Barrister who breached Supreme Court embargo: “I felt I had no choice.”

I am grateful to Matthew for allowing me to reply to his blog-post regarding my contempt of court in breaking the embargo on the Heathrow judgment.

Imagine it is 2016 and you are in possession of a confidential report implying the cladding on Grenfell Tower meets appropriate fire-safety standards. You know that to be untrue. You might feel an obligation a) to sound the alarm; and b) to do so as loudly as you could (regardless of the breach of confidence).

What has that got to do with breaking the Supreme Court embargo on the Heathrow judgment? These were the key facts of our claim: Continue reading “Barrister who breached Supreme Court embargo: “I felt I had no choice.””

Unless he apologises Tim Crosland should never work as – or call himself a barrister again.

Tim Crosland says he has been a lawyer for more than 25 years, but he may not be one for much longer.

For the last five years he has also been a trustee of Plan B, a registered charity which he helped to found, whose objectives are given at length in its governing document, but are more pithily summarised in its twitter profile as:

Taking legal action against the British Government to secure a safe climate future for people and planet.”

He is a strong supporter of Extinction Rebellion, which he considers has achieved more in 18 months than other environmental groups achieved in three decades.

He is the very model of a “left wing activist lawyer,” and if you are interested in his politics and you can face over 40 minutes of his preening self-righteousness then you can watch him talking to Extinction Rebellion’s Roger Hallam – not to be confused with the equally but very differently deluded Roger Helmer – here

On Plan B’s website he is described as:

Tim Crosland, Director

Tim Crosland, Barrister, brings to Plan B expertise in international human rights, environmental law and litigation, and an inter-disciplinary, partnership-based approach to tackling climate change.”

One of Plan B’s legal actions was against the government. Indeed it was originally against the previous administration’s principal unsafe pair of hands Chris Grayling, the former Secretary of State for Transport. Along with Friends of the Earth, Plan B argued that Mr Grayling had unlawfully ignored the Paris Climate Agreement when it designated the “Airports National Policy Statement” as government policy. The ANPS does not of itself grant planning consent for the proposed third runway at Heathrow, but it does set the “policy framework” in which the decision on that consent will be made. It is a framework that makes it more likely that the third runway will ultimately be built.

Plan B lost in the Divisional Court, but last February it won in the Court of Appeal, which ruled that the Mr Grayling had not taken into account the government’s policy commitments on climate change as agreed to in the Paris Agreement.

The Government – by now Mr Johnson was Prime Minister – decided not to appeal. In truth, their defeat in the Court of Appeal may have been rather convenient. It allowed the Prime Minister, who once made what now seems a possibly disingenuous pledge to lie down in front of the bulldozers to prevent the airport’s expansion, to avoid, or at least put off, making any decision about a contentious issue.

By this stage, however, Heathrow Airport itself – Heathrow Airport Ltd – a company who very much did want the third runway to go ahead, had intervened in the case, and they did appeal, hence the case ended up in the Supreme Court.

The judgment itself is not easy reading: those who want to follow the various arguments without getting completely lost will, like me, find the Supreme Court’s Press Summary a good place to start. There will be some who would find the Supreme Court’s video recording of the hearings interesting; but I doubt there will be very many. Mr Crosland represented Plan B, and did so, no doubt in a revolutionary gesture, wearing a suit but no tie. I would illustrate this with a screenshot were it not for the fierce legend at the bottom of the Supreme Court screen:

“… re-use, capture, re-editing or redistribution of this footage in any form is not permitted. You should be aware that any such use could attract liability for breach of copyright or defamation and, in some circumstances, could constitute a contempt of court.”

It may sound rather hair-splitting, but he appears to have represented Plan B in the Supreme Court in his capacity as “Director of Plan B” rather than as a barrister. That, at any rate is how he is described on the first page of the judgment.

Anyway, he lost. I say nothing of the merits of the decision. It turned to a large extent on an arcane point of statutory construction, namely the proper meaning of the phrase “government policy” in S.5 (8) of the Planning Act 2008. There is nothing in the judgment about the merits or otherwise of a third runway, and it makes no more sense to say that the Supreme Court supported its construction than to say that the Court of Appeal opposed it.

As is normal with Court of Appeal or Supreme Court judgments, the parties were supplied with copies of the draft judgment a day or two beforehand. There are lots of reasons for this. It gives them a chance to check the judgment for mistakes or obvious factual errors. Correction of these might occasionally make a significant difference to the outcome; a draft, after all is just a draft. There may be consequential arguments, perhaps about the wording of an order or about costs. It is hardly fair to ask the counsel involved to address these without at least a little time to prepare. But the drafts are supplied on the very clear understanding that their contents are not to be made public until “handed down,” either in open court, or by being formally made public by the Court itself. It is a system that usually works well and does so, like so much in the legal system, on the basis of trust. Solicitors and barristers – whether they have won or lost – can generally be trusted not to abuse it for personal or political advantage. Lawyers who believe that they have a monopoly of virtue are both tiresome and dangerous. Lawyers who cannot be trusted are a menace.

Unfortunately Mr Crosland could not be trusted. The day before the Court was due to hand down its judgment, using the twitter account of Plan B, he denounced the Supreme Court’s decision. He described his outrageous breach of trust as an “act of civil disobedience.” He had, he said “deep respect for the rule of law and the vital role of the judiciary in holding power to account,” although only, it seems, when he wins. The Supreme Court, in upholding what he called Mr Grayling’s treasonous betrayal of the young people of this country” had, he said, “betrayed us all.” 

Talk of treacherous judges in the Supreme Court is reminiscent of President Trump, and it certainly does not sound very respectful. It is the mirror-image of the “enemies of the people” language that some of the British press engaged in during the Article 50 or Prorogation litigation.

Mr Crosland knows that he – and possibly the charity whose twitter account he was usingwill face proceedings for contempt of court. The Court has already referred him to the Attorney General who we must hope will deal with the matter appropriately. Unfortunately he is a fanatic who will – Tommy Robinson-like – try to use a perfectly proper prosecution for contempt of court to turn himself into a political martyr.

The Court has also, entirely properly, referred him to the Bar Standards Board. It is almost inconceivable that they will not seek to discipline him.

However, there is a bit of a mystery here. Despite describing himself as a barrister, Mr Crosland does not appear in a search of the Bar Standards Board register of practising barristers.

It may be that he is an “unregistered” barrister. The law is not entirely straightforward, but is summarised on the Bar Standards Board website:

If someone is a barrister but they do not have a valid practising certificate, they are known as an unregistered barrister. Unregistered barristers are allowed to refer to themselves as “barristers” providing it is not in connection with offering or providing legal services. People who are not barristers may be committing a criminal offence if they describe themselves as a barrister. We may notify the police if we hear someone has been wilfully pretending to be a barrister.”

Unregistered barristers, just like practising barristers, are subject to disciplinary proceedings. They too can be suspended, struck off  or otherwise disciplined.

If Mr Crosland is indeed a barrister, and if he backs down, apologises and admits he was wrong then it may be possible for the tribunal before which he will eventually appear to take a lenient view. If he continues to grandstand and behave as though the ordinary rules of professional conduct do not apply to him because of the purity of his ideals I very much hope it will ensure that he is never able to work as, or call himself, a barrister again.

 

 

A busman’s holiday at the Tommy Robinson Appeal

Barristerblogger had a day in Town on Wednesday; coinciding with both the Cliff Richard judgment and the Tommy Robinson appeal.

A New Attorney-General

While the Cliff Richard judgment was being delivered, a little down the corridor in the Lord Chief Justice’s court a new Attorney-General was being sworn-in before a bench full of colourfully be-robed (and in the LCJ’s case be-chained) judges in their splendidly absurd full-bottomed wigs. Down in counsels’ row the new Attorney-General too was full-bottomed. Someone in the court clerk’s usual seat even had an extraordinary black tricorn contraption which she seemed to have some difficulty balancing on her own full-bottom wig – I have since learnt that she was the Queen’s Remembrancer.

Who, though, was that nice but ordinary-looking man squeezed in at the end of the judges’ bench? Nobody seemed to know, but eventually it turned out he was David Gauke, the Lord High Chancellor of England. He had acquired a yellow and black robe from somewhere, but no wig, so amongst all the bigwigs he looked like a man in a lounge suit at a white tie dinner. He gave a short but sensible speech, leavened with the sort of bland humour that is expected on these occasions.

Pushing and shoving for the best seats

Whilst this solemn ceremony was going on, there was a great deal of polite pushing and shoving in the stalls as members of the public, Barristerblogger included, manoeuvred to grab the better seats in the house. For a time, it was standing room only and as the encomiums to the new Attorney-General continued to flow from the bench, who should slip to the front of the queue, face down in his twitter notifications, but Tommy Robinson’s greatest supporter, PR Svengali and chief fund-raiser, flown over from Canada at Tommy’s special request, none other than Rebel Media’s Ezra Levant. Continue reading “A busman’s holiday at the Tommy Robinson Appeal”

Tommy Robinson’s appeal: will his world class legal team get him out of prison?

According to Tommy Robinson’s family’s “authorised spokesman,” Ezra Levant, the gaoled activist has appealed against his 13 month sentence for contempt of court.

We will have a look at what is actually likely to happen when his case gets to court in a moment, but there may be some readers who have not been following the story closely.

Why is Tommy Robinson in prison?

Since 25th May Mr Robinson, real name Steven Yaxley-Lennon, has been serving a sentence of 13 months imprisonment for contempt of court. The sentence is made up of a 3 month sentence passed for contempt of the Canterbury Crown Court in 2017, originally suspended but now activated, and a 10 month consecutive sentence imposed for a separate contempt of the Leeds Crown Court on 25th May 2018. The Judge who sent him to prison, Geoffery Marson QC, was at the time presiding over a trial involving allegations against a number of defendants.  Unfortunately we do not know many more details because reporting restrictions are in place, probably to prevent jurors in another case hearing inadmissible evidence.

Reporting restrictions? What’s that about? If something is said in court surely it can be reported? Continue reading “Tommy Robinson’s appeal: will his world class legal team get him out of prison?”