HM Attorney General v Crosland

Factual and Procedural Background

The Appellant, a barrister, deliberately breached a publication embargo on a forthcoming Supreme Court judgment. On 10 May 2021 a panel of the Supreme Court found him in contempt of court, imposed a fine of 5,000 and awarded costs against him (“the Order”). The Appellant sought to challenge that Order. A differently constituted panel of the Supreme Court was asked (a) whether it had jurisdiction to entertain what the Appellant labelled an appeal and (b) if not, whether the Court should nonetheless reopen the matter in the exercise of its inherent jurisdiction to prevent serious unfairness.

Legal Issues Presented

1. Does section 13(1) of the Administration of Justice Act 1960 confer a right of appeal from a contempt order made by one panel of the Supreme Court to another panel of the same court?
2. If no statutory right of appeal exists, can the Supreme Court invoke its inherent jurisdiction to revisit, vary or rescind its own contempt order where serious unfairness is alleged?
3. Do any of the Appellant’s five grounds (including alleged breaches of Article 10 ECHR, bias, disclosure failures and disproportionality of costs) engage that inherent jurisdiction?

Arguments of the Parties

Appellant's Arguments

• Section 13(1) creates an appeal right that can be exercised before a differently constituted panel of the same court.
• Ground 1: The contempt finding and penalty disproportionately interfered with his Article 10 right to freedom of expression, given the public importance of climate-change information.
• Ground 2: A letter from scientists, allegedly stimulated by the embargo breach, undermined the factual basis of the original judgment.
• Ground 3: By referring the matter to the Attorney General and the Bar Standards Board, the original panel demonstrated bias, infringing the right to an impartial tribunal.
• Ground 4: The Attorney General had withheld relevant material about embargo breaches in another case, amounting to an abuse of process.
• Ground 5: The costs order was excessive and out of line with criminal-law practice.

Respondent's Arguments (Attorney General)

• Under the common-law rule affirmed in numerous authorities, any right of appeal must be expressly conferred by Parliament; section 13 does not do so in relation to Supreme Court contempt orders.
• The term “appeal” in section 13 necessarily denotes a vertical appeal to a higher court; a “horizontal” review by the same court is conceptually and linguistically inconsistent with that provision.
• Court rules made under section 45 of the Constitutional Reform Act 2005 are purely procedural and cannot create a substantive right of appeal.
• Even if no appeal lies, the Supreme Court possesses a narrow inherent jurisdiction to correct serious injustices; none of the Appellant’s grounds meets that stringent threshold.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Arden delivered the leading judgment.

Jurisdiction under section 13. The Court held, for five independent reasons, that section 13(1) does not confer a right of appeal from one panel of the Supreme Court to another:

1. Express statutory authority required. Consistent with Attorney General v Sillem, appeal rights cannot be implied. Section 13 nowhere mentions Supreme Court contempt orders.
2. Substantive, not procedural. A right of appeal is a substantive right; procedural rules made under section 45 of the Constitutional Reform Act 2005 cannot create it.
3. Comparative anomaly. No equivalent right is provided for Scottish cases, making it unlikely Parliament intended one for England and Wales alone.
4. Single-court principle. All Justices are of equal status; permitting a “horizontal” appeal would risk conflicting outcomes and depend on the accidental availability of larger panels.
5. Ordinary meaning of “appeal”. The term naturally denotes a vertical step to a higher court, not a review by judges of co-ordinate jurisdiction.

Inherent jurisdiction. The Court confirmed it retains an inherent power to prevent grave injustice, as articulated in Pinochet (No 2). That jurisdiction is exceptional and ordinarily engaged only where, through no fault of a party, the proceedings were fundamentally unfair.

Application to the present case.

• The embargo was a lawful, necessary and proportionate restriction on publication; Article 10 was not violated.
• Scientific correspondence relied upon by the Appellant did not affect the reasoning of the original judgment and could have been publicised after hand-down.
• No appearance of bias arose from the referral to the Attorney General; the contempt proceedings were conducted independently and fairly.
• The alleged non-disclosure by the Attorney General was irrelevant to the defence and could have been raised earlier.
• The costs order, although substantial, was within the Court’s discretion and not so disproportionate as to trigger the exceptional jurisdiction.

Holding and Implications

APPLICATION DISMISSED. The Supreme Court ruled that it lacks statutory jurisdiction to entertain an appeal from its own contempt order and that the circumstances do not warrant the exercise of its inherent jurisdiction to reopen the matter.

Implications: The decision confirms that a contempt order issued by the Supreme Court sitting in first instance is final and not subject to an internal appeal. Future challenges must rely on habeas corpus (where liberty is at stake) or on the Court’s narrow inherent jurisdiction, which will be engaged only where a compelling injustice is shown. No new precedent was set on the substantive law of contempt, but the judgment clarifies the limits of section 13 and reaffirms the exceptional nature of the Court’s power to revisit its own orders.