Tuesday, 29 January 2013

Gloves off at the Cab Rank

Professors John Flood and Martin Hviid's report for the Legal Services Board (which I commented on in my last post), appears to have set pulses racing amongst interested academics and, not unsurprisingly, barristers, with some heated electronic exchanges over the relevance and future of the Cab Rank Rule (and more than a little mud-slinging).

Most notable is the vitriolic response of Michael Turner QC, Chairman of the Criminal Bar Association (which can be read here). Describing the LSB as 'a politically motivated body whose mission is the wholesale destruction of the publically funded criminal Bar', he suggested that the report recommended the 'abolition' of the Cab Rank Rule and summarised it as a 'crassly ignorant analysis' based on 'fundamental misunderstanding'.

The response is characterised by a clear emotional attachment to the subject, evident in language including, 'it makes one shudder', 'how dare they', and 'read it and weep'. Although the passion is admirable (emotional committment isn't inherently bad), it would be fair to say that a response anchored in emotion is likely to lack some perspective and balance.

Professor John Flood, who co-authored the report, responded in kind here, posting a couple of images mocking Michael Turner's comments. A post further down the page suggests he clearly expected a backlash. Although his point about 'emotional' ranting is reasonably accurate, his willingness to stoke the fire seems unfortunate. It strengthens the barrier between a profession which values this long-standing principle and an academic community that should be soberly examining its worth. It would be better for the two to work together to improve the mechanism of the rule.

The report did indeed contain some provocative conclusions couched in less than neutral language (see my earlier blog post); it is thus unsurprising to witness the resulting extremes of opinion, some examples of which were aired in the comments section of this Law Gazette article about the report. Of the various immoderate phrases employed, highlights include 'the latest idiocy', 'this silly rule', 'sacred cow', 'half-educated half-wits who become professors', and 'total ignorance on the LSB's part'. It is perhaps ironic that the Cab Rank Rule - underpinned by the concept of amoral detachment and objectivity - is being debated in such a 'right brain' manner. 

Two posts appear to me to be the most sensible on the topic. Richard Moorhead wisely points out in his blog that a 'bar room brawl' over the rule is both unproductive and pointless, and that several extreme and 'conspiratorial' conclusions have been leapt to. Lucy Reed, family barrister and Pink Tape blogger, provides one of the most balanced analyses available, accepting where she lacks expertise or evidence, but equally not deigning to pull her punches. 

She describes the report as 'a literature review . . . a literature review of scant literature . . . with a smattering of interviews thrown in for good measure.' She rightly concedes that the report has 'some well made points'; but she has the same reservation about the report as I do - primarily the 'tone' of the report based on the evidence available. It is overly negative, too conclusive, and it is, in a way, sneering about the Bar's committment to a complex but admirable principle. 

Among her various points, Lucy also criticises the report's argument about 'notorious' clients being attractive and I agree, but for slightly different reasons which I will deviate into (briefly). The authors of the report (and a number of commentators) have perhaps missed the point of the Cab Rank Rule in the context of 'horrible' but high profile clients. The rule is designed to ensure that 'unattractive' clients get represented; this often means the nasty, cruel, sadistic or perverse, but most people in this category do not make it into the papers.

The very, very worst are infamous. If one accepts the perhaps cynical premise that infamy is attractive for barristers because of the boost to business, the challenge, the ego trip, etc. (which undoubtedly it is for some), then the very, very worst might not struggle for representation. Those protected by the rule are the low profile clients, not renowned on a grand scale for their crimes but still maligned to varying degrees for various reasons. Luckily, not every defendant will be an Ian Huntley or Harold Shipman - the vast majority will (for want of a better term) be your 'average' deviant, and the Cab Rank Rule acts as a measure of protection for them where the lure of the spotlight (for some barristers anyway) is absent.

It is hard to say what the result of abolishing the Car Rank 'rule' would be; it might lead to a disastrous antipathy towards helping undesirable characters drawn into the legal system. It might continue to pervade practice as a guiding principle. It might have no noticeable effect at all. Either way, it is right that the report should raise questions about a professional rule that does not appear to be enforced in any clear and transparent way and which has little statistical profile. However, to become ideological and over-zealous (how appropriate) about abolishing or preserving the concept out of sentiment or scorn is ultimately unhelpful.

The Cab Rank rule is a very old principle, grounded in valuable moral ideals of equality and access to justice, nurtured by the liberal traditions of modern democracy and the rule of law. Whether these abstract notions translate into true relevance and workability in the reality of practice is an important question, which the report raises. The report is, however, over-conclusive and does undermine the integrity of the rule in a way which could have been avoided. The most important conclusion to draw from this report is that much more detailed, balanced, and objective debate and research is necessary - both theoretical and empirical - asking why we have the rule and what it means it for the Bar, the client, and the justice system in the 21st Century. And it needs to be free from bickering and politicking.

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