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Supreme Court upholds contempt finding over lawyer who disclosed one of its draft judgments

The Supreme Court has upheld a decision by a panel of three of its own judges that a lawyer was in contempt of court for disclosing the outcome of one of the court’s rulings to the public while it was in draft and subject to embargo, knowing that such disclosure was prohibited.

The judgment disclosed by Tim Crosland was Friends of the Earth Ltd & Ors, R (on the application of) v Heathrow Airport Ltd [2020] UKSC 52.

On 10 May 2021, the three-justice panel (the “First Instance Panel”) also imposed a fine of £5,000 on Mr Crosland and ordered him to pay a proportion of the Attorney General’s costs. He appealed.

Two issues arose in Her Majesty’s Attorney General (Respondent) v Crosland (Appellant) [2021] UKSC 58 On appeal from [2021] UKSC 15:

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  1. Whether the Supreme Court had jurisdiction to entertain an appeal against orders of the Supreme Court acting as a court of first instance in the exercise of its contempt jurisdiction.
  2. Whether the First Instance Panel was correct to hold Mr Crosland in contempt of court and to order the amount of costs that it did.

Lord Briggs, Lord Kitchin, Lord Burrows and Lady Rose (Lady Arden dissenting) found that the Supreme Court had jurisdiction to hear the appeal. [This article is largely based on the Supreme Court’s press summary]

The majority held that section 13 of the Administration of Justice Act 1960 gave a right of appeal from an exercise by the Supreme Court of its contempt jurisdiction, acting at first instance. Section 13 gave such a right of appeal from any court (subject to irrelevant exceptions) and expressly included the Supreme Court within the meaning of ‘court’. It was not a conceptual impossibility to appeal from one panel of the Supreme Court to another larger panel.

Lady Arden considered that the Supreme Court did not have jurisdiction under section 13 to hear Mr Crosland’s appeal. She considered that the Supreme Court had inherent jurisdiction to review an order should it consider that there had been an injustice of a particularly serious nature. The threshold of seriousness was not passed in this case and the inherent jurisdiction should not be exercised.

Mr Crosland’s appeal was meanwhile unanimously dismissed on the merits.

The Supreme Court held that the First Instance Panel made no material error in their consideration of the factual context of Mr Crosland’s actions, and had been right to find that Mr Crosland’s conduct amounted to a criminal contempt of court.

It also found that the First Instance Panel was an independent and impartial tribunal and there was no apparent bias. The decision to bring proceedings for contempt was taken by the Attorney General, not by the Supreme Court itself. Further, the First Instance Panel did not include any of the justices who sat on the appeal relating to the judgment which was disclosed.

The Supreme Court also concluded that the ruling on costs was not oppressive or unjust.

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