Taking the temperature - Cab ranks and the climate

If I had the time or the inclination I would quite like to write a radio play about Edwardian advocates returning from a long day in court prosecuting suffragettes and sitting down to dinner with their wives. Those conversations must have been fascinating. I imagine three types of wife. The first patting her husband on her back while fetching him a tumbler of whisky. The second saying nothing but privately seething. And the third I see as a kind of Mrs Banks loudly rooting for the defendants over the lamb chops. I say wives because the first woman barrister was not called until 1922, 6 years before the vote was extended to all women. I wonder whether any briefs were quietly declined. 

It may seem astonishing in 100 years time, when London may be under water and the climate migrations are measured in the millions, that there was a time that we prosecuted and imprisoned those who sought in desperation to compel radical preventative action, however annoyingly, vexatiously and illegally. It is not given to any of us to know the future but for every climate protester prosecuted and imprisoned there is a police officer arresting them, a lawyer prosecuting them and a judge sending them to prison. They also have friends, families, loved ones and children. They watch the news, read books, see the temperatures too. 

They are also all bound to apply the law as it is, as it is now, not in the future, and as it is now without application of private moral exceptions. The CPS does not force barristers to prosecute, on the contrary it requires those wishing to do so to jump through many hoops before permitting them to do so. But once on their lists if you’re offered an instruction you’re expected to take it. 

Barristers in criminal practice are not much given, in reality, to worrying much about the Cab Rank Rule. There are many who, as a matter of principle, refuse to prosecute. Some rarely if ever defend. Some avoid instructions in sex cases. Most of them are far too worried about making their next mortgage payment or tax bill. The news, therefore, that a number of lawyers were signing up to an undertaking to refuse to prosecute climate protesters was greeted with curiosity and some confusion among many criminal barristers. 

Who was it going to be? Grade 1 prosecutors, or Grade 4, or perhaps a selection from all levels. Or, as it transpired, not a single person that I’m aware of ever having prosecuted a case in the criminal courts. The Criminal Justice System is too important and too central to the functioning of society for those that practice within it preciously to declare ‘Nothing about us without us’. Likewise, the Millennial slap-down ‘Stay in your lane’ is high-handed and unbecoming. Criminal practice and policy is there to be debated by all; even barristers. 

But there’s a good reason why most criminal barristers think long and hard before making public comment, still less formal declarations, about traditional chancery cases, charterparties or abstruse points of patent law. I’m always happy to engage with fellow members of the ‘One Bar’ as the Bar Council likes to call us whether they’re on £2 mill a year or £20k. But I won’t mind admitting that if they want to weigh in on matters criminal they might want to help us point out that it is taking years for rape cases to come to trial and many criminal courts are literally falling apart. 

It's also worth reflecting why people protest. They want themselves and their cause to be noticed and nothing gets you noticed quicker than getting banged up.