Jack Hollingworth: The (Second) Highest Court in the Land? A Case Comment on Attorney General v Crosland [2021] and Supreme Court’s Right to Overrule Itself

Commonly referred to as the ‘Highest Court in the Land’, the Supreme Court holds a unique ability to declare the law with finality. However, the Appellant in Attorney General v Crosland [2021] UKSC 58 successfully challenged this.

The majority in this judgment declared that where an order for contempt of court is granted by the Supreme Court, the Supreme Court itself has jurisdiction to hear an appeal on the same order. Thus, the Supreme Court has reviewed a former Supreme Court panel on the same case.  This challenges orthodox perceptions of the Supreme Court’s constitutional position within England and Wales.

Facts

The case concerned Timothy Crosland – an unregistered barrister involved in R (on the application of Friends of the Earth) v Heathrow Airport . He was provided a copy of the court’s draft judgment on 9 December 2020, embargoed until 16 December 2020. On 15 December 2020, however, he disclosed the outcome of the Heathrow appeal to the Press Association and possibly other media organisations. He issued a statement to similar effect on Plan B Earth’s Twitter account, committing an act of contempt of court ([5]).

The Supreme Court thus imposed a fine of £5,000 onto Mr Crosland and ordered him to pay the Attorney General’s costs of £15,000. Mr. Crosland sought to overturn this Supreme Court order, which would require the Supreme Court to overturn itself.

Majority Judgment

The majority held that the Supreme Court does have jurisdiction to hear appeals from itself regarding contempt of court orders granted by a previous Supreme Court panel.

At [32], the majority distinguishes between the Supreme Court’s usual hierarchical position and their function in punishing for contempt. The majority acknowledge, in the former, that the Supreme Court is “the final court of appeal from which there is no further appeal of any kind”. In the latter, “its jurisdiction to punish for contempt is that of a first instance court”.

The majority states there is a “serious lacuna in the law” if one cannot appeal orders for contempt of the Supreme Court. This ‘lacuna’ motivates the majority to interpret the relevant statutory words of the Administration of Justice Act s 13 broadly to “afford… a right of appeal” ([33]). As such, this section affords a right of appeal when this first-instance activity is undertaken by a Supreme Court panel ([34]).

At [41], the majority holds the provision is unqualified and that “court”, for example, includes the Supreme Court.

The majority essentially disregards section 13(2) and 13(6) of the AJA, and refers back to the broad scope for “court” provided in section 13. They claim that due to the potentially draconian consequences of contempt of court orders, such as imprisonment, “[they] would expect to see an express exclusion of orders and decisions of the Supreme Court” from appeal, if Parliament so intended ([43]).

Further, the Court disagrees with the “conceptual impossibility” of “an appeal from one organ of the Supreme Court to another” (supporting what Lady Arden describes in her Minority Judgment as a “horizontal appeal”) ([46]).

Thus the majority are undeterred by statutory wording and concerns of conceptual analysis and proclaim their jurisdiction to hear the case.

The Supreme Court has jurisdiction to overrule the judgment of a differently-composed Supreme Court in the same case, regarding contempt of court orders.

Dissenting Judgment (Lady Arden)

Lady Arden provides a powerful dissenting judgment which disapproves of the majority’s understanding through five reasons.

Firstly, “rights of appeal must be created expressly by legislative authority” ([99]). Lady Arden cites Attorney General v Sillem (1864) and R v Stock (1838) in support of the notion that a right to appeal cannot be judicially implied; it must be expressly present in statute.

Indeed, neither Section 13(1) nor Section 13(3) describe a right of appeal from the Supreme Court. Nor is it necessarily implied by Section 13’s wording, as ‘appeal’ naturally suggests a movement to a higher court.

Secondly, “rights of appeal are substantive and not procedural” under The Colonial Sugar Refining Co Ltd v Irving ([112]). This prevents the “gap in the jurisdiction of this court” from being filled by Supreme Court Rule 9(7), which operates where no provision is made for procedural issues within an appeal. This rule cannot operate in the present case to fill the gap of an individual’s lack of a right to appeal a Supreme Court contempt of court order.

Thirdly, “no equivalent right applies in Scottish appeals” ([115]). Unlike Northern Ireland, there is no equivalent to section 13 operating in Scotland ([116]). Thus, permitting a right of appeal from the Supreme Court in England and Wales would produce an anomaly wherein contempt decisions would be subject to appeal “where the matter arose from an appeal from England and Wales but not from Scotland.” ([115]).

Fourthly, “the Supreme Court is a single court, not a court composed of divisions or having unlimited jurisdiction” ([117]). This entails that all Supreme Court Justices are of equal standing, and hence cannot “review the acts of others by way of an appeal” ([117]). Indeed, Lady Arden denies that a larger-composed Supreme Court panel would constitute a panel of higher authority than a lesser-composed panel.

Fifthly, “an appeal naturally means an appeal to higher authority” ([121]). Here, Lady Arden introduces the distinction between “a vertical right” of appeal to a higher court ­ and “a horizontal right” of appeal, introduced by the Majority in this case, from one court to itself (herein the Supreme Court). Referring to the first of her reasons, Lady Arden denies that “appeal” in AJA section 13 can support the Majority’s interpretation that it covers horizontal rights of appeal. Lady Arden claims it is “not an open-textured word” and it is “the core feature of an appeal… that it is a process of review involving a higher court”, not one of equal authority ([127]).

Thus, Lady Arden would dismiss the application in this case, denying that the Supreme Court has the jurisdiction to overrule itself.

Commentary

The constitutional step taken by the Majority, eloquently identified by Lady Arden, is drastic, and requires strong reasoning to provide for its conclusions. The majority fails to do so in this case.

Firstly, it is questionable as to why the Supreme Court would not merely refer the case back to the first instance court to give effect to the order. This is preferable to granting the Supreme Court jurisdiction to overrule itself. This has created a conceptual misfortune of there being a court higher than the Supreme Court itself.

Secondly, there are practical problems with the “horizontal right” to appeal. The Majority admits that one of the reasons for granting the Supreme Court jurisdiction over itself in this case is that “it has proved practically possible for there to be an enhanced non-conflicted panel of Justices”, hinting that this may be an exceptional case ([46]). Lady Arden identifies this at para [118], noting “it may not be possible to assemble such a panel” in all instances. This is particularly problematic from a rights perspective, for the horizontal right becomes contingent upon the Supreme Court’s ability to arrange itself in a non-conflicted manner.

Thirdly, the majority’s expansion of “appeal” to incorporate horizontal rights, unsupported by statutory language, hence has wide-ranging implications for the notion of appeal itself. At para [122], Lady Arden questions whether “appeal” under AJA s 13 includes horizontal rights in general. If so, she questions whether a right of appeal is “an inherent part of the right to a fair trial” ([122]).

Finally, the majority’s statement at para [43], that the ‘draconian consequences’ of a contempt of court order supports the notion that Parliament would expressly exclude the subjection of the Supreme Court to appeal if such was intended, is particularly confusing. Indeed, in the opposite direction, given that the constitutional circumstance of the Supreme Court being the highest appellate court in England and Wales, one would surely expect an express inclusion of a right of appeal from the Supreme Court if this was desired. The majority’s post-structuralist reasoning here leads to an unnatural conclusion.

Conclusion

Thus, the majority’s judgment cannot be supported as it corrupts the understanding of both the Supreme Court’s constitutional position and the meaning of a citizens’ “right” to appeal. The majority selectively acknowledges points of potential criticism against its judgment and unsuccessfully distinguishes its judgment from them. Lady Arden, on the other hand, provides various powerful reasons why the Supreme Court should be denied jurisdiction to overrule its own decisions in contempt of court order cases.

This case will likely be of vast constitutional importance. Indeed, the headnote phrase ‘Michaelmas Term [2021] UKSC 58 On appeal from: [2021] UKSC 15’ is already unique. The case is coupled with grave and wide-ranging implications, both practical and doctrinal, which are identified throughout Lady Arden’s dissent. In cases regarding Supreme Court orders following contempt of court, it appears that the Supreme Court is no longer the ‘highest court of the land’.


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