And Who Are You To Judge?

[liadnan]

The Guardian writes that:

Sir Ian Blair, the Metropolitan police commissioner, last night ordered an urgent review of a policy that allows officers to refuse certain duties on moral grounds after a decision to excuse a Muslim policeman from guarding the Israeli embassy.

PC Alexander Omar Basha, who is attached to the force's Diplomatic Protection Group, objected to being posted to protect Israel's embassy in central London from possible terrorist attack because he disagreed with the country's bombing of Lebanon. The officer had reportedly attended a recent anti-war protest.

For once in my life I find myself thinking "good for Ian Blair". If personal opinions, on politics, social mores, or whatever, cause a police officer to pick and choose who they will and will not protect, then they are not capable of being a police officer. And god knows the last thing we need right now, at a time when fracturing between socio-cultural/religious/ethnic groups, particularly Jews and Muslims, is a particularly serious issue in this country, is the factionalisation of the police. And yes, I personally think it's good he went on an anti-war protest, and he should certainly be able to do so. But he has to be able to turn up to protect the Israeli Embassy the next day, or the job isn't for him. Incidentally, yesterday was, as many pointed out, the 70th anniversary of the Battle of Cable Street: a great moment in the opposition against fascism in this country. And hurrah to the protestors and boo to Moseley (even though, as I understand it, the practical significance of the event at the time may have been rather less than that of the myth, many marches etc happily took place in the following weeks in the area). But what of the police ordered to protect the march? If any one of them had refused to obey orders they would have been sacked forthwith. And I think that would have been right. (The usual point about "only following orders" not being a defence doesn't apply because they weren't taking an active role, merely a defensive one to a legal march. Equally, any action by those police outside their proper duties on the march -such as beating protestors up- is a separate point from them being there.)

(ETA: it appears that the real story here is somewhat more complicated, several different versions of events have come out, particularly that he merely requested a different duty because he feared for his family in Lebanon if seen guarding the Israeli embassy. That certainly does, to my mind, put a different spin on this incident.)

I don't actually have much more to say about that, but it reminded me of a disciplinary case concerning my own profession I saw recently. I have a habit of occasionally reading the disciplinaries: most of them are about failure to do enough CPD hours (oops) or be insured, etc, but sometimes they have a certain black humour, or at least mild interest (like the irritated barrister who appears to have shouted at the poor paralegal attending him (who was probably inexperienced and well out of her depth) in terms involving the words "complete twat", outside court but unfortunately in the hearing of a judge who promptly wrote to the Bar Council: counsel was, I'm glad to say, heavily bollocked, bullying is never pleasant and nor does making an arse of yourself in public do wonders for the profession). This one was rather more significant than most. One of the fundamental rules of the Bar, rule 1 (well, actually, rules 601 and following and see also rule 303, but never mind the trivialities) runs as follows:

601. A barrister who supplies advocacy services must not withhold those services:
(a) on the ground that the nature of the case is objectionable to him or to any section of the public;
(b) on the ground that the conduct opinions or beliefs of the prospective client are unacceptable to him or to any section of the public;
(c) on any ground relating to the source of any financial support which may properly be given to the prospective client for the proceedings in question (for example, on the ground that such support will be available as part of the Community Legal Service or Criminal Defence Service).

602. A self-employed barrister must comply with the ‘Cab-rank rule’ and accordingly except only as otherwise provided in paragraphs 603 604 605 and 606 he must in any field in which he professes to practise in relation to work appropriate to his experience and seniority and irrespective of whether his client is paying privately or is publicly funded:
(a) accept any brief to appear before a Court in which he professes to practise;
(b) accept any instructions;
(c) act for any person on whose behalf he is instructed;
and do so irrespective of (i) the party on whose behalf he is instructed (ii) the nature of the case and (iii) any belief or opinion which he may have formed as to the character reputation cause conduct guilt or innocence of that person.

And

302 A barrister has an overriding duty to the Court to act with independence in the interests of justice: he must assist the Court in the administration of justice and must not deceive or knowingly or recklessly mislead the Court.

303 A barrister:
(a) must promote and protect fearlessly and by all proper and lawful means the lay client's best interests and do so without regard to his own interests or to any consequences to himself or to any other person (including any professional client or other intermediary or another barrister);

And various supporting rules, including that nice one about "proper professional fees".

What had happened in this case was that some barrister had been instructed on behalf of a member of Teh Evil Tribe Of Gay. That in itself may or may not have been a problem for him, but what he took particular issue with was the fact that the case concerned the rights of this sickening individual to remain in this country on the basis that his partner was here. I don't know whether or not they were civil partnerised (yet another reason why we should just have said gay people can be married, rather than creating a special thing just for them is the resulting insults to the English language) or not and the merits of the substantive case itself are irrelevant. The point is the barrister refused instructions because making a case for someone relying on their homosexuality conflicted with his personal ethics, morals, beliefs, what have you.

The hierarchy of the Bar, from present and past Attorney Generals down, plus some of the judiciary all seem to have given evidence about the interpretation of the rule and what has and has not been done in the past (about which the tribunal wasn't actually particularly happy, there's an implication in the report they felt they were being leaned on) and came down on him very hard. Quite right too.

I was talking about the case to a colleague in the pub: I argued that although I quite agreed with the result, I did wonder what I would do if I ever received instructions that required me to argue against some deeply held political conviction. Or even to argue a point of law against what objectively I considered the "right" interpretation of that point. It's never happened but I thought it might be difficult, far more difficult than representing someone I personally thought was blatantly lying, and/or was a crook, or simply a vile specimen of humanity. Which has happened: I've worked on litigation where I personally felt our clients were more than a little stinky, I've represented people I thought were lying through their teeth, and I've represented people I wanted to slap round the head and tell to grow up. I've also worked on a case where the principal strategy was to drag out the civil litigation arising from some murky dealings for as long as possible purely because the SFO were unlikely to do anything on the criminal side until that case was concluded. A highly successful strategy I believe it was too, including a jaunt all the way to the House of Lords on a fascinating but rather abstruse point of law on a strike out: by the time that was concluded the proceedings were several years old and the trial was still realistically years away: any twinkle in the SFO and CPS' eyes had probably long been buried in a dusty file. And in all those things I've happily represented my clients to the best of my ability subject to the overriding duty to the court etc. At least, I hope I have.

People always ask the tedious question "how can you defend someone you know is guilty". To which the real answer is "how do I know? What you mean is strongly believe." (If you do actually know, because they've told you, then subject to some complex points rule 302 probably applies and you usually can and do withdraw: you absolutely cannot put to the court facts which you know to be false, though you can put the other side to proof of those facts.) They are invariably thinking of criminal work, which I don't do, but it arises in civil as well. In the end, in an adversarial system, you just remember there's someone probably at least as good as you on the other side (there are some additional rules when you're on an application without notice to the other side, and some special considerations you are expected to bear in mind when against a Lunatic In Person) and a judge (and in crime or defamation or a civil action against the police a jury) in the middle: you stick to your job and leave their jobs to them. In practice, that isn't very difficult: it doesn't matter whether you believe your client or not except insofar as it affects your tactics. The judge is probably rather better than you are at determining whether they are lying through their teeth or not. The only time I've really felt bad about a case we were clearly in the right, I just felt very sorry for the chap.

But I suspected that if a point of pure principle arose, if I had to argue a principle that utterly repelled me, it might be somewhat different, far more difficult. My colleague disagreed: he said he felt it would actually be the other way round for him. But then, he promptly pointed out, he has no morals or principles anyway. Splendid chap. Either way, though, it being difficult isn't an excuse. Independent we may be, but we are also officers of the court and servants of the law, and the way the legal system in this country is set up relies on us doing our job properly, however distasteful it may be from time to time. What you might do is tell the client (or perhaps, more tactfully, your instructing solicitor) that given you find the whole case and your client utterly repellent someone else might actually do a better job. But if they stick with you, or there isn't the time to instruct someone else, you just get on with it. If you can't do that then this is perhaps not the profession for you. Your personal opinions are subordinate to your duties. We aren't politicians, or priests. Or bloggers, in the day job.

Nor are the police

Comments

[ajva.livejournal.com]

Interesting post, thanks.

[oursin.livejournal.com]

See also, pharmacists refusing to dispense the morning-after pill.

[knell.livejournal.com]

Yup, I've never quite understood why people find it hard to grok the difference between duty and beliefs. If you're a policeman assigned to escort and/or protect a BNP march, that doesn't make you a BNP member yourself. It makes you someone who's doing a job. You don't fight fascism by throwing bricks at people, you fight fascism by removing the causes of fascism, and in the meantime the role of the police is to uphold the law rather than act as some kind of unreliable mercenary force.

Turn it around and reductio it truly ad absurdum and you get "Oh, I'll overlook you chucking bricks at that (synagogue/mosque/church), because your beliefs coincide with mine". Some jobs require duty and following of orders - and as you say, if you can't cope with that then you're in the wrong job.

[liadnan]

Indeed. And in the end "who told you this job was going to be easy?"

[f4f3.livejournal.com]

Oh what a tangled web we weave, when first we practice to relieve... or something like that.

The spin on the Police case this morning is that he may have been relieved of the duty due to "welfare" rather than "moral" grounds, in that he had relatives in Beirut and feared for their safety - in practical terms, this isn't a bad out. I wouldn't like to be guarded by someone who's family my government were killing - it might make me wonder about his keeness to protect me. And the PC has said he's more than willing to go back now that the Israelis aren't trying to kill his family.

But I don't think it was that at all, I think it was a stupid decision made on the point with no consideration of the long term implications.

[liadnan]

After what various people have noted in the comments, I do think the facts of the police case are rather less clear than I originally understood.

[booklectica]

But if they stick with you, or there isn't the time to instruct someone else, you just get on with it. If you can't do that then this is perhaps not the profession for you.

You mention earlier doing the job 'to the best of your ability'; in a case where the principle repelled you, would you still do the best possible job, or would you just do the minimum required? I'd be tempted to do the job, but - not do it badly, but not put everything I had into it. Thus increasing the chance that the side I actually agreed with would win.

[liadnan]

Consciously I hope and believe I would still do it as properly as I could, it's more that arguments might not occur to me because I don't have the conviction to back it up. The fact it might have a subconscious effect on your abilities is why you might want to raise whether you are the right person for the job. But often, at least in some fields, there isn't going to be time for that: it's not at all uncommon, particularly at the junior end of things, to actually receive your instructions the evening before you're due in court.

Incidentally, a person who does passionately believe in the cause they are advancing is not necessarily the best person to fight it in court. Passionate belief can make it more difficult to approach the case with clarity.

[legionseagle.livejournal.com]

I thoroughly detested the recurrent LA Law storyline where members of the firm instructed in such circumstances did, in fact, do the minimum decency required, rather than a decent job.

[rhythmaning.livejournal.com]

I think I am going to be a bit contrary here. PC Basha had every right to say he would prefer not to do this particular aspect of his job. If his wishes could be accomodated (by swapping with someone else, for instance), what is the problem?

The real issue is that what should have been a private discussion with his line manager has been brought into the public domain.

According to the BBC, it was the Sun wot broke the story. I wonder why?

[liadnan]

The problem is that he has implicitly made clear that he is incapable of dealing within his job with all parts of the society he is bound to serve impartially in accordance with the law, or at least that he is unwilling to do so, and that he apparently considers his opinions outweigh his duties (on a point where matters of ultimate conscience do not apply, he's not being asked to shoot protestors). For a public servant, when acting as a public servant (this is not a point of general application and by and large does not apply even to public servants outside the job) I find that unacceptable as a matter of principle: that he could be accomodated as a matter of fact is irrelevant.

As I indicated, I think there's a difference between saying "take me off this duty" and "do you think I am really the right person for this particular job".

[ninebelow.livejournal.com]

The problem is that he has implicitly made clear that he is incapable of dealing within his job with all parts of the society he is bound to serve impartially in accordance with the law,

Do you remember this:

http://news.bbc.co.uk/1/hi/scotland/glasgow_and_west/5301334.stm

[liadnan]

No actually, don't remember seeing that story at all. That's outrageous (the firefighters' refusal, not the entirely appropriate disciplining). And why did the Catholic archbishop get involved (other than being inclined to pontificate (hah) on anything and everything, obvs)? I imagine the answer is they were Catholic, though I can't see that said in the story. But I fail to see the logic even from the point of view of the Catholic church. "They had legitimate concerns about being the subject of taunts and jokes, and in which in some cases, their religious sensibilities would have been grossly offended by people dressed as priests and nuns lampooning the Church." Oh grow up and grow a backbone.

[liadnan]

Oh, I was on holiday at the time, that explains why I missed it.

[greyarea.livejournal.com]

From what I understand, he didn't ask to be taken permanently off the job, he was concerned for his safety. Quite why is unclear, but his bosses seemed to agree with him, which is why they let him move temporarily. From what I understand he's back doing the job again now.

The more I hear about this, the more I don't think anyone really knows enough about it to comment authoratively (except the police, obv).

[rparvaaz.livejournal.com]

I haven't read the Guardian article, and won't do so as I am brain-dead again, but the bit you quote mentions a policy review, a change in the already existing policy. I am not sure why PC Basha is unfit for his job if he wishes to take advantage of a policy already in place. Presumably, the policy is in place because plenty of people find it useful, and presumably others have used it to.

Like you, I find the notion of factionalisation of the police [or the army] rather dangerous, but I also find this public discussion of an internal police matter dangerous. Review the policy by all means, but to ascribe that review to one PC's request, and that too a request based on established policy, strikes me as a bit strange. Especially since, as you mention, fracturing between socio-cultural/religious/ethnic groups is a serious issue in Britain today.

[liadnan]

I find the fact the policy exists at all pretty shocking, and that any police officer who feels the need to take advantage of it, who does find it useful, should really consider whether they should take the job.

"Policy" I suspect means something rather ad hoc.

[rparvaaz.livejournal.com]

Oh, I find it rather shocking as well. I just don't approve of this public trial of the issue. And if it is an ad-hoc policy rather than something more established, then the chap who thought it was a good idea needs to explain just why he thought it was a good idea to excuse PC Basha.

I don't disagree at all with your basic views, I just find this entire issue rather badly handled.

[(Anonymous)]

I think you always have the moral right to refuse to do anything which you regard as against your conscience, even if it is part of your official duties in your job. For example, refusing to guard concentration camp trains.

On the other hand, that's not the same as saying that you should expect to keep your job in that situation, or (if you work in a fascist state) to not get shot...

[keithlard.livejournal.com]

Sorry that was me by the way :>

[major-clanger.livejournal.com]

So I take it you are happy for doctors to refuse to provide contraception or advice on abortions or the morning-after pill? Or for teachers to refuse to teach evolution?

Both of these happen very frequently in parts of the USA.

[keithlard.livejournal.com]

Yes, I think so, if you are convinced that something is morally wrong, you shouldn't do it.

As I pointed out though, if your morals are at odds with the prevailing values in the society where you live, you are likely to face consequences such as losing your job, liberty, or life, depending on the situation.

[knell.livejournal.com]

On the other hand, you should consider such things when accepting employment. For instance, if a sysadmin had to deal with porn when investigating abuse of their systems (not child porn, obviously, which is such a hot potato that at the first inkling of anything you shut the systems concerned down and call the cops - not something I've had to do, but I know people who have) would they be entitled to be excused from doing that sort of thing if they felt pornography was morally wrong and that they'd be somehow tainted by being exposed to it?

Some things come as part of the job. Comparing guarding the Israeli embassy with guarding concentration camp trains is something of a leap, I think.

[keithlard.livejournal.com]

I understand where you're coming from on that one.

It maybe sounds a bit pretentious to say that there is a higher law than whatever happens to be the current law of the land. I think it is true though. If you sign up for the police force in good faith, what happens if successive governments pass more and more brutally repressive laws, culminating in orders to round up all the Jews, for example? At which point is it not OK to say 'I don't like what I'm being asked to do, and I reserve the right not to do it'?

There is no moral obligation to obey unjust laws. I'm not saying that this principle applies in the OP's particular case, of which I don't know the facts. Just asserting the principle, that's all :)

[lizw.livejournal.com]

There are two versions of that story - the Association of Muslim Police Officers says that he was concerned for the safety of family members in the Middle East and was given permission to transfer to other duties on welfare grounds.

I've been thinking about the limits of who I would act for myself since taking A Certain High-Profile Case, but our professional conduct rules are different and allow us to turn clients down far more easily, or to terminate a retainer. If approached to act for the Secretaries of State in that case, and on the assumption that I could not have dissuaded them from the most objectionable of their arguments, I think I would have refused/terminated the retainer on the grounds of a breakdown in trust and confidence between solicitor and client. I am still thinking about how to articulate in terms that are more broadly applicable the precise circumstances in which I would do that, but the presence of life-or-death issues is definitely one of the factors.

[liadnan]

It's going to be more likely to be an issue if you're dealing with liberty of the subject, asylum, immigration all that kind of thing. Or death penalty if we had it, but I've known things come up in the chancery commercial world.

[lizw.livejournal.com]

Presumably there are British barristers and solicitors who do pro-death penalty work on PC appeals - or do the states concerned just ship in the same lawyers they used in their home Courts? The appellant is usually represented pro bono by City firms - someone at Herbert Smith runs a scheme to distribute the work between the volunteers. Some of my colleagues do it. I'm registered with a different scheme which assists US death penalty lawyers with research and review tasks, but I've never actually been called on.

[liadnan]

That hadn't occurred to me, and I don't actually know the answer but I suspect it doesn't arise in practice. It has been a matter of some debate whether English barristers are required to follow the cab rank rule in respect of instructions from outside the jurisdiction (I am not sure what the answer was but I think it was actually "no" -unless they are also called in that jurisdiction-) and I suspect that they do use WIndian counsel before the privy council on those cases. And instructions will come from the AG/CPS/Tres.Sol. equivalent in that jurisdiction so I doubt they use English solicitors.

[brelson.livejournal.com]

In February 2003, in the run-up to the invasion of Iraq I spoke to my then boss and expressed a desire not to work on any of the projects my company was undertaking for the MoD.

I made it clear that if our business was likely to suffer from my being kept away from those projects then I'd happily work on them (the unspoken proviso there being, while looking for a position with another agency that didn't count the MoD as a client).

As it turns out it was possible for me to be resourced purely on non-military projects without any detrimental effects for the MoD projects our company was working on, so my boss was able to agree to my request.

I don't think there's any significant difference between my case and this case in the sense that there was a request to be assigned to other duties if it was operationally feasible, rather than a refusal to carry out duties deemed to be unpleasant or immoral.

[liadnan]

The Guardian report says refusal. On the BBC story, which I had not previously seen, Glen Smyth of the MPF states that he did not refuse, but requested and I do think that makes a significant difference, though I would still find it highly problematic. Equally important to me is the fact that in your example you were not a public servant, but an employee of a private contractor, albeit one which took state contracts.