The signing of a Declaration of Conscience by over 100 lawyers to withhold their professional services in respect of supporting new fossil fuel projects and acting against climate protesters exercising their democratic right of peaceful protest has caused, as barristers might say, a bit of a stir.
The reason for a sense of unease is the attack on what is commonly known as the cab-rank rule, the principle that barristers must, if they are available, take up any case that is within their area of professional expertise and at a proper fee for the job. And they must do this regardless of the identity of the client and ‘any belief or opinion which they may have formed as to the character, reputation, cause, conduct, guilt or innocence of the client.’ In essence, as many barristers have commented, the rule means that barristers, by reason of the cases they are involved in, should not by that fact be associated with the client or any cause or belief espoused by that client.
The cab-rank rule is unique to barristers. It does not apply to solicitors, who are governed by a different Code of Conduct, or to other legal professionals. The rule is contained in rule C29 of the Bar Code of Conduct (in Part 2 of the BSB Handbook). It is closely linked to another rule (referred to as a broader concept of non-discrimination) in rule C28 which includes the following prohibition: ‘You must not withhold your services or permit your services to be withheld: 1. on the ground that the nature of the case is objectionable to you or to any section of the public; 2. on the ground that the conduct, opinions or beliefs of the prospective client are unacceptable to you or to any section of the public.’ The reasoning behind this rule is contained in the guidance section: ‘This rule of conduct is concerned with a broader obligation not to withhold your services on grounds that are inherently inconsistent with your role in upholding access to justice and the rule of law.’
Access to justice and the rule of law are the arguments many barristers would use to defend the cab-rank principle. First, a client charged with a truly horrible crime, for example, might struggle to obtain representation if barristers were able to impose their own views as to whether they were deserving of a defence or not. Secondly, regarding the rule of law, there is doubtless no better definition of what this means than by Lord Bingham in his book, The Rule of Law (publisher Penguin Books) that, at its core, ‘all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts.’ It means, in essence, that we should enjoy the protection afforded by the law, but also abide by those laws as they apply to us.
The problem, of course, is when the laws of the land cease to gain respect, or positively work against what might be termed a greater good. At its heart, this is the driving force behind the declaration of conscience, that we are facing a climate emergency, that people are fighting to give this the attention it deserves by peaceful protest, and prosecuting them for offences they may have committed in the process is unconscionable given the overwhelming public interest they serve. And for those reasons, say the signatories, we won’t do it.
There have been a number of articles recently which encompass both sides of the argument, many of them prompted by The Daily Mail kicking off with the headline, ‘Fury at woke barristers refusing to prosecute eco warriors’, with reference to the Declaration of Conscience and the ‘fierce condemnation’ this triggered from senior members of the legal profession who accused the signatories of undermining the cab-rank principle, that everyone is entitled to access to justice.
Jolyon Maugham KC, founder of the Good Law Project, hit back in his article in The Guardian by saying that, ‘The cab rank rule is bound up, inseparably, with the idea that the law is right and its ends are worth upholding.’ He concludes that barristers should not be forced to work for the law’s wrongful ends by helping to deliver new fossil fuel projects, or forced to prosecute those protesting against the destruction of the planet. Others have commented that the cab-rank rule provides a cloak of protection for barristers acting for dubious clients, when in fact they should take ownership of their decision to represent them.
As ever, the nature of a good lawyer is to develop and advance a convincing argument, whatever side of that argument they may be on, even where strong advice has been given, and rejected, about the likely outcome. Sometimes you have to wear that metaphorical cloak of armour as a barrister and advance arguments which, frankly, make you cringe. Sometimes you have to represent people accused of the most appalling crimes. Sometimes the verdict is guilty, and sometimes the verdict is not guilty. A professional duty of a barrister is to put your client’s case, however hopeless, uncomfortable or embarrassing you may personally feel that case to be, since the barrister is an advocate for the client in court and not their judge or jury. The same goes for prosecuting, since you may feel considerable sympathy when a case has run its course for the individual who now sits in the dock. That you would prefer to be on the other side of the individual case you have been instructed on is simply part of the lottery of life.
Should barristers now stop to think, when instructed in a case, ‘is this case based on a good law or a bad law?’ It may be that they think the law per se is OK, but the circumstances in which a person is, for example, being prosecuted, are unfair, or securing a conviction against them would be unfair. Does that turn a good law into a bad law? Is that a reason to refuse instructions on grounds of conscience? Or is this the very reason that lawyers exist (i.e. to argue both sides), that judges exercise a wide discretion, and that juries cannot be told, by any barrister or judge, that their verdict must be guilty? And is this not the very reason that protest, and the right to freedom of expression exists, to change and influence those laws which no longer represent the views of our society?
Many people will have sympathy with eco-protesters and many will not. Barristers are no different, but the problem comes down to this - when barristers take a public moral stance in support of a cause, then those that do not, either because they disagree with their colleagues or simply because they choose to keep their views to themselves, may find themselves publicly labelled as supporters of the opposite cause. Their own silence may accuse them. When instructed in unpopular cases, barristers may be perceived as aligned with those cases and that lottery of life (the side of the case they happen to be instructed on) could have very real consequences.
A barrister attending court, instructed to prosecute eco-protesters who are charged with a criminal offence, may now be seen to personally identify as anti-protest or even anti-planet. A barrister representing an employee dismissed from work due to an allegation of racism, may be seen to align with their client’s views, and that’s before the case has even been heard and judgment delivered. A barrister representing an individual censured for their views on gay marriage, may be seen to align with those views, even though those views may in fact be abhorrent to them. Should they publish their personal views before stepping into court to avoid inferences being drawn? Pity the criminal barrister who represents the parents accused of the murder of a child, or the alleged rapist or paedophile.
Shouting loudly about a cause is the essence of public protest, but just as individuals have a right to freedom of expression, they also have a right to silence. It is for protesters to decide how to protest and, where a line may have been crossed, for barristers to argue their cases. After all, that’s what barristers do, it’s why they became barristers in the first place, to use their mental acuity to argue the side they are given. But if they decide the time has come to choose the side they would prefer, or to vet their clients or their cause as ‘good’ or ‘bad’, precisely what the cab-rank rule is intended to prevent, then perhaps their best approach would be to choose another profession altogether.