What if the top court gets it wrong?

Can you appeal to the Supreme Court against a decision of the Supreme Court?

The unsuccessful appeal today by Tim Crosland, an unregistered barrister who deliberately disclosed a confidential ruling by the UK Supreme Court, raises the fascinating topic of what a final court of appeal can do when it is said to have got something wrong.

As I explained here in May, Crosland campaigned against plans to expand Heathrow airport. He took part in an appeal to the Supreme Court as a director of Plan B, a charitable organisation that supports strategic legal action against climate change. But his side lost: the court allowed an appeal by the company that owns the airport.

Tim Crosland

In accordance with normal practice, the court had circulated a confidential draft of its judgment to the parties a week in advance. Crosland issued a statement the day before judgment was delivered in which he confirmed he had deliberately “breached the embargo as an act of civil disobedience”.

The Supreme Court referred the matter to the attorney general¹ who decided to bring contempt of court proceedings. A panel of three Supreme Court justices accepted the attorney’s arguments and fined Crosland £5,000 for contempt. He was later ordered to pay a further £15,000 towards the attorney’s costs.

Crosland lodged an appeal. But at a hearing in October, counsel for the attorney general argued that the Supreme Court had no power to hear an appeal against one of its own decisions.

That raised an important question which is summarised in the majority judgment today:

The ordinary work of the Supreme Court is of course to act in an appellate capacity, as the final court of appeal from which there is no further appeal of any kind. There is no higher court by which a further appeal could be heard.

In sharp contrast, its jurisdiction to punish for contempt is that of a first instance court. It is not in exercising that jurisdiction acting in an appellate capacity at all, even though the matters said to constitute the contempt will almost always have arisen in the course of appellate proceedings.

That gives rise to two opposed questions of principle. First, how can there be an appeal from a decision of the Supreme Court? But secondly, how can there not be an appeal from the exercise at first instance of a contempt jurisdiction, which extends to the imposition of an unlimited fine and, more seriously, a sentence of imprisonment?

This is uncharted territory. The only time anything like this has ever been raised before was in 1998, just after the UK’s final court of appeal had heard the first of three appeals involving Augusto Pinochet.

I recalled these events a decade later. The former Chilean dictator had been challenging attempts to extradite him to Spain, where he faced charges of torture and hostage-taking. By a majority of three to two, the law lords allowed an appeal by the Spanish prosecutor.

A few days later, it emerged that Lord Hoffmann — one of the three law lords in the majority — had links to Amnesty International, which had been made a party to the appeal. Hoffmann’s failure to declare his interest was strongly criticised by Lord Hope, a law lord who was not involved in the case.

But what, if anything, could the House of Lords do about it? Asked this question on the Today programme, I confidently asserted that the law lords could not overturn one of their own decisions. They were no longer bound to follow previous rulings in other cases, I acknowledged. But they could not simply say they had made a mistake and start again.

I was wrong. Clare Montgomery QC persuaded the law lords that — as there was no other court that could set aside orders they had improperly made — they must have the power to do that. A new hearing was ordered before a different panel.

On that occasion, the House of Lords had been exercising its inherent jurisdiction to put right a serious procedural error — Hoffmann’s apparent bias. But a majority of the Supreme Court who ruled today did not think they could rely on the inherent jurisdiction of a superseded court to hear a case like this.

Fortunately, they had another option: section 13 of the Administration of Justice Act 1960, which provides for an appeal against “any order or decision of a court in the exercise of jurisdiction to punish for contempt of court”.

Counsel for the attorney general said that didn’t apply, arguing that “the very concept of an appeal from the Supreme Court to a higher court is a conceptual impossibility”. But of the five justices who heard Crosland’s appeal, Lady Arden was the only one to be persuaded by the attorney’s arguments.

Lords Briggs, Kitchin, Burrows and Lady Rose explained that this was not an appeal from the Supreme Court to the Supreme Court. It was an appeal from a panel of three justices (who had not sat on the original case) to a panel of five justices (who had not sat on the original case or on the first contempt hearing).

This was not a free-for-all, the court stressed. It didn’t open the floodgates to appeals from one panel of judges to another at the same level. It was simply a way of considering an appeal in a contempt case.

Having decided by a majority that it could hear Crosland’s appeal, the panel considered its merits and unanimously dismissed it.

Comment

Arden, who turns 75 next month, is the longest-serving full-time judge now sitting in the United Kingdom. She was appointed to the High Court in 1993, which meant she was not affected in 1995 when the retirement age for new judges was reduced from 75 to 70. She will continue to give judgment in the cases she hears before she retires, but today’s partial dissent will be among the last rulings she delivers.

Arden offers five reasons for concluding that the Supreme Court had no jurisdiction to hear Crosland’s appeal. Basing her arguments on a broader reading of the Pinochet ruling, she does say that the Supreme Court has inherent jurisdiction to review an order that has resulted in significant unfairness. However, Crosland’s arguments did not persuade her to exercise that jurisdiction.

As the majority acknowledges today, there are some difficulties in relying on section 13 of the 1960 act. But its solution to the problem makes good sense. Just as there had to be a way of challenging the first ruling in the Pinochet case, there had to be a right of appeal in the Crosland case.

But that’s where the comparison ends. The Pinochet ruling needed to be overturned. The Crosland contempt ruling did not.

1. Suella Braverman was serving as attorney general when key decisions were taken. But the case was handled at various times by Michael Ellis.