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13 July, 2008  
The cab rank rule is rank all right

Providing cover for the “dirty” cases … Tulkinghorn teases apart the fiction of one of the bar’s prized ethical flourishes – the “cab rank” rule. Isn’t it about time it was scrapped?

imageAs noted in The Times in May:

“The standard dinner party question for barristers is: how can you act for someone you know or suspect must be guilty?”

Stanford Law Professor Barbara Babcock in “Defending the Guilty” [32 Cleveland State Law Review 175 (1983-84)] lists some professionally correct replies. For example:

  • The “garbage collector’s reason” (it is dirty work but someone has to do it);
  • The “legalistic or positivist reason” (truth cannot be known, guilt is a legal conclusion);
  • The “political activist’s reason” (most who commit crime have themselves suffered injustice and oppression);
  • The “egotist’s reason” (criminal defence work is more interesting, challenging, and rewarding than other legal work).

    The Times article says …

    “Another answer is the cab-rank principle. This means that a Jewish barrister would act for someone accused of war crimes, an ardent feminist for a serial rapist or a black barrister for a member of the BNP. That does happen.”

    Yes, rarely, it does, but usually for reasons of money and publicity, and not the cab rank principle.

    In 1982 the NSW Law Reform Commission said:

    “The interpretation of the duty and its exceptions has become highly subjective and there is, in reality, ample opportunity for any barrister to refuse any brief offered.”

    The commission also said:

    “The main practical effect of the [cab rank] rule in New South Wales is not that it forces reluctant barristers into accepting unpopular cases, but rather that it reduces criticism of barristers who do take such cases.”

    Barristers who take on “dirty” cases, where the defendant is obviously guilty, and then proceed to engage in every dishonest tactic known to the legal fraternity to get the defendant off, deserve to be condemned.

    imageIt is those sorts of barristers who want a “cab rank rule”. It enables them to lie: “I tried to get that obviously guilty person off, because I had to.” Not only that, but “I had to play dirty”.

    As the 19th century English historian Thomas Babington Macaulay (seen here) said, legal ethics require of a lawyer that …

    “Knowing a statement to be true, [s]he should do all that can be done by sophistry, by rhetoric, by solemn asseveration, by indignant exclamation, by gesture, by play of features, by terrifying one honest witness, by perplexing another, to cause a jury to think that statement false.”

    Decent barristers (which actually means most of them) soon refuse to get involved in dirty stuff.

    In a feature headlined “The outsider”, published in The Age, in January we are told how Melbourne barrister Peter Faris QC …

    “defended a man in the late 1970s who was accused of raping a 16-year-old virgin. Faris, who has written about the case on his blog, explains that after destroying the girl during cross-examination, the courtroom door had not quite shut behind her when she gave a howl, ‘like a mortally wounded animal’. It stays with him still. ‘I felt bitterly sorry for that girl and what I’d done to her. I haven’t done a rape case since’.”

    imageLawyer Geoffrey Robertson’s book The Tyrannicide Brief (Vintage Books 2006, paperback) is largely about John Cooke, the lawyer who prosecuted King Charles I in 1649.

    Charles lost his head, but the monarchy was restored in 1660. John Cooke was then given a rigged trial and a horrible death.

    The blurb on the back of Robertson’s (pic) book says Cooke, “originated the right to silence, the ‘cab rank’ rule of advocacy and the duty to act free-of-charge for the poor”.

    All of that is highly debatable. In particular, Cooke took on the prosecution because he wanted to, not because of any theory that he had to.

    Justice Kirby of the High Court said in August 2005:

    “Geoffrey Robertson portrays [Cooke’s case] as the first case of a barrister acting for clients, whatever his private beliefs or wishes. This is a dubious claim. For Cooke this was a famous brief. The parliamentary forces were dominant. The prospects of royal restoration were tiny. The risks were tolerably small. And God had told him to do the job.”

    imageAccording to Robertson:

    “Centuries later, two more celebrated (and better connected) lawyers [Erskine and Brougham] were to dress the [cab rank] argument in finer language, and win the profession’s accolade for originating the ‘cab rank’ rule. Lord Erskine (seen here), who accepted the brief to defend Tom Paine for writing The Rights of Man, said ‘the liberties of England are at an end’ if barristers could he permitted to refuse an unpopular brief. All that Erskine lost was his retainer to advise the Prince of Wales. His famous speech is never published in full because it is an epic of self-adulation, in which the barrister boasts so much about his own own virtue that he omits to offer any defence of Tom Paine, who had the foresight to flee to France.”

    Erskine has been described by former Victorian chief justice John Phillips as having thus fearlessly faced down the King to defend someone whose cause he did not support.

    That latter bit is hardly to the credit of Erskine, and actually by 1791, Erskine was the highest paid counsel in the history of the English bar, and was back in favour with the King.

    One doubts whether he got there by spending a lot of time helping the poor and oppressed. As for Brougham’s efforts, Robertson says he was …

    “appearing without any danger to himself in a case that could only advance his political career.”

    The effect of the cab rank rule is that barristers must act for rich guilty people, but they don’t have to act for poor innocent ones.

    In NSW, Rule 85 of the barristers’ rules says:

    “A barrister must accept a brief … if … (c) the fee offered on the brief is acceptable to the barrister.

    This huge loophole is followed by a sub-loophole. Rule 91(c ) says that even if the fee offered is “acceptable”, a barrister can refuse a brief if:

    “the barrister has reasonable grounds to doubt that the fee will be paid reasonably promptly.”

    imageIn 1999, Lord Irvine (pic, then Lord Chancellor) said:

    “The ‘cab rank’ rule is one of the glories of the bar.”

    The cab rank rule on its own has never achieved anything except to provide an “excuse” to “bad” barristers.

    I would suggest that its name be shortened to “the rank rule”.

    It smells more like poo than perfume but, like dogs, “bad” barristers find that rolling in it serves their own purposes rather well.


Reader Comments

Posted by: David Bennett QC
Date: July 14, 2008, 1:12 am

I don't think I have ever disagreed more strongly with something you have printed. David Bennett
Posted by: Terry Forrest
Date: July 14, 2008, 2:29 am

So the clean and decent amongst us should avoid appearing for the dirty and guilty at all costs.I am amazed that you have published this cynical garbage.
Posted by: Anonymous
Date: July 14, 2008, 3:00 am

I, on the other hand, agree with the article completely. We should most CERTAINLY leave the unpopular defendant without representation. It would make life far easier for the Crown, particularly in those pesky sexual assault trials that are (for whatever inscrutible reason) unpopular amongst the selfish bar. Those who are accused of sexual assault have no need of representation and should be thrown to the wolves, along with accused terrorists, paedophiles, and any person insolent enough to have too much property to qualify for Legal Aid. Perhaps we should consider abolishing Legal Aid entirely, except for palatable cases? Any suggestion that the profession has a responsibility to see that justice been seen to be done is utter piffle.
Posted by: Anonymous
Date: July 14, 2008, 6:00 am

In the US there is no cab rank rule hypocrisy. Is anyone suggesting that unpopular defendants fare worse in the US than in the UK because of the absence of a cab rank rule in the US? (Legal aid/public defender issues are something else, again) A distinguished US lawyer, incidentally, can be seen on Youtube saying (as I understand him) that an ethical lawyer represents people he wants to and not everybody who comes to his door. Unfortunately the interview is the last of three in the video (which downloads slowly) but it is worth waiting for
Posted by: Anonymous
Date: July 16, 2008, 5:54 pm

A Canadian feminist law firm has today (14 July) gone public with its policy on not accepting violent male clients.
Posted by: Anonymous
Date: July 16, 2008, 11:54 pm

There are two kinds of cases which immediately come to mind as being affected by the rule; media cases and disputes with banks. Yes the rule is imperfect. yes there are many barristers who in fact breach the rule, constantly. However the rule does to a significant extent operate to enable barristers to remain available to act for individuals against institutions who work very hard at tying up the large firms of solicitors so that none may act against them. As things stand, individuals can retain a small and often outgunned firm of solicitors, with an expert barrister in a specialised area who can even things out a bit.If the cabrank rule was abolished, those barristers would quickly become tied up too.
Posted by: Anonymous
Date: July 17, 2008, 8:55 am

I agree that banks in particular are such good clients to have that law firms (especially big ones) never do anything to upset them ( like suing any of them) A newly published article (16 July) points out that in the US big law firms have always operated on the principle ÔDonŐt sue banks'. Of course, the large law firms are only too happy to be 'bought' although as the banking crisis develops and transactional work drops off they are apparently beginning to redo their sums. I am sure barristers do their sums too : how much is it likely to cost me in lost future work if I act against this bank? If the answer is 'lots', then I doubt whether the cab rank rule will cause a barrister to take on the case anyway.
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