Rethinking the Cab Rank Rule
The cab rank rule is something that is often taken as a given by lawyers and legal commentators alike but the changing face of justice means that it is now being questioned more than ever.
The idea is a simple one. In the same way that a taxi driver waiting at a cab rank must take the next passenger regardless of who they are and where they want to go, a barrister must accept instructions regardless of who the client is or the nature of their case.
Is this the correct analogy that we should be using though? Are barristers nothing more than modes of conveyance taking a client through the judicial process? Would an unsuspecting taxi driver be obliged to act as a getaway driver after a heist because of the cab rank rule??
The vast majority of barristers would agree that even the worst criminal deserves competent representation at trial but more and more cases are challenging the core ethical beliefs of Silks.
This discussion comes up once more because of a recent decision by more than 120 lawyers who have signed a ‘Declaration of Conscience’, refusing to prosecute climate protesters or represent new fossil fuel projects.
The move is controversial for a couple of reasons. While the Declaration talks only about protesters who are “exercising their democratic right of peaceful protest”, groups like Extinction Rebellion and Just Stop Oil have caused a great deal of disruption because of their tactics. Many members of the public, alongside members of the government, would like to see these protesters punished to greatest extent of the law.
Furthermore this seems to be a clear breach of the cab rank rule which is not just a principle but is also enshrined in the Bar Standards Board Handbook. Rule c 29 states that a barrister must:
“…accept the instructions addressed specifically to you, irrespective of:
.a the identity of the client;
.b the nature of the case to which the instructions relate;
.c whether the client is paying privately or is publicly funded; and
.d any belief or opinion which you may have formed as to the character, reputation, cause, conduct, guilt or innocence of the client.
This is complemented by rule c28 which tells us:
“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…”
As such the barristers who have signed the declaration could face disciplinary action. The chair of the Bar Council, Nick Vineall KC, has already said that the cab rank rule “promotes access to justice and promotes the rule of law” and that it is “disappointing that some lawyers apparently wish to remove these rights from people of whom they disapprove”.
That disciplinary action will not come as a surprise and some barristers have apparently already self-reported their intentions to the Bar Standards Board ahead of the declaration being officially launched outside of the Royal Courts of Justice this coming Wednesday. The Board will likely have no problem winning the argument but such widespread civil disobedience is unprecedented and will surely prompt a rethink of the rules as they currently exist.
The barristers involved are also high profile figures and that will also help the campaign. Michael Mansfield KC is probably one of the most famous living Silks in the country while Sir Geoffrey Bindman KC is the chair of the British Institute of Human Rights. One of the other signatories, Paul Powlesand, was featured in this newsletter a few weeks ago after he climbed a tree in order to prevent historic trees being felled. Tim Crosland is the director of Plan B (the group who organised the declaration) and was, in fact, disbarred after disclosing a draft judgment of the Supreme Court relating to Friends of the Earth.
The former Solicitor General, Robert Buckland, has said that the move “undermines the independence of the legal profession” but the time might have come for a distinction to be made between ‘independence’ and blind adherence to a rule that deprives lawyers of agency.
The cab rank rule is a core aspect of the rule of law and promotes a fair justice system in this country but lawyers are not automatons who perform their tasks in a mindless fashion. They have their own ethical beliefs and, at a time when the climate crisis and other moral issues weigh heavily, perhaps the cab rank rule should reflect that.
This week in the podcast we think about decisions relating to national security and public safety. Normally those decisions can be taken by government departments like the Home Office but should security concerns allow the Secretary of State to override a statutory duty? This was at the heart of the debate before the Supreme Court.
Episode link: https://uklawweekly.com/2023-uksc-10/
Make a difference today,
Marcus