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On appeal from: [2021] UKSC 15

The court unanimously dismissed this appeal concerning whether the Supreme Court was wrong to decide that the appellant’s disclosure of the result of the Heathrow appeal, in breach of an embargo on the Court’s judgment, constituted a contempt of court. Furthermore, did the Court then wrongly impose a fine of £5,000 on the appellant, and wrongly order him to pay the respondent’s costs in the sum of £15,000?

The appellant disclosed the outcome of a judgment of the Supreme Court to the public while it was still in draft and subject to embargo, knowing that such disclosure was prohibited. He had formed the view that it was misleading and that breaching the embargo would generate a higher level of publicity for his complaints. The respondent made an application to the Supreme Court alleging that the appellant had acted in contempt of court. On 10 May 2021, a three–justice panel of the Supreme Court (the “First Instance Panel”) found the appellant in contempt of court and imposed a fine of £5,000 and ordered him to pay a proportion of the Attorney General’s costs.

The following issues arise. First, whether the Supreme Court has 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. Second, 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.

 

Held: The court unanimously dismissed this appeal.

Reasons for the Judgment:

Jurisdiction

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

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

Merits

The First Instance Panel made no material error in their consideration of the factual context of the appellant’s actions. They were right to find that the appellant’s conduct amounted to a criminal contempt of court. While the embargo and finding of contempt interfered with the appellant’s right to freedom of expression under Article 10 of the European Convention on Human Rights, that interference was justified within the terms of Article 10 because it was prescribed by law and was in pursuit of a legitimate aim. It was also proportionate because it did not prevent the appellant from expressing publicly his disagreement with the judgment at any point after its hand down.

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 respondent, 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 respondent was not in breach of any obligation to the appellant by failing to disclose to him that the Government may have been in breach of a court embargo in July 2020. That related to a separate case and was not relevant to the appellant.

The ruling on costs was not oppressive or unjust. The award of costs is a matter for the discretion of the First Instance Panel and they made no error of legal principle which would warrant setting aside their order. Nor did the court give reason to the appellant to believe that costs would be decided in accordance with the rules for criminal proceedings.

 

Watch the hearing:

18 October 2021  Morning session

 

For judgment, please see:  Judgment (PDF)

For press summary, please see: Press summary (HTML version)

For non-PDF version of the judgment, please see: Judgment on BAILII (HTML version)