The ‘Declaration of Conscience’ that has sparked a heated debate on the need for the cab-rank rule is just a “magician’s trick” and “a performative, protest document”, the chair of the Criminal Bar Association has said.
There has been widespread media coverage of the declaration, in which more than 120 lawyers of various stripes and students pledged not to prosecute climate protestors or advise on fossil fuel projects.
Some of the barristers reported themselves to the Bar Standards Board (BSB) over this potential breach of their regulatory responsibilities.
It will be formally launched today outside the Royal Courts of Justice by the group Lawyers Are Responsible.
In her weekly message to Criminal Bar Association members, Kirsty Brimelow KC observed that the range of signatories – “some retired, some without any rights to appear in any court or to give any legal advice – pulls away the curtain of headlines to reveal a performative, protest document”.
She continued: “It is a magician’s trick.”
“Engaging with the substance of climate change and global warming and identifying means to legally empower those who have an action against a corporation causing environmental damage is more meaningful than posturing to a fantasy future of instructions suddenly arriving from BP or a career in criminal law and entry onto the CPS panel,” Ms Brimelow went on.
“The document may be well-intentioned, but it is ill-thought out. It would maintain some credibility if it did not pretend to be something it is not. It is not about the cab-rank as the signatories will never be a position of refusing cases.”
The silk argued that the rule was “rooted in protection of access to justice for the poor and vulnerable”.
It both levelled the playing field when those on the other side have “wealth and status”, and also provides protection to those “who prosecute the popular and defend the unpopular”.
Ms Brimelow highlighted the “increased association of barristers with clients, already pilloried in press”, describing this as “a dangerous mechanism to heap censure upon barristers who are skilfully and courageously discharging their duties to court and client”.
“Tragically, the UK has not avoided a history where such association has been linked to serious harm, including murder. In our modern online world, death threats and online abuse rapidly multiply. They inflame and burn fiercely.
“Lawyers and commentators from across the political spectrum need to step away from bashing the criminal justice system into a political football. Otherwise, it will roll across the field of gesture politics, lined with lofty declarations, to be kicked by the lynch mobs against barristers.”
One of the declaration’s signatories, Jolyon Maugham KC, founder of the Good Law Project, was on Good Morning Britain yesterday and explained how his objection was that the laws “that permit the destruction of the planet” were wrong.
He went head-to-head with Grace Gwynne, a civil law barrister at No5 Chambers, who insisted that “it is not our job to make a decision about whether a law is just… Where will it end? It’s a very subjective argument and what’s important and what’s just or unjust to one person might be grossly different to the next…
“As barristers, our opinion doesn’t matter. When we go in to represent a client, it doesn’t matter what they’ve been accused of or what they may have been convicted of, they have a right to representation.”
She said the declaration was in breach of the “fundamental principles of a being a barrister, which is to be independent and impartial”, and suggested to Mr Maugham that “this was the wrong career for you”.
Mr Maugham said Ms Wynne had put forward a “very conventional view about what the function of the law is but I think sometimes the law is so unjust that it shouldn’t be upheld by anyone”.
Commenting on Twitter afterwards, Bernard Richmond KC, a criminal defence barrister and the head of Lamb Chambers in London, argued that refusing to defend someone where the barrister believed their defence to be morally wrong “begins the process of people being unrepresented for the most heinous allegations. It is the logical consequence of the ‘refusal’ process”.
He said: “It also explains why many people just aren’t cut out to do criminal work. I find it interesting that I am yet to hear from a serious criminal practitioner who agrees with them.”
Better examples which presented “real issues” included those defence lawyers “who have said that they won’t defend in rape cases”.
Meanwhile, speaking at the Westminster Legal Policy Forum event on ethics yesterday, Ewen Macleod, the BSB’s director of strategy and policy, defended the cab-rank rule.
He said the rule “did not oblige anyone to act unethically” and was a “long-established principle at the Bar”.
It was designed to ensure that everyone could have access to legal advice and was “not just about criminal law”.
He added that if it was decided that “a certain category of persons are not entitled to representation in civil matters”, the government “should legislate to provide consistency”.