Carr: Judges and advocates need moral courage
The Lady Chief Justice yesterday spoke out in support of the cab-rank rule, arguing that without it “law and justice become an arbitrary concept”.
Baroness Carr also called for a significant increase in the study and scrutiny of the criminal courts to provide the basis for further reform.
The cab-rank rule came under scrutiny last year when barrister signatories to the Declaration of Conscience, drafted by the climate change campaign group Lawyers Are Responsible, committed not to prosecute [1] climate protestors or work for fossil fuel companies.
They self-reported themselves to the Bar Standards Board, which declined to consider taking action [2] until they had actually declined instructions.
The Bar Council spoke out strongly in favour of the rule and also last year hit out at Legal Services Board comments [3] that it seemed “relatively straightforward” for barristers to avoid the rule by relying on exemptions.
Delivering the annual Kalisher Lecture last night – the Kalisher Trust [4] supports young people to pursue a career at the criminal Bar – Baroness Carr highlighted the need for judges to show “moral courage” and how that was developed in their careers before appointment.
“Whether it is facing a difficult cross-examination, representing an unpalatable client irrespective of their personal views, the offence with which they are charged or a cause or organisation that they represent, courage is required,” she said.
“It equally takes moral courage to intervene when a judge or magistrate may have overstepped the mark and turned a challenging tribunal into an improperly hostile one. It is, I am happy to say, a key feature of the Bar and particularly the criminal Bar.”
Without advocates who were willing and able to act in all cases, for both prosecution and all defendants, “we would not have a criminal justice system that was worthy of the name”.
But, Baroness Carr continued, moral courage also had a limiting role to play. “It lies behind the fact that judges and magistrates must set aside their own social, religious or political views in trying cases. It lies behind the cab rank rule, which requires advocates to take instructions no matter what their views of their client may be.
“As judges we adjudicate according to the law. As advocates, you must ensure that everyone has access to justice according to the law. If advocates do not, and they pick and choose their clients are by reference to their own social, religious or political views, then law and justice become an arbitrary concept.”
On criminal justice reform, Baroness Carr stressed the importance of the need for a proper evidence base, backed by empirical examination.
“We need more studies. More testing. More scrutiny. We need different approaches. More methodologies. More research and a wider range of researchers testing and challenging our systems…
“We cannot rest on the approach that opens up our system to scrutiny by a limited number of researchers. We need a plurality.”
Scrutiny of criminal juries, in particular, would, “I have no doubt, demonstrate the robustness of the criminal jury trial” but also “enable us to learn how we can improve jury decision-making”.
She added that, by empirical study, she did not mean conducting experiments similar Channel Four’s recent staging of a genuine murder trial, The Jury: Murder Trial.
“Interesting television as it might have been, it is difficult to see what exactly it could tell us about how a genuine jury approaches the criminal process.”