Lawyers can refuse to prosecute eco-activists amid climate concerns

April 26, 2023

Lawyers can refuse to prosecute eco-activists amid climate change concerns, according to professional standards bodies

170 lawyers signed declaration stating they won’t prosecute climate protestors
Group ‘Lawyers Are Responsible’ widely criticised for breaking ‘cab-rank rule’

Lawyers may not be penalised if they refuse to prosecute climate protesters, their professional standards bodies have suggested.

Some 170 barristers and solicitors signed a ‘declaration of conscience’ last month, stating that they will not prosecute eco-activists who block roads, vandalise buildings or act for oil and gas companies.

Just Stop Oil activists praised the group, which includes high-profile figures such as Jolyon Maugham KC and Sir Geoffrey Bindman, saying the move was a ‘major victory’.

But the group, called Lawyers Are Responsible, was widely criticised for breaking the ‘cab-rank rule’ – which states that lawyers must take on cases as they are assigned them to ensure fair legal representation.

If they refuse to do so, they could face disciplinary proceedings such as being struck off.

Just Stop Oil activists praised the group, which includes high-profile figures such as Jolyon Maugham KC and Sir Geoffrey Bindman (pictured), saying the move was a ‘major victory’

Now, in a fresh victory for eco-activists (like Just Stop Oil, pictured), guidance from the Bar Council suggested that barristers should be allowed to refuse to prosecute them

Now, in a fresh victory for eco-activists, guidance from the Bar Council suggested that barristers should be allowed to refuse to prosecute them.

And the Law Society, which represents solicitors, also published guidelines saying they may choose not to advise on issues that are ‘incompatible’ with the global warming limits set out in the 2015 Paris Agreement.

Stephen Kenny KC, chairman of the Bar Council’s ethics committee, said at a meeting on Tuesday that barristers could opt out of the cab-rank rule under rule 21.10 ‘if there is a real prospect you are not going to be able to maintain your independence’.

He added: ‘So, if you are genuinely afflicted by conscience, such that you cannot properly do your job as an advocate… you do not have to act.

‘We do therefore have a safety valve, within our rules… those who are genuinely afflicted by conscience can choose to rely on rule 21.10.’

Paul Powlesland, from Lawyers Are Responsible, said the Bar Council’s decision showed the boycott was ‘required of us as a matter of professional obligations’.

He added: ‘We could never maintain our professional independence while knowingly advancing the destruction of the conditions which make the planet habitable.

‘Refusing to advance fossil fuel projects, which will lead to mass loss of life, is a matter of conscience.

‘Refusing to prosecute those resisting such destruction, who are now being prevented from explaining their position to the jury, in violation of the right to a fair trial, and who are receiving increasingly draconian sentences of imprisonment, is likewise a matter of conscience.’

However Nick Vineall KC, chairman of the Bar, stressed that ‘barristers are not entitled to refuse instructions merely because they disagree with the views or behaviour of their client’.

Pointing out that exceptions were ‘rare’, he said: ‘It has always been the case that, in exceptional circumstances, where a barrister genuinely feels unable to do their job because of a real prospect they may not be able to maintain independence, they should decline a case.’

He added that rule 21.10 was ‘unlikely to apply ordinarily’ to lawyers who have to prosecute climate change protesters but said the Bar Standards Board would look at individual cases.

Kirsty Brimelow KC, the chairman of the Criminal Bar Association, said it was vital to protect the cab-rank rule ‘from further damage’.

She added: ‘It is time for egos to be placed to one side.

‘The declaration of conscience is an effective protest document and raises an important focus on climate change which is a danger to millions of lives.

‘It is unfortunate that this protest has had the effect of hitting at the cab-rank rule. The fundamental of the cab-rank is to provide protection to the most vulnerable and the most despised so that they get legal representation.’

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