Who should barristers be allowed to act for?

A QC who initially planned to lead the prosecution of Hong Kong democracy campaigners has brought an old question back to the forefront

January 20, 2021
Photo: Katie Collins/PA Archive
Photo: Katie Collins/PA Archive

David Perry QC came in for flak from politicians and fellow lawyers before deciding to back out of leading the prosecution by the Hong Kong authorities of pro-democracy activists.

Up to that point, Foreign Secretary Dominic Raab had branded his move “pretty mercenary,” and Shadow Attorney General Charlie Falconer had told me it was “absolutely abhorrent.” Helena Kennedy, the Labour peer and Chairwoman of the International Bar Association’s (IBA) Human Rights Institute, had said his initial decision to provide a “veneer of respectability to a puppet regime” that is acting contrary to democracy and the rule of law was a “source of shame.” All will be relieved at Perry’s rethink.

The case engages vitally important human rights questions. The defendants include barristers Martin Lee QC and Dr Margaret Ng­­—who were awarded the IBA Human Rights Award for their lifelong defence of freedom and the rule of law—and media mogul Jimmy Lai. They are charged with offences including organising and taking part in an “unauthorised assembly” during the 2019 mass protests against increased oppression from Beijing—charges that critics suggest are politically motivated, designed to suppress dissent and limit the freedom of the people of Hong Kong.

But the case also raises legal questions of a different kind. It provides a lens through which to view the old dilemma: who should barristers be able to act for? Why should Perry not have been able to take this case, when barristers act for murderers, rapists, terrorists, despots and others whom many would consider unsavoury? Was this case different? For many experts, the answer is that it was. But why?

The bar, says Kennedy, proudly boasts that it is an independent profession. But she insists: “That does not mean we are hired guns. We have ethical principles which should guide us.” It is a key point. Under their code of conduct, barristers must act with honesty and integrity, and have a duty not behave in a way likely to diminish the trust and confidence which the public places in them or their profession. English barristers, says Falconer, are frequently asked to do things that others might regard as “morally repugnant,” but they do so on the basis that they subscribe to the acceptability of English law and the constitutional premise on which the country is run.

It is certainly the case that barristers will represent unpleasant clients during their careers. In England and Wales, they operate under the “cab rank rule,” which means they must take a case that is within their knowledge and expertise—provided they are available. As John Mortimer’s fictional Horace Rumpole explains: “I’m a black taxi, plying for hire. I’m bound to accept anyone, however repulsive, who waves me down and asks for a lift.” The rule that you must act regardless of your view of the character of the client and their guilt or innocence, says Kirsty Brimelow QC, is there to ensure that no one—even those who have committed the most terrible crimes—is left unrepresented, and to ensure that trials are fair. It is, she says, important that the public understand the rule and do not associate barristers with their clients.

The dinner party question dreaded by all barristers is: “How do you defend someone you know is guilty?” The answer is that if a client tells them they are guilty, they advise them to plead guilty. Where they refuse, the barrister, who has a duty not to mislead the court, can still act for them in a limited way—they can test the prosecution’s case, but cannot positively assert something they know to be false.

Another question is whether there is any moral difference between prosecuting and defending, especially as most prosecutions are brought by the state, which generally has greater resources than the accused. Why should barristers not face similar questions over how they can bring themselves to prosecute those they believe are innocent? Most would argue that the same rules apply whichever side they are instructed by, and stress that prosecutors have a duty to act independently, fairly and impartially, rather than securing a conviction at all cost. But there are some who will not accept instructions to prosecute or act for the state. In any event, says Geoffrey Robertson QC, “prosecuting for an oppressive foreign regime that negatives freedom of speech is quite different” to prosecuting at home—a distinction with obvious force.

While some barristers adhere religiously to the cab rank rule, others suggest it is more honoured in its breach, and there are always ways to get out of a case. There are exceptions to the rule, and a crucial one is that it does not apply to instructions from outside the jurisdiction, meaning barristers are not obliged to accept instructions to act abroad—an exception introduced at the time of the Nuremberg trials, when English barristers were barred from representing Nazi defendants. That remains the only time in the history of the English bar that it has prevented members from defending the accused—a decision that many now regard as wrong.

So what is the right way through? In making the decision on whether to accept cases, Philippe Sands QC, Director of the Centre on International Courts and Tribunals at UCL, says barristers might be guided by whether their engagement reinforces or undermines the rule of law. Where the underlying laws of the country or tribunal are consistent with the rule of law, or the case seeks to further it, he suggests, a barrister could be inclined to accept with a clear conscience. But where they are being asked to do something that manifestly undermines the rule of law—for example to prosecute individuals for actions that are lawful under any reasonable standard of national or international law—they should resist. He adds: “The decision is at the interface between personal morality and professional ethics, and there will be grey areas.”

At this point it pays to consider another historical example: apartheid. Would some English barristers have been prepared to prosecute Nelson Mandela in the infamous Rivonia Trial of 1963-64, for offences of sabotage aimed at overthrowing the apartheid regime? Abhorrent though apartheid was, Sands suggests, it was lawful at the time in South Africa, and not yet explicitly outlawed by international law. And absurd as it seems today, lawyers might have seen it as promoting the rule of law there. Brimelow, however, suggests that prosecuting in that case would have been inconsistent with a barrister’s duty to act in the interests of justice.

“As much as the English bar likes to think that it embodies the principles of the rule of law,” says Robertson, “it has not been uncommon to take lucrative briefs to act for oppressive regimes—helping to hang… democracy activists in Commonwealth countries, for example.”

There is no simple way to stop this happening. Working domestically, Robertson says, all UK barristers are bound by the Human Rights Act, and he would like to see the bar introduce a rule preventing them from acting overseas in cases that would breach or undermine it—such as prosecuting in capital cases or those seeking to limit freedom of speech or assembly. But officials at the Bar Council, the body that represents barristers, suggest his proposal is unnecessary as existing professional duties already cover it, and that it could have the unintended consequence of impeding access to justice in some circumstances.

There is one last point worth making. Criticism of Perry for initially taking the case in Hong Kong is perhaps made harder by the fact that there remain UK judges, including the current President of the Supreme Court, Lord Reed, who controversially are still eligible to sit on Hong Kong’s Court of Final Appeal. Perhaps Perry’s withdrawal will hasten the call from critics for them to quit—unless the former colony kicks them out beforehand, to spare its embarrassment.