How could someone ever defend them?

Article written by Sofia S. Gagliardi

In recent events involving oligarchs, Just Stop Oil protestors and police officers being charged with criminal offences, people have begun to seriously question lawyers’ ability to represent said individuals. Whilst it may be controversial, barristers recognise the importance of guaranteeing representation for all individuals facing proceedings. England
and Wales utilise The Cab Rank Rule (the Rule), where a barrister must accept instructions on a case if they are available, regardless of their personal beliefs. The Bar Council recently reiterated that the Rule remains the pillar in both equal access to justice and the independence of the Bar. But why is that so important?

Firstly, access to justice is a fundamental principle that guarantees the availability of legal representation regardless of one’s financial means. Whilst it is no secret that publicly funded cases are not well remunerated, the Rule safeguards the principle that every individual is entitled to competent legal representation. The financial sacrifice should be ‘celebrated as promoting access to justice’ (P. O’Connor KC). Without the Rule, there is a real risk that individuals would remain without representation and have no equality of arms in proceedings.

Secondly, the Rule guarantees barristers remain independent officers of the court. They are not to judge those accused of a crime. Rather, it is up to a jury, lay panel or judge to make these decisions. The Rule ensures that legal representation is not contingent on the barrister’s personal beliefs or prejudices. Further, the Rule grants barristers a form of immunity that enables them to represent odious clients and act in their professional duty.

The Rule came under fire in recent cases where a handful of barristers refused to represent climate change protesters or defend controversial oligarchs. Perhaps there is an argument for having a narrow exception category for ‘conscientious objections’ where there is a genuine issue that undermines a barrister’s ability to perform their role. An example would be a barrister who is a victim of rape and is forced to re-live this trauma through their work. Under the exception, there is a right to conscientiously refuse this type of work because of the barrister’s inability to perform in the client’s best interests.

A cross-jurisdiction comparison with the US is compelling evidence of the continuous need for the Rule in England and Wales. In the US, the onus of granting legal representation to unpopular clients falls on the individual lawyer’s goodwill and professional conscience. It jeopardises the client’s need to obtain legal representation.

The Cab Rank Rule stands as a beacon that protects and preserves the principles of justice and equality and remains essential to guarantee a fair justice system.