Her Majesty's Attorney General (Respondent) v Crosland (Appellant)

Michaelmas Term

[2021] UKSC 58

On appeal from: [2021] UKSC 15

Her Majesty’s Attorney General (Respondent) v Crosland (Appellant)

before

Lord Briggs

Lady Arden
Lord Kitchin
Lord Burrows
Lady Rose

JUDGMENT GIVEN ON

20 December 2021

Heard on 18 October 2021
Appellant
Tim Crosland
(Instructed - in person)

Respondent Aidan Eardley

(Instructed by The Government Legal Department)

LORD BRIGGS, LORD KITCHIN, LORD BURROWS AND LADY ROSE:

1.          Introduction

1.          Mr Timothy Crosland appeals against the order of the Supreme Court dated 10

May 2021 in which he was ordered to pay a fine of £5,000 to HM Paymaster General for contempt of court and ordered, further, to pay the Attorney General’s costs of the committal application in the sum of £15,000. The order recited in its preamble that the court was satisfied that, by disclosing the outcome of the court’s judgment in R (on the application of Friends of the Earth) v Heathrow Airport Ltd on 15 December 2020, while the judgment was still in draft and subject to embargo, knowing that such disclosure was prohibited by the court, Mr Crosland committed contempt of court. That order gave effect to two judgments of the court, both of which Mr Crosland challenges in this appeal. We refer to the panel of Supreme Court Justices who delivered those judgments (Lords Lloyd-Jones, Hamblen and Stephens JJSC) as the “First Instance Panel”. The first judgment was delivered on 10 May 2021 setting out the First Instance Panel’s decision on liability and penalty: [2021] UKSC 15; [2021] 4 WLR 103 (“the Contempt Judgment”) and the second, delivered on 14 June 2021, determined the issues as to costs (“the Costs Judgment”).

2. The events leading up to the order under appeal are described in detail in the

Contempt Judgment so only a summary is needed here. Mr Crosland, who is an
unregistered barrister, had been involved in the proceedings giving rise to the
judgment which he disclosed on 15 December 2020 (“the Heathrow judgment”)
because the charity of which he is a director, Plan B Earth, had been the second
respondent in the case of R (Friends of the Earth Ltd) v Heathrow Airport Ltd. That case
concerned the lawfulness of the Airports National Policy Statement, published by the
Secretary of State for Transport on 5 June 2018 and designated as national policy
under the Planning Act 2008 on 26 June 2018 (“the ANPS”). The challenges to the
lawfulness of the ANPS focused largely on whether the Secretary of State had failed to
have proper regard to the Paris Agreement or to explain how the ANPS was compatible
with the United Kingdom’s emissions targets. The Paris Agreement was adopted by the
parties to the United Nations Framework Convention on Climate Change in December
2015 and ratified by the United Kingdom on 17 November 2016.

3. The hearing of the appeal to the Supreme Court in R (Friends of the Earth Ltd) v

Heathrow Airport Ltd took place on 7 and 8 October 2020. On 9 December 2020, a
copy of the court’s draft of the Heathrow judgment was circulated to the parties’
representatives in accordance with paras 6.8.3 to 6.8.5 of the court’s Practice Direction
6. In the draft judgment, the court held that the ANPS was not unlawful and allowed
the appeal against the contrary conclusion of the Court of Appeal. There is no doubt
that Mr Crosland was well aware, when he received the draft Heathrow judgment, that
he was bound not to disclose the result of the appeal or the contents of the draft to
anyone before the hand down, which he knew was fixed for the morning of 16
December 2021.

4.          When Mr Crosland read through the draft, he formed the view that there were

0C contained in the Climate Change Act 2008, and was not assessed against the more challenging target set by the Paris Agreement. Mr Crosland thought on reading the draft Heathrow judgment that it perpetuated this misleading presentation by failing to highlight the fact, as he sees it, that the Secretary of State had failed to take the Paris Agreement target into account when assessing the Heathrow expansion plan. On the contrary, Mr Crosland complains, the court stated that on a correct understanding of the ANPS and the Secretary of State’s evidence, which the court had analysed in the preceding paragraphs, the Secretary of State had taken the Paris Agreement into account in the limited way the court there described. The question was, the court said, whether the Secretary of State had acted irrationally in omitting to take the Paris Agreement further into account, or to give greater weight to it, than in fact he did: see para 125 of the Heathrow judgment.
some inaccuracies in it. In particular, he believed and still believes that the ANPS is Agreement obligation to bring carbon emissions to net zero by 2050. Mr Crosland believes further that this reassurance is also misleading because the policy was assessed in June 2018 only against an earlier, discredited goal of limiting temperature rises to 2
misleading because the policy on the third runway at Heathrow was presented by the
then Secretary of State for Transport as being compatible with the United Kingdom’s
international obligations on climate change. Such a reassurance by the Secretary of

5.          Mr Crosland entirely properly drew to the attention of the court the point that

he wanted to make in the comments that he sent to the court in response to the draft. He was told that the draft judgment would be amended to acknowledge the argument he had advanced but that there would be no substantive change to the text. On the
Heathrow judgment would be handed down. Mr Crosland did not respond and did not delete his tweet. It was re-tweeted at least 406 times by other Twitter users, including Extinction Rebellion UK, which had 55,600 followers at that time. The Heathrow judgment was handed down by the Supreme Court at 9:45 am on 16 December 2020: [2020] UKSC 52; [2020] PTSR 190.
morning of 15 December 2020, Mr Crosland sent an email to the Press Association and judgment. He issued a statement to similar effect on Plan B Earth’s Twitter account. The Supreme Court’s Communications Team sought to prevent the further dissemination of the embargo breach but with limited success. The court asked Mr Crosland to remove the statement he had shared on Twitter until 9:45 the next morning when the
possibly to other media organisations in which he disclosed the outcome of the

6. At the hearing of this appeal, as at the hearing of the committal application, Mr Crosland was candid as to the motivation for his conduct on 15 December and thereafter. He accepted that he would have been free to make whatever comments or criticisms he wished of the Heathrow judgment if he had waited till 9:45 am the following day. But, in his view, that would not have generated the same level of publicity for his complaints about the judgment as he was able to generate by breaching the embargo and presenting himself to the media as someone who was prepared to take a serious personal risk by so doing because he felt so strongly about the point he was making. His assessment was that if he waited to make his criticisms until the Heathrow judgment was available to be scrutinised by everyone, his points would be lost in the general coverage of the judgment and then the rolling 24 hour news cycle would swiftly roll on to other matters. By breaching the embargo, he made something unusual happen and that, he calculated, gave him a better chance of bringing his points to the public’s attention. He therefore decided that breaching the embargo presented his best chance “of sounding the alarm loudly”.

“20. The applicant has considered carefully whether it is in

concluded that they are necessary to uphold the due
administration of justice. In particular, the applicant has
taken into account the powerful public interest in the courts
being able to circulate draft judgments confidentially among
the parties prior to being handed down in complex and
important cases, so that typographical mistakes and other
errors can be addressed and the parties can prepare
themselves for the consequences of them becoming public.

7.          On 17 December 2020, the Registrar of the Supreme Court, wrote to the

Attorney General’s office setting out what had happened, including the detail of the email exchanges between Mr Crosland and the court between 9 and 15 December. The letter closed:

“15.	In the light of these events, Lord Reed has decided

that the court should refer the matter to the Attorney be taken against Mr Crosland for contempt of court. Lord Reed also intends to make a complaint about Mr Crosland’s conduct to the Bar Standards Board, so that it can consider whether disciplinary action should be taken.”

8.          On 10 February 2021, after some correspondence between Mr Crosland and the

Government Legal Department acting on behalf of the Attorney, the Attorney General issued an application for the committal of Mr Crosland for his alleged contempt of court. The Attorney’s application stated that by disclosing the outcome of the appeal to the public, knowing that such was prohibited by the court, Mr Crosland interfered with, or created a real risk of interference with, the administration of justice and thereby committed contempt of court. The application was supported by an affidavit from a legal advisor to the Attorney. He described the Attorney’s decision to bring proceedings as follows:

the public interest to bring these proceedings and has to issue a media advisory notice in October 2020 drawing attention to the importance of observing this confidentiality. The applicant has also had regard to the deliberate nature of the respondent’s actions, the very extensive publication which flowed from them, and the respondent’s unapologetic stance thereafter.”

9.          In mid-March 2021, Mr Crosland was in touch with the Supreme Court Registry

with regard to the hearing of the Attorney’s committal application. The hearing before arrangements could be made there to take Mr Crosland into custody if the court imposed a custodial sentence. Mr Crosland asked the Registrar whether the proceedings would be open to the public, both in terms of people being able to attend court in person and as to whether the hearing would be live streamed, as he wished it to be. He also asked about the order of speeches, proposing that the sequence should follow that of a criminal trial where the defendant has the last word. The Registrar responded on 26 March 2021 saying as regards live streaming that “criminal trials are not live streamed and the Justices have decided that this practice should be followed in this case. The criteria of a public hearing are met without live streaming”. She confirmed that the speeches at the hearing would be in the sequence Mr Crosland had outlined.

the First Instance Panel had been fixed for 10 May 2021 to take place at the Royal

“28. … we are also satisfied to the criminal standard that in

respondent did have a specific intention to interfere with the
administration of justice. Such an intention may be readily
inferred here. The respondent is a barrister who would have
been well aware of the purpose of the condition of
confidentiality attaching to draft judgments and the
significance of its breach. He knew that the prohibition on
publication was intended to serve the interests of justice.

publishing the judgment in breach of the embargo the the deliberate decision to break the embargo as an act of civil disobedience, knowing that it would be likely to be treated as a contempt of court. He wanted to demonstrate his deliberate defiance of the prohibition and to bring this to the attention of as large an audience as possible.”

“33. Thirdly, the respondent submits that he cannot have

mens rea
because he was acting for the purpose of preventing serious
harm to the public. There is, however, no defence available
to the respondent arising out of his concerns or fears as to
the consequences of the Supreme Court’s decision. There is
here no defence of public interest. There is no such thing as a
justifiable contempt of court; see Attorney General v Times

21.        The First Instance Panel then turned to Mr Crosland’s submissions. The

judgment records that Mr Crosland considered that his actions were lawful and that he sees as the erroneous approach of the Supreme Court and the consequences to which it will lead. The First Instance Panel stated at para 30:

the court should have regard to his intentions, beliefs and motivations in disclosing the
result of the appeal. His breach of the embargo was, he submitted, a reasonable and
proportionate measure to prevent harm to the public as a result of the catastrophe
which would be caused by global warming. The judgment records that the First

“In our view, these matters do not assist the respondent in relation to the issue whether there has been a contempt of court.”

22.        They first rejected Mr Crosland’s submission that the Attorney had to prove

there had been a breach of confidence because Mr Crosland had been given a
direction by the court and he was bound to obey it. Secondly, the obligation not to
disclose the result of the appeal was prescribed by law for the purposes of article 10(2)
of the European Convention on Human Rights (“ECHR”). The judgment went on:

had the requisite to be in contempt of court y-Gest. The respondent was bound to observe the confidentiality attaching to the Supreme Court decision irrespective of any such belief. In particular, it is clear on the authorities that a person may have an intention to interfere with the administration of justice even if he or she acts with the motive of securing what he or she considers to be a just outcome overall; see Connolly v Dale [1996] QB 120; Attorney General’s Reference No 1 of 2002 [2002] EWCA Crim 2392.

34. It was, in any event, not necessary for the respondent

to disclose the result of the appeal in breach of the embargo,
in order to permit or facilitate public scrutiny or criticism of
the judgment which was to be handed down the following
day. Once the judgment had been handed down, the parties,
the media and the public were all free to scrutinise the
judgment and to comment on it. On any view, the
respondent’s conduct in disclosing the outcome of the appeal
cannot reasonably be considered, as he suggests, ‘reasonable
and proportionate action to prevent mass loss of life’.”

23. The Contempt Judgment rejected Mr Crosland’s other defences, including his

reliance on article 2 ECHR and on the criminal defence of necessity or duress of
circumstances.

24.        The First Instance Panel then considered the application of article 10 ECHR.

They recognised at para 41 that the prohibition on the publication of the Heathrow judgment prior to hand down did amount to a restriction on the disclosure of information, albeit only for a limited period. The restriction was necessary, they held, in order to achieve the legitimate objective of maintaining the authority of the judiciary and judicial decisions and was a proportionate means of achieving that result.

25. Turning to penalty, the First Instance Panel, as we have said, imposed a fine of

£5,000. As Mr Crosland has not challenged that fine in this appeal we need say nothing
further about the court’s reasoning beyond this: the court said that in imposing the
penalty it was mindful of article 10 and had had regard to the extent of the
interference with article 10 rights and the likely deterrent effect on the future exercise
of those rights: para 50.

3.          The Costs Judgment

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 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.
were concerned, the First Instance Panel described three occasions on which Mr

4.          Mr Crosland’s appeal

28.        On 16 July 2021, Mr Crosland filed a notice of appeal raising four grounds of

(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.

5.          The court’s jurisdiction to hear Mr Crosland’s appeal

30. This section addresses the question, raised by the Attorney General in response

to Mr Crosland’s appeal, whether a panel of justices of the Supreme Court has
jurisdiction to hear an appeal against an order made by another panel of justices of the
Supreme Court in exercise of this court’s jurisdiction to punish for contempt of court.

31. Mr Crosland seeks to appeal against the order, on the basis that he had not

been in contempt at all, and against the order for costs. Permission to appeal was
granted by the same panel which heard the contempt application, and it was listed to
be heard before a panel of five justices, none of whom had been involved either in the
proceedings in which the embargo had been breached, or in the contempt application.
The hearing was for reasons of economy and good case management conducted on
the basis that the panel would hear argument both on jurisdiction and on the merits of
the appeal at the same time, without first deciding the question of jurisdiction. The
court did not treat the grant of permission to appeal as decisive of the question of
jurisdiction, since that question was only considered briefly, and without full argument,
by the panel which gave permission. While we acknowledge Mr Crosland’s point that
the Attorney General did not make a challenge to the court’s jurisdiction the subject of
a cross-appeal or any other formal step we consider that the point has been
sufficiently clearly raised for it to be incumbent upon us to deal with it on its merits.

32.        The ordinary work of the Supreme Court is of course to act in an appellate

capacity, as the final court of appeal from which there is no further appeal of any kind. There is no higher court by which a further appeal could be heard. In sharp contrast, its jurisdiction to punish for contempt is that of a first instance court. It is not in exercising that jurisdiction acting in an appellate capacity at all, even though the matters said to
constitute the contempt will almost always have arisen in the course of appellate
proceedings. That gives rise to two opposed questions of principle. First, how can there
be an appeal from a decision of the Supreme Court? But secondly, how can there not
be an appeal from the exercise at first instance of a contempt jurisdiction, which
extends to the imposition of an unlimited fine and, more seriously, a sentence of
imprisonment?

33.        If there were no right of appeal from the decision on contempt of the First

Instance Panel, that would represent a serious lacuna in the law. That is because it is well-accepted that there ought to be a right of appeal by the defendant in a contempt matter that may result in imprisonment or a fine. This was expressed in very strong terms by the 1959 Report entitled Contempt of Court by Justice (chaired by Lord Shawcross). The Justice Report preceded section 13 of the Administration of Justice Act 1960 and said, at p 35:

“At present there is no right of appeal against any decision or against any sentence of imprisonment …”

punishment for any criminal contempt whether it is
committed in the presence of the court or out of court. As no
human being is infallible, and as any sentence of
imprisonment involves a basic question of civil liberty, it is
not surprising to find that in every system of law of any
civilised State there is always a right of appeal against any
sentence of imprisonment. For contempt of court alone can
an Englishman be sent to prison by a court from whose
decision there is no appeal. … Even in enemy-occupied
territory in time of war, there must, under the Hague

34.        It follows that, although it may be that article 6 ECHR does not dictate that

there is a right of appeal, we consider that, if at all possible within the bounds of
ordinary statutory interpretation, we should strive to interpret the relevant statutory
words of section 13 of the Administration of Justice Act as affording a right of appeal
from a panel of the Supreme Court when it is exercising its contempt jurisdiction at
first instance.

35.        Mr Eardley submits that the Supreme Court has inherited the previously

inherent jurisdiction of the Judicial Committee of the House of Lords to revisit and if Browne-Wilkinson at p 132D-F. But he emphasised, and we agree with him, that this exceptional power to revisit or review is not an appeal. It is limited to serious procedural error (in that case apparent bias) and admits no challenge to findings of law or fact, or the egregious exercise of discretion. It would have accommodated only one or possibly two of Mr Crosland’s grounds of appeal.
necessary vary or rescind decisions of the court which are alleged to have been vitiated
by unfair procedural error, as exemplified by R v Bow Street Metropolitan Stipendiary

36.        In her judgment Lady Arden considers that the inherent jurisdiction extends to

putting right any kind of unfairness, but we respectfully read Lord Browne-Wilkinson’s alleged should be “particularly serious” would offer any protection against a flood of applications by unsuccessful litigants in the Supreme Court, aggrieved by their perception that the outcome had, for an unlimited range of reasons, been seriously unfair.
words (which she quotes) as being expressly limited to cases of unfair procedure.

37.        In our view any jurisdiction to hear an appeal from a decision of the Supreme

Court in exercise of its undoubted jurisdiction to punish for contempt must be found, if at all, in primary legislation. Unlike its predecessor the Supreme Court is itself a creature of statute. Now is not the occasion for an examination of the extent of its inherent jurisdiction. It is sufficient to say that nothing has been found to suggest that the House of Lords had an inherent jurisdiction to hear an appeal of this kind which the Supreme Court could have inherited, and wider than the Pinochet jurisdiction to deal with procedural error, as described by Lord Browne-Wilkinson.

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. It provides, so far as is relevant, as follows:

“13.	Appeal in cases of contempt of court

(1) Subject to the provisions of this section, an appeal shall lie under this section from any order or decision of a court in the exercise of jurisdiction to punish for contempt of

court (including criminal contempt); and in relation to any
such order or decision the provisions of this section shall
have effect in substitution for any other enactment relating
to appeals in civil or criminal proceedings.

(2) An appeal under this section shall lie in any case at the

instance of the defendant and, in the case of an application
for committal or attachment, at the instance of the applicant;
and the appeal shall lie -

(a)	from an order or decision of any inferior court

not referred to in the next following paragraph, to the
High Court;

(b) from an order or decision of the county court or

any other inferior court from which appeals generally
lie to the Court of Appeal, and from an order or
decision (other than a decision on an appeal under this
section) of a single judge of the High Court, or of any
court having the powers of the High Court or of a
judge of that court, to the Court of Appeal;

(bb)	from an order or decision of the Crown Court to

the Court of Appeal;

(c)	from a decision of a single judge of the High

Court on an appeal under this section, from an order
or decision of a Divisional Court or the Court of Appeal
(including a decision of either of those courts on an
appeal under this section), and from an order or
decision (except one made in Scotland or Northern
Ireland) of the Court Martial Appeal Court to the
Supreme Court.

(2A) Paragraphs (a) to (c) of subsection (2) of this section

do not apply in relation to appeals under this section from an
order or decision of the family court, but (subject to any
provision made under section 56 of the Access of Justice Act
1999 or by or under any other enactment) such an appeal
shall lie to the Court of Appeal.

(3)	The court to which an appeal is brought under this

section may reverse or vary the order or decision of the court of an appellant under this section.
below, and make such other order as may be just; and
without prejudice to the inherent powers of any court
referred to in subsection (2) of this section, provision may be
made by rules of court rules made under section seven of the

(4) Subsections (2) to (4) of section one and section two

under this section as they apply to an appeal to the Supreme

of this Act shall apply to an appeal to the Supreme Court said subsection (2) as restricts the grant of leave to appeal shall apply only where the decision of the court below is a decision on appeal to that court under this section.

(5) In this section ‘court’ includes any tribunal or person having power to punish for contempt; and references in this section to an order or decision of a court in the exercise of

jurisdiction to punish for contempt of court include

references -

(a)	to an order or decision of the High Court, the

family court, the Crown Court or the county court
under any enactment enabling that court to deal with
an offence as if it were contempt of court;

(b)	to an order or decision of the county court, or

of any court having the powers of the county court,
under section 14, 92 or 118 of the County Courts Act

1984;

(c)	to an order or decision of a magistrates’ court

under subsection (3) of section 63 of the Magistrates’

Courts Act 1980;

(d)	to an order or decision (except one made in

Scotland or Northern Ireland) of the Court Martial, the under section 309 of the Armed Forces Act 2006,

but do not include references to orders under section five of except those referred to in paragraphs (b) and (c) of this subsection and except sections 38 and 142 of the last mentioned Act so far as those sections confer jurisdiction in respect of contempt of court.

the Debtors Act 1869, or under any provision of the

(6) This section does not apply to a conviction or sentence in respect of which an appeal lies under Part I of the Criminal Appeal Act 1968, or to a decision of the criminal division of

the Court of Appeal under that Part of that Act.”

39.        Notwithstanding its origin more than 60 years ago, it is evident from the

numerous references to more recently created courts, including the Supreme Court,
that this provision for appeal from orders exercising the contempt jurisdiction has
been kept constantly up to date by Parliament, so that it may reliably be construed in a
modern context, free from the difficulties which frequently attend the need to
interpret legislation on an “always speaking” basis.

40. That context includes the fact that the Supreme Court, like the House of Lords, has its own original jurisdiction to punish for contempt. In In re Lonrho Plc [1990] 2 AC 154 it was held that the House of Lords was the normal and natural, and indeed only, forum for the hearing of contempt relating to proceedings before the House. Rule

9(2)(a) of the Supreme Court Rules 2009 (SI 2009/1603) makes express provision for
the exercise of the same jurisdiction by a panel of justices of the Supreme Court, at an
oral hearing.

41. Section 13(1), read on its own, provides in apparently clear express terms for

there to be an appeal from any order or decision of a court in the exercise of its
contempt jurisdiction. “Court” in section 13(1) includes any tribunal or person having
power to punish for contempt, subject to minor and irrelevant exceptions: see section
13(5). The Supreme Court clearly falls within that non-exclusive definition of “court”.
So at first sight “court” in section 13(1) means any court, including the Supreme Court.

42.        But section 13(1) begins with the phrase “subject to the provisions of this

section”. Thus it is possible that the provisions of subsections (2) to (6) may cut down the generality of the express right of appeal conferred by subsection (1). The Attorney General submits that, taken as a whole, section 13 does contain a limitation of the

generality of that right of appeal, so as to exclude any appeal from an order or decision assumption implicit in section 13(3) that an appeal will always be from the “court below” to a higher court. He points to the express inclusion of the Supreme Court as a court to which an appeal shall lie: see subsection (2)(c), but not from which an appeal shall lie. All in all, he submits that section 13 contains a complete statutory code for appeals from the exercise of the contempt jurisdiction, which therefore excludes appeals from the Supreme Court by its silence. He adds that the very concept of an appeal from the Supreme Court to a higher court is a conceptual impossibility, and that article 6 ECHR does not require that there always be an appeal from every decision of a court.

of the Supreme Court in the exercise of its original contempt jurisdiction. Mr Eardley
points first to the complete absence of any prescribed route of appeal from the

43.        These are cogent submissions, but we have not been persuaded by them. The

starting point, having regard to what we said in para 34 above, is the apparent appeal from orders or decisions of the Supreme Court made in the exercise of its undoubted original contempt jurisdiction. In short, the signpost to a possible exclusion implicit in the phrase “subject to the provisions of this section” simply leads nowhere, because no relevant exclusion is expressly provided for.
generality of the express right of appeal conferred by section 13(1) and the undoubted
inclusion of the Supreme Court within the phrase “order or decision of a court”
because of the very broad definition of “court” in subsection (5). Bearing in mind the
potentially draconian consequences of such an order or decision, we would expect to
see an express exclusion of orders and decisions of the Supreme Court, if an appeal
against them were to be excluded, of the type to be found for example at the end of
subsection (5) and in subsection (6) in relation to orders made under certain specified
statutes. In that context silence, in the absence of any exclusionary reference to the

44. On close examination most of the provisions of the subsections which follow

courts or types of order or decision which give rise to a right of appeal at all. They
include provisions about who may appeal, in subsection (2), and there couched in
broad inclusionary terms which always include the defendant. They are about
procedural routes of appeal, again in subsection (2), about the orders which the
appellate court may make, in subsection (3), and about the limited circumstances in
which leave may be required, in subsection (4). Subsections (5) and (6) do exclude
certain types of order from giving rise to a right of appeal under section 13, but do so
in express and clearly demarcated terms. The Attorney General did not submit that
even those subsections meant that the orders with which they were concerned were
not subject to any kind of review on the merits, under other statutory provisions. The
point of this analysis is that the phrase “subject to the provisions of this section” in
section 13(1) is not to be construed as meaning that the rest of section 13 is all about
limiting the right of appeal, so that some implied limitation might be derived from
silence about the existence of a right of appeal from orders or decisions of the

section 13(1), to which it is subject, are not all or even mainly about cutting down the relevant cutting back of the express conferral in section 13(1) of a right of appeal. The essential words are: “an appeal shall lie under this section from any order or decision of a court in the exercise of jurisdiction to punish for contempt of court (including criminal contempt) …”.

“If any procedural question arises which is not dealt with by
these Rules, the Court or the Registrar may adopt any
procedure that is consistent with the overriding objective,
the Act and these Rules.”

49. In her judgment Lady Arden gives five reasons why she considers that there is

no such right of appeal. Taking them briefly in turn, her first is that any such right
would need to be conferred by statute expressly. We agree but, in our view, for the
reasons already given, Section 13 does just that. It follows that we do not consider it
necessary to address the question whether the ordinary meaning of section 13(1)
needs to be more generously interpreted in the light of article 6 ECHR.

50.        Her second reason is that, if she is right that section 13(1) confers no express

right of appeal, it is a substantive right which cannot be conferred by procedure rules. Again, we agree. But our conclusion that the substantive right is conferred by section 13(1) leaves it open to procedure rules to provide or, as here, pave the way, for a
procedural route by which such a right may effectively be exercised.

51. The third reason advanced by Lady Arden is that no similar right exists where

appropriate in this case to decide whether that is so. We have heard no argument on
the question. This is a contempt which occurred in England, in the face of the Supreme

the contempt arises in a Scottish appeal. We do not consider that it would be relation to a contempt committed in connection with a Scottish appeal, that would not in our view require section 13(1) to be read otherwise than in accordance with its clear express terms as we have construed them.

52.        Fourthly Lady Arden describes the Supreme Court as a single court. Fifthly she

says that an appeal, by definition, means an appeal to a higher authority. We have already acknowledged the force of these points in our treatment of the submission about conceptual impossibility, and explained why, in our view, they are insufficient to
overcome the construction of the express terms of section 13(1) to which effect must
be given, even if necessarily in an unusual way.

53.        In the present case Mr Crosland obtained permission to appeal (if required)

from the panel of three justices which made the orders for a fine and costs, and the appeal was then heard by a completely different panel of five justices. We consider that, for the reasons given above, we had jurisdiction to entertain that appeal.

6.          Grounds 1 and 2: failure properly to consider the factual context of Mr

Crosland’s actions, and failure to mention the Scientists’ Letter

54.        These grounds of appeal are concerned with Mr Crosland’s contention that the

First Instance Panel failed properly to address his belief that evidence concerning the dangers associated with the proposals for the expansion of Heathrow Airport had been concealed and suppressed; that the draft Heathrow judgment contained material errors and omissions; that he felt duty bound to draw the attention of the public to the true position; and that his breach of the embargo amounted to a proportionate response to that concealment and suppression, and achieved his objective of getting the accurate information into the public domain.

55.        There can be no doubt that Mr Crosland believes passionately in the cause he

espouses. Indeed, at para 29 of their judgment, the First Instance Panel recorded his submission that he was justified in breaching the embargo because his action was a reasonable and proportionate measure to prevent harm to the public as a result of the
catastrophe which he believes would be caused by global warming. Further, as he
explained in his personal statement, in a passage recited by the First Instance Panel at
para 28, he took the deliberate decision to break the embargo as an act of civil
disobedience, knowing that it would be likely to be treated as a contempt of court. He
wanted to demonstrate his defiance of the prohibition and to bring the matter to the
attention of as large an audience as possible.

56.        In developing his arguments under these grounds of appeal, Mr Crosland

submits, first, that what he did was an exercise of his right to freedom of expression
under article 10 ECHR, and that the imposition of the embargo, the pursuit of the
application for his committal for contempt for breaching the embargo, the finding that
he was in contempt, the imposition of a penalty and the award of costs against him
were all restrictions on his article 10 rights and amounted to an interference with
those rights, and that each such restriction and interference had to be prescribed by
law and pursue one of the aims listed in article 10(2) and be necessary in a democratic
society for the achievement of that aim, that is to say it had to be proportionate.

57.        Mr Crosland submits, secondly, that it was in the assessment of proportionality

Heathrow appeal had got it dangerously wrong; and that his action in breaching the embargo was necessary to set the record straight. Mr Crosland seeks to derive support for these submissions from the recent decision of the Supreme Court in Ziegler. But before addressing the implications of the decision in Ziegler and its relevance to the submissions now advanced, we think it is important to consider further how the First Instance Panel in fact approached the issues before them, and the basis for the conclusions they reached.
that the First Instance Panel fell into error because they failed to carry out a fact- constituted a criminal contempt and contends that this was reached without any proper consideration of his belief that evidence was being concealed from the public concerning the relationship between the proposed expansion of Heathrow Airport and the Paris Agreement temperature goal; that the court dealing with the
specific enquiry into and evaluation of the circumstances of every interference and all
of the restrictions as required by article 10(2), and failed properly to recognise that the
relevant circumstances and considerations might not be the same for each of them.

58.        As we have seen, the First instance Panel began by considering whether the

essential elements of a finding of criminal contempt of court had been proved to the criminal standard, and here they made findings that Mr Crosland was responsible for the disclosure of the draft Heathrow judgment in breach of the embargo; that when he

made the disclosure, he was aware of the embargo; that his conduct was or created a justice and the ability of the court to control its own proceedings. Yet, as the Panel found, Mr Crosland chose to issue statements in terms which defied the authority of the court and were likely to encourage others to disobey the prohibition on publication of the draft judgment; and they had that effect, just as Mr Crosland intended. The outcome of the appeal and Mr Crosland’s comments upon it were published widely in the hours before the judgment was handed down.

risk of an interference with the administration of justice that was sufficiently serious to
amount to a criminal contempt; and that he intended to interfere with the
administration of justice. We would emphasise at this point that the requirement of
strict confidentiality was imposed by the court, and the reasons for its imposition in
relation to any draft judgment provided to the parties in advance of the hand down are
and were well known and understood and were summarised by the First Instance

59. All of these findings of the First Instance Panel had a firm basis in the evidence,

and no effective challenge to them has been or could be made. That was only a part
(albeit an important part) of the analysis carried out by the Panel, however. They
turned next to Mr Crosland’s case on liability, as it had been advanced before them,
and recorded, at para 29, the principal submissions he had made, namely that he was
aware that he was breaking the court’s confidentiality but that at all times he
considered his actions to be lawful; that the court should have regard to his intentions,
beliefs and motivations in disclosing the draft judgment; and that he was justified in
breaking the embargo because his action was a reasonable and proportionate measure
to prevent the harm to the public that he believes would result from global warming.

60.        The First Instance Panel rejected this case for all of the reasons they gave at

paras 30-38 and to which we have referred at paras 22 and 23 above. The elements of
that reasoning which are most pertinent for present purposes may be summarised in
this way. Mr Crosland had been given a direction by the court not to disclose the
Heathrow judgment until hand down, and he was bound to respect that embargo until
it expired or was varied or discharged by the court upon an application made to the
court for that purpose. The embargo was prescribed by law and pursued a legitimate
aim, namely, the proper administration of justice. Further, Mr Crosland’s belief that
the judgment contained material errors and his concerns about its impact on global
warming and the environment provided no justification for his actions because there
was here no defence of public interest and, in any event, it was not necessary to
breach the embargo to permit or facilitate public scrutiny of the judgment: it was due
to be handed down the following day, and Mr Crosland would then be free to publicise
all of his criticisms of its reasoning and his concerns about its consequences. For like
reasons, there was no rational connection between any breach of the embargo and the
harm Mr Crosland maintained he wished to prevent.

61. The attention of the First Instance Panel turned next to a consideration of the

application of article 10, essentially, so Mr Eardley submits, as a cross-check. Here, at
para 39, the Panel reminded themselves that section 12 of the Human Rights Act 1998
requires the court to have particular regard to the importance of the article 10 right to
freedom of expression when considering whether to grant any relief which, if granted,
might affect the exercise of the right. The Panel made clear they had taken full account
of section 12 and had also given consideration to whether a finding of criminal
contempt in this case was compatible with article 10.

62.        In this connection the First Instance Panel recognised, at para 40, that any

permissible interference with freedom of expression had to be prescribed by law,
pursue one of the objectives in article 10(2) and be necessary in a democratic society
for the achievement of that aim, and that this last limb required an assessment of the
proportionality of the interference to the aim pursued.

63.        The First Instance Panel also accepted, at para 41, that the embargo on

publication of the judgment in the Heathrow appeal prior to hand down amounted to a
restriction on the disclosure of information, albeit only until hand down, and so
engaged article 10. The Panel therefore addressed the need for and proportionality of
that embargo. They observed that it was for a limited period only, from 9 December
2020 until hand down on 16 December 2020, and continued:

“Furthermore, it [the embargo] was for the specific purposes of enabling the parties to make suggestions for the correction of errors, prepare submissions on consequential matters and to prepare themselves for the publication of the judgment. It is important that the published text of a judgment of the

court should be accurate, complete and in its final form. This
restriction was clearly necessary in order to achieve the
legitimate objective of maintaining the authority of the
judiciary and judicial decisions and was a proportionate
means of achieving that result.”

64.        The First Instance Panel were satisfied that the conduct of Mr Crosland in

breaking the embargo constituted a criminal contempt of court and, at para 42, they
so held.

65. That brings us to the decision of the Supreme Court in Ziegler. The appeal gave

rise to two issues: the first concerned the test to be applied by an appellate court, on
an appeal by way of case stated under section 111 of the Magistrates Courts Act 1980,
to an assessment of the decision of a trial court in respect of a statutory defence of
“lawful excuse” where Convention rights are engaged in a criminal matter; and the
second was whether deliberate and obstructive conduct by protesters was capable of
constituting a “lawful excuse” for the purposes of section 137 of the Highways Act
1980 (“the 1980 Act”), where the impact of the obstruction on other users of the
highway prevented, or was at least capable of preventing, those other users from
passing along that highway. It was common ground that what the protesters did was in
the exercise of one of the rights in articles 10 and 11; that the prosecution and
conviction of the defendants amounted to an interference with these rights; that the
interference was prescribed by law; and that the interference was in pursuit of a
legitimate aim which was the prevention of disorder and the protection of the rights of
others to use the highway. That left the final question: whether the interference was
proportionate. Here the court emphasised that deliberate obstructive conduct which
has a more than de minimis impact on others still requires careful evaluation in
determining proportionality; and that there must be a separate assessment of
proportionality in respect of each restriction to determine whether the interference is
necessary in a democratic society so that a fair balance is struck between the
legitimate aims of the prevention of disorder and the protection of the rights and
freedoms of others and the requirements of freedom of expression and freedom of
assembly. This calls for a fact-specific enquiry and the evaluation of the circumstances
in the individual case, as Lord Hamblen and Lord Stephens emphasised (see, for
example, at paras 58, 59, 64 and 70).

66. We accept that the decision in Ziegler highlights an issue at the heart of at least

criminal contempt, the court ignored his motivations, intentions and beliefs, and
whether, as he maintains, these were relevant to the proportionality assessment the
court was required to carry out. Mr Crosland submits that the First Instance Panel
considered the proportionality of the embargo to the legitimate objective of
maintaining the authority of the judiciary and judicial decisions but left out of account
his conscientious motives in seeking to draw the public’s attention to what he believed
to be the facts about the environmental impact of the proposed third runway at

one of Mr Crosland’s arguments on this appeal: whether, in finding that he was in draft Heathrow judgment in the Heathrow appeal.

“In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a fair
and public hearing within a reasonable time by an
independent and impartial tribunal established by law. …”

It was made clear by the House of Lords in Lawal v Northern Spirit Ltd [2003] UKHL 35; [2003] ICR 856, at para 14, that, in relation to apparent bias, the common law test laid down by the House of Lords in Porter v McGill [2001] UKHL 67; [2002] 2 AC 357, is also the appropriate test for determining whether a tribunal is independent and impartial

under article 6 ECHR. That test, as set out by Lord Hope in Porter v McGill at para 103,

is as follows:

“The question is whether the fair-minded and informed
observer, having considered the facts, would conclude that
there was a real possibility that the tribunal was biased.”

79. Mr Crosland submits that for two main reasons the First Instance Panel was not

independent and impartial and that the fair-minded and informed observer would
conclude that there was a real possibility that the Panel was biased. The first was
because it was the Supreme Court’s own decision in the Heathrow appeal that
contained the alleged misrepresentation of fact that prompted the alleged contempt;
and, secondly, it was the President of the Supreme Court who had instigated the
contempt proceedings. He further submits that there were a number of other
measures, such as announcing fundamental changes to the procedure to be followed
in the hearing just half a working day ahead of the hearing and the delivery of a pre-
prepared judgment only six minutes after the conclusion of his submissions, that
reinforced the perception of bias.

80.        In further written submissions prompted by this court having brought to Mr

Crosland’s attention the decision of the European Court of Human Rights in Kyprianou v Cyprus (2007) 44 EHRR 27, he argued that that case supported his submissions on bias. In that case, it was held that there had been an infringement of article 6 in a situation where the same panel of judges had themselves dealt almost immediately with a contempt in the face of the court by the defence advocate in a murder trial. The contempt had been found proved and the advocate had been punished with a sentence of imprisonment of five days.

81. We reject all those submissions. Certainly, the need to ensure that the tribunal is impartial and does not give the appearance of being biased means that it will rarely be acceptable, where there has been an alleged contempt in the face of the court, for the same judge or judges in that court to go on, at least without a significant

adjournment, to hear the allegation of contempt and, if established, to decide on the
appropriate punishment. That is well illustrated by Kyprianou v Cyprus.

82. However, on the facts of this case, there is no real possibility of the fair-minded

and reasonable observer, having considered the facts, concluding that the First bring proceedings for contempt was taken by the Attorney General, to whom the matter had been referred by the President of the Supreme Court, and was therefore not taken by the Supreme Court itself. As Mr Eardley put it, the court was not acting as prosecutor in its own cause. Secondly, the First Instance Panel hearing the committal application did not include any of the judges who sat on the Heathrow appeal. We also reject, as not reinforcing any perception of bias, the additional factors mentioned by Mr Crosland. So, for example, it is commonplace in the courts of England and Wales for judgments to be given ex tempore and this does not indicate that the court has made up its mind prior to the hearing.

83. The facts of Kyprianou v Cyprus were also very different from the facts of this case. Here the judges dealing with the alleged contempt were not the same; and, far from proceeding almost immediately with the contempt matter, this was referred to the Attorney General and the contempt hearing took place several months after the alleged contempt.

84.        We add that, as is well-known, Supreme Court judges take the judicial oath

requiring them “to do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will”. Moreover, they quite commonly disagree with each other: a quick perusal of Supreme Court judgments reveals that there are dissenting judgments and judgments that concur with a main judgment but
for different reasons. The fair-minded and reasonable observer knows that one panel
of Supreme Court judges is bound to, and can be expected to, exercise an independent
and impartial view in relation to contempt matters affecting a differently constituted
panel.

85. Mr Crosland submits that, as article 6(1) ECHR made it impermissible for a panel

of the Supreme Court to hear the contempt matter, the correct course would have
been for his breach of the embargo to have been referred to the Bar Standards Board
and/or the Charity Commission. But it is far from clear that the sanctions available to
those bodies would have come anywhere near providing an adequate punishment for
what was a deliberate contempt of court. In any event, it is for a court, not a
regulatory body, to punish a contempt of court; and the sanctions available would not
be directed at the contempt itself but rather at different matters such as bringing the
barrister’s profession into disrepute. It is also purely fortuitous that there are bodies
with some sort of sanction over Mr Crosland’s behaviour. In other cases of contempt
by breach of an embargo (for example, by a litigant in person working for a
commercial, rather than a charitable, organisation) there would be no such alternative.

86.        We add three points for completeness in relation to whether there were any

In re Lonrho Plc that an alleged contempt of the Supreme Court must be referred to a panel of Supreme Court Justices who must hold an oral hearing. Thirdly, as confirmed by the Court of Appeal in Attorney General v Dallas [2012] EWHC 156 (Admin); [2012] 1 WLR 991, trials on indictment for contempt are obsolete and cannot be sought by either the Attorney General or the alleged contemnor.

substantial sentence of imprisonment. The defendants in question appealed to the

“In so far as the applicants complain of having been deprived of the right of appeal to a higher court, the Commission notes that in accordance with its established precedents

(Application Nos 277/57 and 690/60, Yearbook 1, pp 222 and Case relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium (merits) judgment of 23 July 1968, p 33). However, in the latter judgment, the Court also held that in ‘A state which does set up such courts … would violate that article, read in conjunction with article 14, were it to debar certain persons from these remedies without a legitimate reason while making them available to others in respect of the same type of actions’.”

243), confirmed by the European Court of Human Rights,
article 6(1) of the Convention does not compel States to
institute a system of appeal courts (Eur. Court of Human

107. The only circumstances in which there could be a violation of article 6 in relation

to a right of appeal is if the Supreme Court itself had a right to refer a matter to
another court on appeal and failed to consider that option or arbitrarily refused to
exercise it: see generally Coëeme v Belgium (Application No 32492/96 and others) at
paras 111-117).

108. Another reason why historically in this country there was no lacuna in the law in relation to orders for imprisonment for contempt of court was that such orders by one court could be reviewed by another court having jurisdiction to issue the powerful writ of habeas corpus (see Habeas Corpus - from England to Empire, PD Halliday, Harvard,

2010, pp 119-120). In the absence of the modern system of appeals, courts regularly imprisoned contends that he had purged his contempt. This diminishes to some extent the importance of the absence of an appeal from a sentence of imprisonment for contempt, though it does not fully remove it. I have incidentally been unable to find any authority for an analogous situation, namely an authority giving a right of appeal from an order refusing to discharge a prisoner pursuant to the writ of habeas corpus but that would be consistent with Sillem, above.

intervened to “upend” the orders of other courts which they considered were not
justified. There was no mechanism for setting aside the orders first. There is no reason
to think that the jurisdiction in habeas corpus does not apply in some situations today.

109. In my judgment the rule that a right of appeal could not be conferred except by

express statutory provision, is very well established and has formed part of the
common law for nearly 100 years before the passing of the Act. That means that a
right of appeal being created would either have to be expressly mentioned or it would
have to be identified by some appropriate description or by necessary implication. The
common law rule formed the background against which section 13 was drafted. In the
present case, the right of appeal relied on does not appear from section 13(1)
expressly or by some defining set of words or by necessary implication. Section 13(1)
can be given meaning without reference to contempt proceedings in the Supreme
Court.

“And therefore the only question is, Was the appeal to His of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure.”

113.     On the basis that a right of appeal is substantive, then, if I am right that section

13 does not enable one panel of Justices of this Court to hear an “appeal” from the conferred by section 45 of the Constitutional Reform Act 2005 to make rules of practice and procedure:
decision of another panel of Justices, the gap in the jurisdiction of this court cannot be

filled by any part of rule 9 of the Supreme Court Rules. These Rules were made by Lord

“45.	Making of rules

The President of the Supreme Court may make rules (to be known as ‘Supreme Court Rules’) governing the practice and procedure to be followed in the Court.”

114.     Reliance is placed by the majority on rule 9(2) and (7). Rule 9 itself is headed

“Procedural decisions”, which indicates that it does not extend to substantive
questions. Sub-rule (2) deals with which Justices shall hear an application alleging
contempt of the Supreme Court, which is indeed procedural. Sub-rule (7) provides for
the resolution of procedural questions for which no provision is made in the Rules. This
does not advance the argument. It can only avail if there is a right of appeal under
section 13(1). I have addressed this under the first reason and will return to it under
the fifth reason.

Third reason: no equivalent right applies in Scottish appeals

115. Thirdly, there is no equivalent to section 13 of the Act which applies in Scotland: see Contempt, Arlidge, Eady & Smith, 5th ed (2017). This is an important point. There is no good reason Parliament should confer a right of appeal from a decision of this Court on contempt where the matter arose from an appeal from England and Wales but not

from Scotland. That anomaly supports that argument that section 13 of the Act did not
confer a right of appeal from decisions by this Court with respect to contempt of it.

116.     I have not forgotten Northern Ireland but the statutory provision applying in

that jurisdiction is similar to section 13 of the Act. The point is sufficiently made even if
it applies only to Scottish cases. There is no logical difference for any distinction
between Scottish cases on the one hand and cases from England, Wales or Northern

Ireland.

Fourth reason: The Supreme Court is a single court

117. Fourthly, the Supreme Court is a single court, not a court composed of divisions

or having unlimited jurisdiction. The Justices are of equal standing, and it is not open to
some only of the Justices to review the acts of others by way of an appeal. If the
position were otherwise, a case might arise in which five Justices make the order which
leads to the appeal, and the appeal is heard by a different three Justices. If the two
panels of Justices differed in their conclusion on the law or the outcome, there might
be great uncertainty as to what the law was. It is no answer to this point that the
appeal would have to be heard by a larger panel than the panel who made the ruling
on contempt (and there does not appear to be a source for any such requirement).

118. Indeed, it may not be possible to assemble such a panel. This court has far

fewer Justices than some supreme courts. A right of appeal could not be dependent on
the number of available Justices.

119.     In my judgment, it does not assist to say that an earlier decision of the court

may be distinguished or overruled by another constitution of the Supreme Court dependent on the availability of acting Justices or members of the court’s supplementary panel.
because that statement is made in the context of an appeal in a subsequent case, not
in the same case, and this appeal is sought to be made in the same case. If there is a
further right of appeal where the panel of this court sitting on appeal re-exercises the
discretion of the first panel to punish for contempt of court (see the last three
sentences of para 15 above), there may also for that reason be a lack of available

120. I do not consider that, if this is suggested, there are any grounds for concluding

that Parliament must have made a mistake in section 13 of the Act. The absence of a
right of appeal in the present case is not casus omissus because it would have been
totally unnecessary for Parliament to have created any right of appeal from orders for
contempt made by the Appellate Committee of the House of Lords. Even if it were not
a final court from which no appeal can lie, it was a committee of the House of Lords
and therefore it had power to regulate its own procedure.

Fifth reason: an appeal naturally means an appeal to higher authority

“In principle the courts can adopt a dynamic construction of legislation particularly where Parliament uses open-textured expressions which are intended to apply in circumstances

which may change with time (eg ‘unreasonable conduct’), or where such a construction is required by some other statute such as the Human Rights Act 1998.”

127. However, the word “appeal” is not an open-textured word in this sense. Court

procedure may be changed from time to time, but the core feature of an appeal is that
it is a process of review involving a higher court.

128. Therefore, even the doctrine of always speaking cannot enable the court to interpret the expression “an appeal” as including as a horizontal right.

Conclusion on jurisdiction

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.

B.	The inherent jurisdiction of the Court relevant to this case

130. The larger issue posed by Mr Crosland is essentially the well-known issue of quis

custodiet ipsos custodes (who guards the guards themselves?). That question is
answered by the existence of the court’s inherent jurisdiction. It may also in a case
such as this, in the unlikely event that the inherent jurisdiction does not resolve the
matter, in appropriate circumstances the defendant may be able to apply to the
Strasbourg court.

131.     The inherent jurisdiction of the Supreme Court enables it, in certain

circumstances, to revisit and if necessary vary or rescind decisions of the court. This court inherited the inherent jurisdiction of the Appellate Committee of the House of Lords. That Committee had considered the scope of its inherent jurisdiction in R v Bow

Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 2) [2000] 1 AC 119. Lord Browne-Wilkinson dealt with the matter in the most detail. He held that the inherent jurisdiction was unlimited and enabled the Committee to avoid any injustice caused by an order of the Committee as a result of an unfair procedure arising through no fault of a party, but he ruled out any power to review the merits of a previous decision of the Committee:

“In principle it must be that your Lordships, as the ultimate court of appeal, have power to correct any injustice caused by an earlier order of this House. There is no relevant

statutory limitation on the jurisdiction of the House in this
regard and therefore its inherent jurisdiction remains
unfettered. In Broome v Cassell & Co Ltd (No 2) [1972] AC
1136 your Lordships varied an order for costs already made
by the House in circumstances where the parties had not had
a fair opportunity to address argument on the point.

However, it should be made clear that the House will not reopen any appeal save in circumstances where, through no fault of a party, he or she has been subjected to an unfair procedure. Where an order has been made by the House in a particular case there can be no question of that decision being varied or rescinded by a later order made in the same case just because it is thought that the first order is wrong.” (p 132D-F)

132. Although in the second paragraph Lord Browne-Wilkinson speaks of a party

being subjected to an “unfair procedure”, I do not consider that he meant that the
inherent jurisdiction was only available where there was a purely procedural
irregularity, that is, a departure from the practice on an appeal. Although that would
normally be the case, it is possible that the inherent jurisdiction may be invoked for
example where a party has wrongly withheld some critical evidence from the other
party. The key question is whether there has been an injustice of a particularly serious
nature which as a result of some step by the court or a party undermines the order of
its essential quality of being a judicial decision.

133. It is customary to say that the jurisdiction on which the Appellate Committee

relied in Pinochet (No 2) is a narrow jurisdiction but there are two reasons why I do not
consider this to be so. Firstly, as I have explained the jurisdiction is to avoid unfairness
and so is not simply limited to purely procedural irregularity (although in Pinochet the
irregularity was procedural). It is possible therefore that in some circumstances the
jurisdiction may extend to an irregularity consisting of a serious violation of the
defendant’s human rights. For the purposes of this judgment, I will proceed, without
deciding it, on the basis that in certain circumstances the inherent jurisdiction
encompasses power to intervene if there is a serious violation of human rights and
that that jurisdiction was engaged in this case.

“Article 10

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall

not prevent States from requiring the licensing of
broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it

duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society,
in the interests of national security, territorial integrity or
public safety, for the prevention of disorder or crime, for the
protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure
of information received in confidence, or for maintaining the
authority and impartiality of the judiciary.”

139.     Mr Crosland is particularly concerned about the climate change emergency and

global warming. Under the United Nations Framework for combating Climate Change,
agreed at Paris in 2015, states set an objective of ensuring that global temperature
increases remain well below 2°C and of driving efforts to limit the temperature
increase to 1.5°C. Mr Crosland contends that the judgment of this Court which he
released in breach of the embargo misled the public because it did not disclose that
the Secretary of State had acted on the basis of the 2°C target, not the reduced target
of 1.5°C. I do not consider that there is any substance in his allegation about the
judgment. On a proper analysis of the judgment, that matter was not relevant to the
court’s reasoning.

140.     Mr Crosland contends that his actions were justified because the leading

scientists who wrote to the Prime Minister in consequence of the judgment would not
have done so without the publicity arising from his breach of the embargo. He also
contends that the media would not have given the matter the same attention as it did
flow his breach of the embargo. These points are only assertions. There is no evidence
that this was so, and it is inherently unlikely that the publicity could only be obtained if
he breached the embargo.

141. In my judgment, Mr Crosland could equally well have made his points after the embargo was lifted and that would not have involved any conflict with the court’s directions. Therefore, 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.

142. Moreover, the breach is aggravated by the fact that Mr Crosland has been

the seriousness of not complying with the court’s directions. A barrister plays an
essential role in the administration of justice. He owes duties to the court. As Sir

called to the Bar of England and Wales and therefore would be particularly aware of which covers all he says and does in the course of a [hearing], lays on him a heavy obligation never to abuse the situation.” He is trusted to observe the directions of the court. The breach was found to be deliberate and there has been no apology.

143.     The directions which Mr Crosland breached are imposed to maintain the

authority of the court’s rulings. As Lord Lloyd-Jones explained in the judgment which
led to the Order, a major reason for the embargo in this sort of case is to enable
judgment to be finally corrected before being released to the public. Without the
embargo a great injustice could be done by publicity being given to an unintended
inaccuracy. In Mr Crosland’s favour it appears to be the position in this case that at
least at the point in time of his publication of this court’s judgment there was no error
in it requiring correction.

144. There is no question as to legitimate aim of the contempt jurisdiction or as to

the fact that it was prescribed by law. Those requirements are satisfied. So, in cases
such as this, the question must necessarily arise as to the proportionality of the
restriction. As regards proportionality, this court has recently held that:

“Determination of the proportionality of an interference with
ECHR rights is a fact-specific enquiry which requires the
evaluation of the circumstances in the individual case.”
(Director of Public Prosecutions v Ziegler [2021] UKSC 23;
[2021] 3 WLR 179, para 59)

145. In the great generality of cases, it is important that the proportionality exercise

is carried out in a granular way taking each point in turn. Nonetheless there can in my
judgment be exceptional cases where the result of the proportionality exercise is so
clear that it would be formulaic to have a requirement to spell out each factor in turn
for the purposes of the balancing exercise. In my judgment this is such a case, and the
court did not when balancing proportionality at any stage in these contempt
proceedings have to articulate all the reasons which Mr Crosland contended that he
had when he breached the embargo and which he contends justified his actions. Self-
evidently they did not justify what he did, as I have explained.

146.     The approach of the respondent is that contempt of court does not engage

article 10 and that proportionality only falls to be considered at the point of the penalty. I do not accept that submission. Contempt of court restricts the right to freedom of expression and may chill the exercise of freedom of speech in relation to
Kyprianou v Cyprus (Application No 73797/01), para 166, the Grand Chamber recorded that it was common ground that it was not just the penalty for contempt but the conviction for contempt that had to be justified. But this difference has in my judgment no impact on the outcome of the present application since on any basis, for the reasons already explained, Mr Crosland cannot show that the embargo violated his article 10 right.
judicial decisions. In my judgment, an embargo imposed prior to hand down of a Court (Law Com No 209, 2012). In
judgment is an interference with the right of free speech and accordingly to be
punishable it must be justified under article 10: see generally Appendix B to the

147. It follows that the exceptional inherent jurisdiction does not arise by virtue of

the bringing of these proceedings or the finding of contempt. There was no unfair
failure to apply article 10 of the Convention.

148. Ground 2 raises no question of an irregularity because the transcript of the

hearing shows that the court was clearly aware of this letter. As I have explained, even
if the scientists only became aware of the judgment through the breach of the
embargo (which has not been demonstrated), that would not provide any justification
for breach of the embargo. So, there is no unfairness in this of the scale and degree
that justifies interference with the Order.

149.     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 v Greece, but this concerned a case where the national court in question had found a contempt by a summary procedure, which was not used in this case. Mr Crosland relied on a number of other minor matters as showing bias, but they do not take his case any further.

heard by an independent and impartial tribunal. The court had, it is suggested,
demonstrated bias by referring the matter to the Attorney General and to the Bar

C.	Conclusion

153.     For the reasons given above, I would dismiss this application.