Timothy Crosland, an unregistered barrister and director of environmental group Plan B, has been disbarred for deliberately flouting a Supreme Court embargo on a draft judgment.
In 2020, the Supreme Court heard an appeal in the case of R (Friends of the Earth Ltd and others) v Heathrow Airport Limited [2020] UKSC 53, which concerned plans for a third runway at Heathrow airport. Mr Crosland represented the Second Respondent, Plan B Earth. As is normal practice, a draft judgment was circulated to the parties' legal representatives before hand-down. The purpose of this is for the parties to correct obvious mistakes (e.g. typographical errors/the misspelling of names) and to prepare argument for any consequential order flowing from the judgment. This is provided for by Practice Direction 40E of the Civil Procedure Rules. Draft judgments are embargoed meaning they - and the outcome of the case - must be kept confidential ahead of their approval/formal handing down by the Supreme Court. They are endorsed with a form of penal notice, warning that breach of the embargo can amount to a contempt of court.
The draft judgment indicated that the Supreme Court had overturned a decision of the Court of Appeal, paving the way for a third runway. Unhappy with the decision, Mr Crosland emailed the Press Association a statement in which he disclosed the outcome of the appeal, stating, "I have taken the decision to break the embargo on that decision as an act of civil disobedience. This will be treated as ‘contempt of court’ and I am ready to face the consequences". The statement was also tweeted by Plan B.
In May 2021, Mr Crosland was found in contempt of court by the Supreme Court and ordered to pay a £5,000 fine and £15,000 in costs (which he unsuccessfully appealed to a separate Supreme Court panel in HM Attorney General v Crosland (Rev1) [2021] UKSC 58). The matter was referred to the Bar Standards Board, which brought proceedings against Mr Crosland before a disciplinary tribunal. The tribunal found that Mr Crosland had "...behaved in a way which was likely to diminish the trust and confidence which the public places in him or in the profession and behaved in a way which could reasonably be seen by the public to undermine his integrity.’ That the breach of the embargo was deliberate, in the knowledge that it amounted to a contempt of court, was held to be an aggravating factor. Mr Crosland, who was unrepentant, was disbarred.
Comment
In recent years, senior judges have expressed increasing concern about the number of draft judgments (or information about the outcome of a case) making their way into the public domain, normally inadvertently. In 2020 this included a press release published early in error by a barristers' chambers. This led to the Master of the Rolls providing guidance on the protocol for draft judgments in The Counsel General for Wales, R (On the Application Of) v The Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181. It was made clear that any future breaches of an embargo were likely to lead to contempt proceedings. Pursuant to that guidance, in Wright v McCormack [2022] EWHC 3343 (KB) Mr Justice Chamberlain directed (on the Court's own initiative), that contempt proceedings take place against the claimant in those proceedings on the basis that a forwarded email and Slack messages may have disclosed the substance of a judgment whilst it was still under embargo.
The Solicitors Disciplinary Tribunal had little choice but to disbar Mr Crosland. In his case, he had deliberately flouted the embargo knowing full well it could result in him being imprisoned for contempt of court. It was a seemingly pointless attempt at martyrdom (the judgment was handed down days later and so it is difficult to understand what meaningful political point was being made in releasing it slightly early) that undermined the administration of justice and the trust that is placed in lawyers by the judiciary. To that end, it was no surprise that Mr Crosland's actions were met with consternation by the majority of practicing lawyers. A more taxing case for a tribunal in the future will be a lawyer who carelessly breaches an embargo, albeit that any lawyer in such a position will struggle to get away with saying they have not been warned.