and actual, intended or likely harm before considering whether a fine sufficed. The deliberate abuse of the hand-down procedure, wide publication, lack of apology and need for deterrence were serious. Limited direct harm, positive character, financial circumstances, prospective disciplinary proceedings and the greater clemency normally appropriate to civil disobedience favoured a non-custodial disposal.

   A necessary and proportionate fine of £5,000 was imposed. Under section 16(1)(a) of the Contempt of Court Act 1981, it was enforceable as a High Court judgment debt.

1. United Kingdom Supreme Court: Following a referral by the President of the Supreme Court, the Attorney General applied directly for permission to pursue committal proceedings. The court granted permission, found the respondent in criminal contempt and imposed a £5,000 fine. No appeal from a lower court was before it.