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The ‘cab-rank’ rule — an ethical conundrum

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Aspiring barrister Benjamin Ramsey explores the recent events involving Dinah Rose QC and David Perry QC

In recent weeks, the ethical conundrum of whether or not a barrister should take on a case has been thrust back into the spotlight.

Two of England’s top QC’s, Dinah Rose and David Perry, have been criticised for accepting instructions to act in cases in which the parties they represent have questionable beliefs and practices. This article seeks to demonstrate the legal and ethical framework that surrounds the decision whether or not to accept a case, whether a barrister has any say in the matter and whether Rose QC and Perry QC were right to do so.

Dinah Rose QC

The Cayman Islands government first instructed Rose QC in 2019. Two women, Chantelle Day and Vickie Bodden Bush challenged Section 14(1) of the Cayman Islands constitution which states:

(1) Government shall respect the right of every unmarried man and woman of marriageable age (as determined by law) freely to marry a person of the opposite sex and found a family.

Ms Day and Ms Bush sought a marriage licence under the protection of Section 14(1). Ultimately, the Island’s Court of Appeal dismissed their challenge. However, the court held that same-sex couples were entitled to the same legal protections as marriage, with civil partnership legislation being brought in soon after.

On 23 February, the case will return to the Court of Appeal in a hearing before the Judicial Committee of the Privy Council. The central question the court will consider is:

(1) Does the Bill of Rights in the Constitution of the Cayman Islands require that the marriagelaw of the Cayman Islands be interpreted so as to define “marriage” to include the union of same-sex couples?

Some commentators have stated that in accepting the instructions to represent the Cayman Islands, Rose is “prosecut[ing] a homophobic case to deny LGBTIQ persons in the Cayman Islands equal rights”. Due to the questionable beliefs on the part of the government, they say Rose should withdraw from the case as the ‘cab-rank’ rule does not apply.

The ‘cab-rank’ rule

The rule is named after the concept that a taxi driver, waiting in a cab-rank, must take the next passenger he gets, regardless of who he/she is and where they want to go. The rule applies to barristers and is a professional obligation to accept instructions from every client regardless of their view of the case or the personal views of the client.

The bar’s cab-rank rule is located in rule C29 of the current Bar Standards Board handbook (BSB). C29 states:

If you receive instructions from a professional client, and you are:

.1 a self-employed barrister instructed by a professional client…
…and the instructions are appropriate taking into account the experience, seniority and/or field of practice of yourself … you must, subject to rule rC30 below, 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.

There are, however, several exceptions to this rule which are found in C30. The most relevant to Rose’s case are:

The cab rank rule rC29 does not apply if…

.5 accepting the instructions would require you to do any foreign work; or

.6 accepting the instructions would require you to act for a foreign lawyer…

‘Foreign work’ is described as providing legal services “relating to… court… proceedings taking place… outside England and Wales”. The Cayman Islands are a British Overseas Territory. Also, the Judicial Committee of the Privy Council is based in London and falls under the jurisdiction of English law. Therefore, Rose’s instruction does not require her to undertake ‘foreign work’, having been instructed on several occasions to appear before the committee previously.

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The second exception of acting as a ‘foreign lawyer’ is more troublesome. If Rose is acting for the Attorney General of the Cayman Island directly, then Rose would be acting as a ‘foreign lawyer’. However, if Rose has been instructed by English solicitors, then the exception would not apply and Rose would be obligated to accept the instructions. Truthfully, we do not know the answer.

In any event, the principle of providing legal services, provided the barrister is available and the case is within their knowledge and expertise, goes far beyond the ‘cab-rank’ rule. The need for a barrister to be independent and not discriminate is woven into the BSB handbook. Within the handbook ten core duties underpin the ethical framework and set the standards by which all barristers operate. Of these ten, core duty 4: You must maintain independence and core duty 8: You must not discriminate unlawfully against any person, are the most applicable to this situation. Also, rule C28 is the ‘requirement not to discriminate’:

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…

Even if Rose was acting as a foreign lawyer and, therefore, not bound by the cab-rank rule, there is a potential risk she could fall foul of C28 those core duties. Some may argue Rose could be giving in to external external pressure and withholding her services due to the so-called ‘homophobic case’ of the Cayman Island government. It could also be viewed as potentially discriminating against a client due to its stance in the case and be letting the opinions of others sway her decision making. These, in turn, could compromise her independence.

David Perry QC

Rose’s case can be contrasted with the recent controversies surrounding David Perry QC. Perry accepted instructions to prosecute pro-democracy protesters in Hong Kong. One of the defendants in the case is Martin Lee QC, the founder of the pro-democracy party in Hong Kong, having been accused of taking part in ‘illegal assembly’. In contrast to Rose’s case, the ‘cab-rank’ rule does not apply here. Having been instructed by the Hong Kong Justice Department, this is clearly ‘foreign work’, thus falls under the exceptions to the rule in C30. While Perry has undertaken several cases in Hong Kong previously, he is not a member of the Hong Kong bar, so the ‘cab-rank’ rule does not apply.

Interestingly, where Rose was steadfast in her position to remain instructed, Perry has now withdrawn from the case, following similar criticism. It is arguable that, by withdrawing, Perry has withheld his services on the ground that the conduct, opinion or beliefs of the government are unacceptable to a section of the public, hence the criticism. Therefore he may have breached rule C28, the requirement not to discriminate. However, there are also other core duties which state all barristers must act with honesty and integrity and must not behave in a way that that is likely to diminish the trust and confidence the public places in the profession. Acting for the Chinese government, in this case, could be contrary to those core duties. The rules within the handbook, therefore, appear to be at odds with each other.

The guidance note for C28, gC88, has the answer. It states:

‘…This rule of conduct is concerned with a broader obligation not to withhold your services on grounds that are inherently inconsistent with your role in upholding access to justice and the rule of law and therefore in this rule “discriminate” is used in this broader sense.’

Therefore, a barrister can withhold their services and not breach C28 if, by doing so, they are upholding access to justice and the rule of law. Arguably, the Chinese government’s prosecution of individuals for actions that are lawful under any reasonable standard of international or national law manifestly undermines the rule of law and, therefore, the core duties referred to above.

Conversely, if a decision was made that arguing the Chinese government’s point of view would undermine the rule of law, then would that have an impact on access to, and the administration of, justice? Lawyers should not be identified with the views of their clients. Everyone has a right to representation, by limiting those options and withholding services, that could arguably be restricting access to justice and could still be a breach of C28.

While many barristers do things that lay people find to be morally repugnant, such as represent rapists, murderers or terrorists, they do so because they believe in the English legal system and the constitutional principles on which it is run. When you remove that belief and the certainty of the ‘cab-rank’ rule, and you are faced with a choice of whether to represent a client, who a reasonable person may say has questionable views and practices, do the rules and duties just become guidelines to be weighed against each other to find the most ethical path? In those limited circumstances, that appears to be the case.

It is difficult to criticise either Rose and Perry for taking their respective cases, when many UK judges are still eligible to sit in the Hong Kong Court of Appeal, and regularly do so. This list includes the current President of the Supreme Court, Lord Reed.

Conclusion

It is apparent that the cab-rank rule is a vital cog in the administration of justice, but it must be read alongside barristers’ other ethical rules and duties. If the ‘cab-rank’ rule does not apply, then a barrister does not have to accept the instructions. However, all barristers must weigh up other ethical considerations before accepting or declining new instructions. Failure to accept may mean that you are unlawfully discriminating against the prospective client and limiting access to justice. Nevertheless, accepting instructions in some cases, may undermine the rule of law and breach further ethical duties.

Benjamin Ramsey is a first class law graduate from Northumbria University. He completed the BPTC as part of his degree and was called to the bar in 2018. He currently works as a county court advocate for LPC Law, and is actively seeking pupillage.

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24 Comments

Sally

It seems so strange that some people and some laws do not hold the gays as having equal rights to the straights. This is 2021 for goodness sake. It makes my blood boil.

Sam (he/him)

The sentiment is there at least. Maybe.

tired old hack

Great article, thank you. I think I’ll print it out 100 times and just hand it out when I’m asked by civilians to explain the rule.

Edward

You could’ve at least tried to give some constructive criticism or say nothing.

Keyboard warrior.

Alan Robertshaw

That’s a really excellent summary of the issues.

One minor point re content; and you’ve implicitly covered this with the reference to ‘professional client’; but just for clarity; we’re not bound by cab-rank when we do direct public access scheme work.

Anon

Well written article.

However, can I just add my practical experience. My worst experiences as a barrister come from representing awful, morally reprehensible causes in court. For example, propping up old discriminatory systems and practices, representing absolute a-holes for whom money matters more than others’ dignity. You get the picture.

Some of these experiences fill me with regret many years on. I wish I’d never been put in those positions.

While at the time I dutifully followed the cab rank rule as every well behaved barrister does, they have changed my approach. Since then, I’ve been a lot more willing to make up rubbish excuses for why I’m not available so I don’t have to represent awful causes.

Before anyone criticises me for that, my past experience has taught me this is the correct approach for my mental health and self-esteem.

Alan

Correct approach for your mental health and your self-esteem.

Nice of you to put your own interests ahead of those of your client.

Clapham Omnibus

If Anon isn’t accepting instructions then that’s not their client…

Alan

your prospective client*

Wokey Blokey of Counse

Can we please have a list of
Woke causes that we are allowed to act for and a list of non-Woke causes that we are allowed to refuse because they’re not Woke?

Fliffalaier

The transhumanitarian flexiresponsible group of non-binary cluedoas.

Elon Bust

Really good article, enjoy it.

Leo

The Judicial Committee of the Privy Council is not a court of law, technically. Even if we were, for the sake of argument, to accept that it is, then the fact that such court is ‘sitting’ in London is irrelevant: the Judicial Committee of the Privy Council can sit anywhere it wishes to sit or it is invited to sit. In 2009 it sat in the Bahamas and heard cases for the Bahamas and the Turks and Caicos. It is not an English court, it doesn’t fall under the jurisdiction of the English law (quite the contrary case law precedents of the U.K. Supreme Court, on points of English law, for example, are not binding on the Judicial Committee of the Privy Council). Dinah Rose QC is conducting ‘foreign work’ and is acting for a foreign lawyer.

Dinah Rose QC was, hence, absolutely not bound by the “cab-rank” rule. She needs to assume personal responsibility for taking the brief and people need to forget about whether or not any rule forced her to.

Leo

Dinah Rose QC took the brief on appeal from the Cayman Islands Grand Court to the Cayman Islands Court of Appeal. In order for her to appear before the Cayman Islands Court of Appeal she had to be called to the Cayman Islands Bar. That is what happened, she was undertaking foreign work in a matter of foreign law. Additionally, Dinah Rose QC was instructed by the Cayman Islands Attorney General’s Chambers (hence instructed by a foreign lawyer) . Now the matter is before the final court of appeal of the Cayman Islands, which happens to be sitting circumstantially in London, but other than the geographical location of where the Privy Council is on this occasion sitting, the rest of the facts remain unaltered: she is undertaking foreign work on a point of foreign law and instructed by a foreign lawyer!

Anonymous

The cab rank has no application to either these cases. That is absolutely clear.

Along the High Street

Rose can take on the cases she wants. But it would seem very hard to take on these sorts of causes, voluntarily and without any professional obligation to argue them, and maintain her position at Magdalen. If it were a cab rank case, the position would be different, but advocating against equality for personal gain is not exactly what one would expect from a head of a place of learning.

Leo

Along the High Street: I am an old member of University College, Oxford and I agree with you wholeheartedly. As a professional I can see that it is commendable that she feels it is incumbent upon her to take any case that comes her way, but to fend off criticism behind a rule that simply does not apply is, in my view, despicable. Dinah Rose QC is, without doubt, harming students at Magdalen College and the wider community, by effect of her personal choice while still maintaining her role as President of Magdalen. It is a disgrace that she does not realise the harm she is causing to young people whose wellbeing and trust has been placed into her hands.

Anon

You missed the actual point about why Dinah Rose QC continued to represent her client and David Perry QC did not. Rose is due to attend the hearing of the appeal in the case next month. Perry had only accepted the instructions. For Rose to pull out it would have been an issue of professional misconduct and set her clients back huge sums of money and time. Perry can tell just tell his client to find another lawyer. Also, I think you’ve read gc88 wrong. I don’t blame you, it’s written in a confusing manner. It says that a barrister cannot withhold services on grounds the case is incompatible with access to justice or rule of law. I can’t imagine the draftsman meant your interpretation. There are few situations in which a barrister refusing work is compatible with access to justice.

Leo

Dinah Rose QC should be mature enough to confess to having accepted the brief due to her own personal decision, rather than standing behind a rule that does not in any event apply. However, I do not think anyone should be asking her to withdraw from the case unless there are grounds to do so (e.g. being “embarrassed” by her client). Instead, the Oxford community and wider academic community should be seeking her resignation as President of Magdalen. It is untenable to hold that role as President while at the same time making a personal choice to assist a government in perpetuating discrimination against LGBT people for her own personal gain. Let’s ask the rhetorical question: would we accept Dinah Rose QC being President of Magdalen if she were defending the constitutionality of a prohibition of interracial marriage? Is that form of discrimination somehow less palatable than same-sex marriage?

Anon

All barristers choose their cases insofar as no matter what the cab rank rule says, you don’t employ a pro-life advocate to represent a pro-abortion case. Also, may I remind you, Dinah Rose QC is a barrister not a campaigner. Campaigners hold rallies. Barrister’s make submissions. The case Rose is involved in is a constitutional case, it is not about criminalising or preventing same-sex marriage. It is simply about whether the constitution of the Cayman Islands is obliged to recognise same-sex marriage or whether the same is a political issue. A decision will be made on the meaning of the constitution. It is not a referendum on same-sex marriage. The decision made by the Judges or politically is not Rose’s remit. Rose’s remit is simply to make submissions.

Let me ask you a question: do you think in a democratic society governed by the rule of law, individuals should be punished or cancelled for simply making an argument?

Leo

With respect, you are not addressing the point. I agree with much of what you have said. If you read carefully what I have written, however, you will see that I stated it is commendable that Dinah Rose QC felt compelled to take the case. I do not object at all in that regard. The issue here is this: Dinah Rose QC when making a public statement as President of Magdalen, said that she was bound to take the brief and that the “cab-rank” rule applied. That was, quite simply, wrong. It is a very serious matter for a barrister of such standing (or indeed any barrister for that matter) to mislead the public. The Times and other press have reported on the applicability of the “cab-rank” rule as a defence argument for taking this case. Dinah Rose QC or her Chambers have a duty to correct this mistake or else risk losing public trust in the profession. Ultimately, it will be a matter for the BSB to address it seems.

As regards what this case is about, yes, you are absolutely correct again: it is purely a constitutional matter. The Cayman Islands government (like the Bermudian government) is seeking that its constitution be read in a manner that authorises it to segregate persons on the basis of sexual orientation. This is no different to what the white supremacists (otherwise known as the KKK) sought and achieved at the Supreme Court of the United States in 1896, in the Ferguson case. The only difference there was that it was segregation on the grounds of race rather than sexual orientation.

Taking the Cayman Islands case when not bound to do so raises inevitable (and reasonable) questions as to the compatibility of being a barrister in this case and holding the position of President of Magdalen. Moreover, it is highly concerning that in order to fend off criticism Dinah Rose QC invoked a rule that did not apply. How can Dinah Rose QC, in good conscience, reconcile all this and her personal decision to take the case with her pastoral duty of care towards LGBTI students at the college. What would Dinah Rose QC say to a Caymanian student at the college struggling with their sexual orientation or gender identity? Or, more correctly, what would such a Caymanian student at the college be made to feel by virtue of her actions?

So, to sum up, the point here is not that Dinah Rose QC should be chastised for taking the lucrative case, but rather whether it is acceptable for her to defend doing so by invoking a rule that did not apply in the circumstances and whether it is tenable to concurrently retain her role as President of Magdalen.

Anon

First, you misunderstand how the cab rank rule applies to Dinah Rose QC. The cab rank rule is merely an expression of the broader principle that a barrister who is competent to take a case and is free to do so, cannot discriminate against taking that case on the basis of the subject matter. Dinah Rose QC is not a pupil at a small chambers. There are few people competent to take on the case and she is one of them. For her to refuse is asking her to discriminate on the subject matter.

Second, your argument comes down to this.

“What would Dinah Rose QC say to a Caymanian student at the college struggling with their sexual orientation or gender identity? Or, more correctly, what would such a Caymanian student at the college be made to feel by virtue of her actions?”

You want to remove Dinah Rose QC as president because of how a hypothetical LGBT Caymanian student of the College may or may not feel?

I would be more inclined to accept your position if you could show any evidence of actual harm caused to students or any way in which by Rose taking on the case cannot still perform her duties to the standard expected of her.

You may be in some difficulty as I understand the Magdalen students voted by a majority to affirm their support for Rose.

Richard

“Also, the Judicial Committee of the Privy Council is based in London and falls under the jurisdiction of English law.” Could not be further from the truth. As held in Willers v Joyce & anr [2016] UKSC 43, the Privy Council “is not a court of any part of the United Kingdom.” The Privy Council could, for instance, be sitting in the Cayman Islands as it sat in Bahamas in 2009 when it heard appeals from the Bahamas and Turks and Caicos.

Leo

Message in response to Anon, on Feb 20, 2021 at 9:11pm:

You don’t seem to understand that there is a fundamental difference between a rule and a principle. The “cab-rank” *rule* does not apply to the Cayman Islands government brief that Dinah Rose QC decided to take on: end of story!

As regards to the second point, has anyone asked the LGBT students at Magdalen, specifically (to be clear, I’m not talking about the broader JCR, but rather the LGBT students only), as to how they feel having Dinah Rose QC continue as President. Do those students feel there is an irreconcilable conflict of interest between the post of President of Magdalen (and chief enforcer of its equality policy) with her role as leading counsel for a homophobic state? Do you think we would be having this discussion, or would she have been required to step away from her role as President in those circumstances?

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