Her Majesty’s Attorney General v Crosland

A defendant has a statutory right under section 13(1) of the Administration of Justice Act 1960 to appeal from a Supreme Court panel exercising original contempt jurisdiction. The appeal may be heard by a larger, differently constituted panel of that court.

A time-limited embargo on a draft judgment may proportionately restrict freedom of expression to protect the administration of justice. A conscientious motive, desire for publicity or asserted public interest does not justify deliberately breaching it where lawful criticism remains possible after hand down. Apparent bias arises only where the fair-minded and informed observer would see a real possibility of bias.

An unregistered barrister deliberately disclosed the result of an embargoed Supreme Court judgment concerning Heathrow expansion on the day before hand down. He sought greater publicity for criticisms based on climate-change concerns.

A three-Justice Supreme Court panel found criminal contempt, imposed a £5,000 fine and ordered payment of £15,000 towards the Attorney General’s costs: [2021] UKSC 15; [2021] 4 WLR 103. Permission was granted for an appeal to a different panel of five Justices.

The preliminary issue was whether section 13 of the Administration of Justice Act 1960 authorised an appeal from one Supreme Court panel to another. The merits concerned freedom of expression, the alleged failure to consider the contemnor’s motives and supporting evidence, impartiality, disclosure and costs.

1. Appeal dismissed by a majority. Lord Briggs, Lord Kitchin, Lord Burrows and Lady Rose held that the court had jurisdiction under section 13(1) of the Administration of Justice Act 1960. Its general words confer an appeal from any court exercising contempt jurisdiction, and the statutory definition includes the Supreme Court. Nothing in the remaining subsections expressly excludes an order made in the Supreme Court’s original contempt jurisdiction. The absence of a specified appellate route did not remove the substantive right. Rule 9(7) of the Supreme Court Rules 2009 permitted an appropriate procedure to be adopted. An appeal from a panel of three Justices to a different panel of five was not conceptually impossible: paras [30]–[53].

2. The majority held that the First Instance Panel properly considered the contemnor’s beliefs, purposes and climate-change concerns. A court-imposed embargo protects the accuracy and finality of judgments and the court’s control of its proceedings. It was limited in duration and delayed criticism only until hand down. The contemnor could also have sought variation or discharge. There was no relevant connection between premature disclosure and prevention of the asserted harm, and no persuasive evidence that equivalent publicity could not have been obtained after hand down: paras [54]–[77].

3. The proportionality analysis required by article 10 ECHR did not invalidate the contempt finding. The approach in Director of Public Prosecutions v Ziegler [2021] UKSC 23 required a fact-specific assessment, but concerned materially different deliberate obstruction under a statutory defence of lawful excuse. Here the contemnor knowingly defied a time-limited court direction. The embargo and contempt finding were proportionate means of maintaining the authority and administration of justice: paras [65]–[74].

4. The panel was independent and impartial. Applying the fair-minded and informed observer test, there was no real possibility of bias. The Attorney General, rather than the court, decided to prosecute; none of the Justices who heard the committal application had sat in the Heathrow appeal; and the hearing occurred months later. Kyprianou v Cyprus (2007) 44 EHRR 27 was distinguished: paras [78]–[86].

5. Assuming analogous disclosure obligations applied, information about an unrelated embargo breach was irrelevant to liability or penalty. The costs order disclosed no error of legal principle. The First Instance Panel had considered means, proportionality, the fine and article 10, and no arithmetical relationship between fine and costs was required: paras [87]–[94].

6. Lady Arden agreed that the application should be dismissed but dissented on jurisdiction. She considered that section 13 authorised only a vertical appeal to a higher court. She would instead have invoked the Supreme Court’s inherent jurisdiction only to correct particularly serious unfairness, which was not established: paras [96]–[153].

1. United Kingdom Supreme Court, appellate panel: By a majority, dismissed the appeal against the contempt and costs orders: [2021] UKSC 58.
2. United Kingdom Supreme Court, First Instance Panel: Found criminal contempt, imposed a £5,000 fine and subsequently ordered payment of £15,000 towards the Attorney General’s costs: [2021] UKSC 15; [2021] 4 WLR 103.