On deliberate contempt as professional martyrdom

A personal Statement from ‘barrister’ and director of plan.b earth (published yesterday) Tim Crosland has caused a stir, because of an apparently deliberate and pre-meditated breaching of a Supreme Court embargo on its decision on Heathrow’s Third Runway (published today). It began like this:

Tomorrow, 16 December, the Supreme Court will publish its judgement on Heathrow expansion. I have taken the decision to break the embargo on that decision as an act of civil disobedience. This will be treated as a “contempt of court” and I am ready to face the consequences. I have no choice but to protest the deep immorality of the Court’s ruling.

Tim Crosland

Lawyers will know that being in contempt of court can bring with it prison, although I am inclined (without I confess knowing much about contempt) to the view that this is not how the case will end. I’d expect more pragmatism from those who decide the contempt case; Mr Crosland may have thought he had no choice, but they do. So far the Supreme Court have said that they, “will refer Crosland to the attorney general and will make a complaint to the BSB. The decision on whether to commence proceedings in response to the leak will be taken by the attorney general and not by the Supreme Court itself.”

What I think is more likely to pose an issue is how the Bar Standards Board deal with what seems to me to be a pretty flagrant, and not very estimable, breach of professional rules by an apparently unregistered barrister: “According to his LinkedIn profile, Crosland was the National Crime Agency’s head of cyber, prevention and information law between 2013 and 2015 and previously worked as a barrister in private practice.”

Embargoes serve a purpose in preparing the parties for the delivery of a judgment. They serve a modestly useful function in the delivery of justice and the reporting of it. To speak in practical terms for a moment, Mr Crosland has used the embargo to seize a portion of the news cycle ahead of the stories today that will be dominated by the judgment (and, I assume, its critics). Mr C wanted to go first, before anyone else could speak. And it worked, to a point, if this headline is typical.

The statement itself does not raise any legal failing by the Court that I can see. It offers a moral critique instead. There is some discredit thrown at Heathrow Airport for having ‘an army of lawyers’ to overturn the decision of the Court of Appeal and the sentence, “The Supreme Court’s judgment, which has legitimised Mr Grayling’s use of the deadly 2˚C threshold, has betrayed us all.” But there is no legal argument being made that I can see. The main point of the statement really seems to be to breach the embargo.

It is worth noting that the personal statement does not refer to Mr Crosland as a barrister. He says this:

I have been a lawyer for 25 years and a legal adviser to government agencies. I was a Deputy Director at the Serious Organised Crime Agency. I have deep respect for the rule of law and the vital role of the judicial system in holding power to account. That is why it is a duty to protest a decision that so gravely betrays that purpose

Tim Crosland

Planb’s website does though.

It raises the interesting question as to whether Mr Crosland is holding himself out as a barrister on the site (Rule s9 defines practising as a barrister as including holding yourself out as a barrister while providing legal services. It seems likely he is providing legal services only to planB, who nonetheless want to hold him out as being a Barrister and he is a (the?) director of them. PlanB’s raison d’etre is the conduct of test case litigation. This might in fact be his biggest problem as, if he is found to be holding out, it is a criminal offence to say he is a barrister when he is non-practising and one unrelated to his statement. It’s the martyrdom of a really bad parking ticket if so.

An interesting dimension is that Mr C appeared before the Supreme Court as the Director of PlanB.

Suspension of striking out might also beckon. As someone called to the Bar, the Barrister’s Code of Conduct applies to him (rl7.1 and 7.1c). Core Duties CD1 (You must observe your duty to the court in the administration of justice) and CD3 (You must act with honesty, and with integrity) are engaged.  As may be CD5 (You must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession). 

The argument would essentially be that an unwillingness to abide by a simple injunction to embargo a judgment would diminish the trust the public (and indeed the court) would have in that advocate and more concretely and safely from a prosecution perspective be a failure to observe his duty to the court and the administration of justice. Doing so in a pre-meditated way for a bit more attention in the news cycle is likely to aggravate the way the offence is seen. That the larger purpose, the protection of the planet, is both very laudable and more weighty will, I would surmise, count for nought. This is so for a bunch of reasons, not least that an extra fifteen minutes of fame for the cause are not going to save the planet either; but, more seriously, because the substance of legal disputes is not uncommonly more important than many professional conduct breaches. That does not stop their prosecution or punishment.

And there may similarly be questions of integrity to be argued, not because of any quasi-dishonesty, putting to one side the rather naive claim that he had no choice, but his apparently pre-meditated disregard for the normal rules of professional behaviour, backed as he knows by the somewhat sledgehammer potential of contempt proceedings. Such disregard for professional and court rules might earn a finding of lack of integrity, but my instinct is that this will be avoided too unless they want to tempt the courts to think again about integrity after Wingate and Evans and Beckwith. His statement is an attempt to play for martyrdom by breaching sensible rules and for rather modest gain to his cause; the outcome for him will be similarly prosaic. A fine, or suspension perhaps, and he will change his planB webpage too, at a guess. All before the challenges to the Heathrow planning hearings are heard, I’d surmise too, without any expertise whatsoever.

Postscript

Tim Crosland has explained his actions in a piece in the Independent. The main driver was the Supreme Court’s failure to discuss the 2C target from the draft judgment. This is probably the most interesting and important paragraph form the piece:

I wrote to the court to say the draft judgement, if uncorrected, would conceal from the public that vital fact that the third runway had been approved on the basis of a dangerous target. I would make a public statement if they failed to put that right. Otherwise I felt I would be complicit in the cover-up. I asked the Supreme Court for leave to talk to a lawyer to discuss the implications of the Supreme Court’s ruling during the embargo period, knowing that there was a short time window to take action. It refused. But it could not put it right. If it acknowledged that Grayling had relied on the wrong temperature limit, it would have to reverse the decision. It added two short references to 2C, ruling the issue was “irrelevant”.

Tim Crosland

I am afraid that justification does not change, in my mind anyway, the professional conduct implications. Some might think that threatening to ‘go public’ as a way of persuading the Supreme Court to change its mind, if that is what he did , is an aggravating factor. And Mr Crosland says he is resigned to being struck off as a [non-practising] barrister. it’s interesting that he did not take the opportunity to explain his concerns with the SC reasoning in his statement. It makes no difference to his professional difficulties, I think, but in terms of the politics and publicity of it, it would have been a more powerful protest if he had said, the Supreme Court’s judgment suggested they did not take the 2C point seriously.

Two further points: Mark Stobb’s comments on the blog are well worth a read for the ‘holding out’ discussion. Those who know Mark know he knows this stuff well. And also, I think it is worth noting Matthew Scott’s blog. He frames the matter as one of trust, and that for me echoes my wondering about whether any misconduct concerns will be framed as an integrity issue.

I’m perfectly okay with lefty lawyers myself, and with protest, given the acceptance that it has professional consequences. I am not sure the stick is worth the candle here, and I am fairly clear in my own mind that Mr C would have been better concentrating on the specific problems with the judgment and leaving those points until after publication.

8 thoughts on “On deliberate contempt as professional martyrdom

  1. Reblogged this on | truthaholics and commented:
    Ronald Dworkin held that there are three types of civil disobedience:

    “Integrity-based” civil disobedience occurs when a citizen disobeys a law she or he feels is immoral, as in the case of abolitionists disobeying the fugitive slave laws by refusing to turn over escaped slaves to authorities.
    “Justice-based” civil disobedience occurs when a citizen disobeys laws to lay claim to some right denied to her or him, as when blacks illegally protested during the civil rights movement.
    “Policy-based” civil disobedience occurs when a person breaks the law to change a policy (s)he believes is dangerously wrong.
    ~ Ken Kress and Scott W. Anderson (Spring 1989), Dworkin in Transition, 37, The American Journal of Comparative Law, pp. 337–351

  2. Good stuff Richard. Quite agree. Of course, we’d just say it was “bringing the profession into disrepute”. You may find this case interesting. Essentially the lawyer tried to get his client to enter into a contract preventing her from complaining about the professional conduct of a lawyer.

  3. The non-practising/unregistered area of the Bar rules has always been a bit of a nightmare but:

    1. It’s not a criminal offence to hold yourself out as a barrister if you’re unregistered: the offence in s.181 of the Legal Services Act is to describe yourself as a barrister if you’re not.
    2. It is an offence to exercise a right of audience if you don’t have one (ss 14 – 18 of the Act) and appearing in the Supreme Court would be doing just that – however, I suspect that he’ll either have the leave of the court to appear or a waiver from the BSB.
    3. Whether you can hold yourself out as a barrister when you’re unregistered hinges on whether you’re offering legal services or not and there’s a pretty grey area, it seems to me, around individuals who hold what I assume are executive roles where it may be quite difficult to avoid using their general legal skills/knowledge. In this case, given that he’s appearing for them in the Supreme Court and, since no solicitors are mentioned, presumably doing all the preparatory work as well, it’s hard to argue that he’s not and this looks like a breach of the Code.
    4. It would be surprising if a barrister of his seniority and in a case of this interest hadn’t sorted this out beforehand – it’s the sort of point opponents in litigation tend to notice – and it would not surprise me if he’d got a waiver from the BSB to cover this.

    If that’s the case, I suspect that they might want to review that waiver in the light of his comments.

  4. Richard

    Thank you for your blog.

    I saw him break the embargo on Twitter. To be honest, I was a bit perplexed. How was one day going to make a difference to the decision apart from getting ahead of the Press Pack? I did also see Greta Thunberg pick up the case (via the Guardian I think) and perhaps, apart from the regulatory and/or ethical issues, I wonder if the bigger picture is why the Court found for Heathrow in the face of the overwhelming evidence that air travel is a major contributing factor to climate change? I’m sure the general public won’t read the decision and will be left wondering how the ‘law’ is out of step with a large part or an increasingly vocal part of society that feels more needs to be done to tackle the climate emergency.

    Regards
    Julian

    1. Hi Julian. It looked like a classic judicial review case: it was within the bounds of what was lawful (but was according to the C.A.). I think the judicial response would necessarily be the public should be looking to the politicians on this matter. Unless we think the judges got the law wrong, and I have no view on that but it is notable that TCs statement did not seek to persuade anyone on that, that seems the right call to me.

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