HM Attorney General v Crosland (Rev1) [2021] UKSC 58 (20 December 2021)
Citation:HM Attorney General v Crosland (Rev1) [2021] UKSC 58 (20 December 2021).
Subjects invoked: 85. 'Public disorder'.89. 'Criminal punishment'.
Rule of thumb:How does the criminal punishment system work fundamentally? What type of punishment can you expect if you release a confidential draft Court Judgment early?
Background facts:
This case invoked the subjects of public disorder criminal offenes and punishment.
The material facts were that Tim Crosland, a barrister, was found guilty of contempt of Court when he released the confidential draft of the Judgment in the Heathrow Airport planning case early. Crosland was fined £7.5k for doing this and ordered to pay costs of £15k. All in, a punishment of £22.5k for the early release of a draft Court Judgment, and Crosland sought to challenge this punishment.
The prosecution essentially argued that this case invoked a simple interpretation of section 13 of the Administration of Justice Act 1960. They argued that the total £22,500 punishment was well within the statutory limits of punishment set in the 1960 Act by Parliament for this type of crime, meaning the Court was within their discretion in deciding an appropriate punishment. They argued there were no exceptional circumstances that would mean Crosland could successfully appeal a punishment that was well within the scope of the limits set out by statute, and the Court did not even have grounds to hear an appeal on it.
Crosland argued that the size of the punishment was grossly disproportionate for the carrying out of an extremely minor criminal offence. Moreover, he argued that no embarrassment was caused which was the point of the law - he argued the Judgment was impeccably written, and he did not see any corrections that he could make, meaning that the Court would not be embarrassed by the draft being released early. Indeed, he presented documentary evidence showing that he drove forward intellectual debate across the world on a critical environmental matter. He argued that this should be considered in the context of his ‘right to freedom of expression’. Crosland argued in addition that this size of fine was particularly disproportionate given the size of the fine in relation to his disposable income – he argued that a lot of advocates/barristers like himself who pursued noble cases at the Bar made a relatively modest living, and that this size of fine being dished out to him - a sizable percentage of after-tax income, was hugely unfair. He further argued that other procedural grounds were breached in the course of the trial – like evidence that he could have used to make arguments to mitigate his punishment not being given to him by the prosecution - that should have led to it being reduced.
Judgment:
The Court accepted the arguments of the Prosecution. The Court affirmed that where a punishment is within the statutory limits it will be extremely difficult to successfully appeal it. They affirmed that the punishment was well within the scope set out in section 13 with no in-point grounds for having this successfully appealed, meaning that there was no way that it could be overturned, nor did they even have a right to at that stage. They further went through all of Crosland’s 5 points and essentially explained why they did not find any of them persuasive reasoning.
The Court in this case affirmed that where a person breaches confidentiality in releasing a draft of a Court Judgment before they are supposed to, then this is a fairly serious crime, and it is one which a strict and literal interpretation of section 13 of the Administration of Justice Act 1960 will likely be taken in the punishment of it. Next to no moralistic reasons for the person doing this will be accepted as a valid defence against prosecution or a punishment of this size – they will be seen as unacceptable excuses - there is pretty much zero tolerance for litigants doing this.If a person releases a draft of a confidential Court Judgment early, then they could be looking at a fine of around £7,500 as well as costs associated with the action of up to around £15,000. In short, early release of a Court Judgment will incur an overall punishment of between £5,000-£22,000 which will be nigh-on unappealable in almost all circumstances.
Ratio-decidendi:
Lord Briggs – laying out legal issues at 26-29 & 38 '26. The First Instance Panel decided that Mr Crosland’s reliance on the Criminal Costs PD was misplaced because it had no application to proceedings in the Supreme Court. They recognised that the Supreme Court Rules (SI 2009/1603) do not apply directly to these proceedings but held that those Rules can be used to guide the court’s use of its powers to control its own procedures and processes: para 7. Rule 46 confers on the court a discretion to make such orders as to costs as it considers just and provides that costs on the standard basis are allowed only if they are proportionate to the matters in issue and are reasonably incurred and reasonable in amount. The First Instance Panel stated that when a respondent is found to be in contempt of court there will usually be no principled basis for opposing a costs order so that the sole question is whether the costs incurred are reasonable and proportionate. In assessing that, the court may take into account the respondent’s means and the relationship between the value of any costs order and the level of any fine imposed. They noted expressly at para 12 that, as Mr Crosland’s rights under article 10 were engaged, the combination of any penal measure and any costs order must be a proportionate interference with such rights. 27. Applying those principles to the present case, the key issue was whether the amount of £22,504 was reasonable and proportionate. So far as Mr Crosland’s means were concerned, the First Instance Panel described three occasions on which Mr Crosland had been invited to provide information about his financial position and set out the limited material that he had provided to the court. Having regard to all the factors mentioned, the court held that it was fair and reasonable to order Mr Crosland to pay £15,000 towards the Attorney’s costs. 29. Mr Crosland’s grounds of appeal can be summarised as follows: (i) Ground 1: the First Instance Panel erred in its approach to considering the relevance of Mr Crosland’s beliefs and motivations namely whether his breach of the embargo was a proportionate response to the suppression of evidence about the dangers of the Heathrow expansion. The approach set out in the Contempt Judgment was inconsistent with the Supreme Court’s subsequent analysis of article 10 rights in the context of acts of civil disobedience in Director of Public Prosecutions v Ziegler [2021] UKSC 23; [2021] 3 WLR 179 (“Ziegler”). The judgment in Ziegler was handed down on 25 June 2021, after the Contempt Judgment. (ii) Ground 2: The First Instance Panel failed to mention and therefore wrongly disregarded the Scientists’ Letter as demonstrating, amongst other things, the efficacy of Mr Crosland’s tactic of breaching the embargo. (iii) Ground 3: the First Instance Panel was not an impartial tribunal, contrary to article 6 ECHR. (iv) Ground 4: the Attorney had breached her obligations under article 6 ECHR by failing to disclose the details of the breach of the embargo in relation to the Begum judgment in July 2020. (v) Ground 5: the First Instance Panel’s ruling on costs was oppressive and unjust, in particular by failing to apply the principles applicable to criminal proceedings and by failing to have regard to his modest disposable income. 38. Attention has therefore focussed on section 13 of the Administration of Justice Act 1960 (“section 13”), which is the only piece of primary legislation which appears capable of bearing upon the issue. In our view, it is the interpretation of this section that is crucial to determining the issue …’
Lady Arden Ratio-Decidendi at 129, and at 137-153 ‘129. Accordingly, in my view, Mr Eardley is correct in his submission that the Supreme Court does not have jurisdiction under section 13 of the Administration of Justice Act 1960 to hear Mr Crosland’s appeal. No-one has suggested that this Court has any other jurisdiction to hear Mr Crosland’s appeal. So, I would rule in favour of the Attorney General on her preliminary application… ‘Mr Crosland’s five grounds of appeal … I will first deal with Ground 1 and the impact of article 10 of the Convention, which is engaged by these proceedings, on the finding of contempt and penalty. Article 10 guarantees the right to freedom of expression, but it is a qualified right… he had no good excuse for his actions. He simply wanted to obtain publicity and what article 10 protects is the right to speak, not the right to gain the maximum publicity… There was no unfair failure to apply article 10… Ground 2 raises no question of an irregularity… there is no unfairness in this of the scale and degree that justifies interference with the Order. Ground 3 potentially raises an argument that there has been a serious procedural irregularity because on any basis Mr Crosland was entitled to have his case heard by an independent and impartial tribunal… In my judgment, no apparent bias can be said to arise in the circumstances of this case. Ground 4 relates to the disclosure of information held by the Attorney General. I accept that it is part of the right to a fair trial that the prosecutor should make available to the defendant information that is relevant to his defence, the information relied on here has nothing to do with his defence… Ground 4 at this stage therefore does not involve any injustice to Mr Crosland. Ground 5 raises the contention that the order for costs was disproportionate and did not follow the practice in criminal cases. I do not consider that this discloses the serious level of unfairness required for invoking the inherent jurisdiction of the court. There was no rule imposing an arithmetical relationship between the costs and the penalty and it is up to the defendant to provide satisfactory evidence of his lack of means…. I would dismiss this application’, Lady Arden at 129, and at 137-153’
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.