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

[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?"