The US Supreme Court leak – the “gravest, most unforgivable sin”. How do the English Courts treat similar breaches?

Thursday, 05 May 2022 | Marc Livingston

The leak of the United States Supreme Court’s draft opinion, purportedly confirming that the Court is preparing to rule in favour of the State of Mississippi that the State is permitted to stop the vast majority of abortions at and after 15 weeks gestation, is making shockwaves all over the world. This is primarily due to the emotive subject that the opinion deals with, but also the serious breach of confidentiality in the release of a draft Supreme Court decision before it is made public.

The “SCOTUSblog” twitter handle (which describes itself as providing “Independent news and analysis on the U.S. Supreme Court since 2002” and has over 565,000 followers) commented that “It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.”

The leaking of confidential or embargoed court judgments is not just a US phenomenon. Indeed, there have been a number of recent cases in the English Courts where similar breaches have occurred. These breaches are very serious, and in some cases, could amount to a Contempt of Court, putting the perpetrator at risk of being sentenced to up to two years in prison.

The rules governing how draft or embargoed judgments should be treated are found in CPR Practice Direction 40E and specifically:

  1. Paragraph 2.4, which states that the lawyers may send their clients a copy of the draft judgment so long as:

(a) “neither the draft judgment nor its substance is disclosed to any other person or used in the public domain”,

(b) “no action is taken (other than internally) in response to the draft judgment, before the judgment is handed down”;

  1. Paragraph 2.6, which allows certain organisations (so long as they are a “party” under para 2.4), to distribute copies of the draft amongst themselves provided that “all reasonable steps are taken to preserve its confidential nature and the requirements of paragraph 2.4 are adhered to”;
  2. Paragraph 2.8 which states that breaches of para 2.4 or 2.6 may be a contempt of court.

The Court of Appeal also set down guidelines 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 (16 February 2022). In this case, the summary of an embargoed judgment in an appeal by the Welsh Government over the provisions of the Internal Market Act 2020 was published on the website, twitter feed and LinkedIn profiles of Matrix Chambers the day before judgment was handed down, and remained online for five hours before it was taken down. Matrix, the chambers of both counsel who had acted for the Appellant in the matter, stated that the error had been “inadvertent” and offered “an absolute, unreserved apology”.

Sir Geoffrey Vos, the Master of the Rolls warned that: “In future, those who break embargoes can expect to find themselves the subject of contempt proceedings as paragraph 2.8 of CPR PD40E envisages.”), He also set down some general guidelines at paragraphs 29-31:

  1. The provisions of CPR PD40E are mandatory.
  2. People within barristers’ chambers who are not the instructed lawyers are not a party pursuant to Para 2.4 and should not have been sent a summary of the judgment by counsel;
  3. Chambers publicity is not a legitimate activity to prepare for whilst the judgment is embargoed. This is in contrast to a corporate entity (who is a party to proceedings) who wanted to prepare a press release immediately on hand down to explain the judgment;
  4. It is sufficient for one barristers’ clerk to have been the link between counsel and the court. No one else in chambers should have had access to the embargoed judgment;
  5. The procedures that chambers had in place in order to avoid the inadvertent leaking of an embargoed judgment had been insufficient;
  6. It is the instructed legal representatives (both solicitors and counsel) that have a responsibility to the Court for ensuring that judgments remain embargoed until hand-down and those who breach their obligations face a real risk of being the subject of contempt proceedings.

In this instance, no doubt due to the inadvertent nature of the breach, the Judge decided that those responsible should not be the subject of contempt proceedings.

However, the same cannot be said for instances of someone deliberately breaching their obligations and leaking a draft judgment, as happened in in HM Attorney General v. Crosland [2021] UKSC 58 (Crosland) (on appeal from [2021] UKSC 15). In this case, Mr Crosland, a barrister instructed by Plan B in a case at the UK Supreme Court regarding Heathrow’s third runway, was found to have deliberately leaked the decision to the Press Association. This was determined by the Supreme Court to be a “criminal contempt” as Mr Crosland’s actions were sufficiently serious it interfered with the administration of justice. The Court determined that Mr Crosland had deliberately disobeyed the Court’s embargo and abused the Court’s judgment hand-down procedure in order to “gain publicity” for his cause and himself. However, mindful of the fact that “any penalty imposed must be necessary for the legitimate objective of maintaining the authority and impartiality of the judiciary and must be proportionate for that purpose”, the Court decided that in the circumstances a fine would be the appropriate sanction.

Despite the serious warnings given in these cases, parties are still making mistakes. Coincidentally, a further instance of an embargo being breached was reported this week in the case of Match Group LLC & Anor v Muzmatch Ltd & Ors [2022] EWHC 1023 (IPEC). In this case the Defendant Company itself (as opposed to their lawyers, who were found to be blameless) was found to have sent a draft press release to various news outlets in advance of the judgment being handed down, on the condition that the press release itself was embargoed. The Judge concluded that this was not within the permitted activities set out by Sir Geoffrey Vos; however, it decided in the circumstances to accept an apology as sufficient mitigation. .

Notwithstanding the above, given that Contempt of Court is treated very seriously by the English Courts and can more often than not lead to a term of immediate imprisonment being imposed, those who seek to copy what has happened in America would be advised to tread very cautiously indeed.

This article was co-authored by Marc Livingston and James Mullion

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