The `Cab Rank Rule`: - London College of Legal Studies (South)

International and Comparative Law Journal (ICLJ)
POINT OF VIEW
The ‘Cab Rank Rule’:
Required or Redundant
Maliha Ahmed1
Every legal system around the world entails principles established
solely for the protection and in the interest of the defendant
(accused) in any case. One such prominent principle would be the
presumption of innocence that regards the defendant to be
innocent until proven guilty. Entitlement to legal representation is
yet another right of the defendant aiming at securing a fair trial
(Article 6 of European Convention on Human Rights). Amongst
these rights arises the notion of the Cab rank Rule that describes the
significantly important relationship between a professional client
(solicitor), acting on behalf of the defendant, and a barrister. It is
widely believed that this Rule too serves in the interest of the
defendant than the barrister and is fundamental to law and access
to justice, a belief we wish to explore.
Historically, the Cab rank Rule derives its name from the tradition
by which a Hackney carriage or a black cab driver at the head of a
queue of taxicabs is supposed to take the first passenger requesting
The author is a student of LL.B.(Hon’s) under University of London at the
London College of Legal Studies (South).
1
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International and Comparative Law Journal (ICLJ)
a ride. In the context of English law, this Rule has been a defining
feature of English Bar for several hundred years and given official
recognition by the Bar Standards Board (BSB), the regulatory body
for barristers in England and Wales. According to Section C, Part 2:
Code of Conduct of the BSB Handbook, a self-employed barrister
must accept instructions given by a professional client (solicitor)
taking into account his experience seniority and/or field of practice
irrespective of the identity of the client, nature of the case, whether
the client is paying privately or publicly funded and any belief or
opinion he may have formed as to the character, reputation, cause,
conduct, guilt or innocence of the client. Although subject to
exceptions, this definition at its outset seeks to, principally, protect
the client from being unjustly judged and ensuring he has a counsel
in court.
The judicial acceptance of this Rule can be found in the speech of
Lord Irvine, Lord Chancellor in the year 1999, where he was of the
view that the cab rank Rule is one of the “glories of the Bar”
(contrary view by Lord Steyn and Lord Hope in Arthur J Hall v
Simons [2002]). However, contrary views by various legal
organizations have been expressed on many occasions. In 2010, the
Law Society of England and Wales questioned whether the Rule
remained a necessary and proportionate rule for the Bar at a time
when there is increasing competition for advocacy services. More
recently, in 2013, the Legal Services Board published a report called
The Cab Rank Rule: Its Meaning and Purpose in the New Legal
International and Comparative Law Journal (ICLJ)
Services
Market
by
Professor
John
Flood
(University
of
Westminster) and Professor Morton Hviid (University of East
Anglia) which argues that the rule is no longer relevant.
The report questions any operative purpose that the Cab rank Rule
serves holding that it is better described as a professional principle
preserving values than a Rule which is redundant and virtually
unenforceable. Its authenticity is assured by the interviews from
the key players (including regulators, government officials,
barristers, solicitors, barristers’ clerks) in addition to an analysis on
the economic and socio-legal aspect. One of the many arguments
resorted to by this report is the limited group of lawyers, namely
self-employed barristers instructed by solicitors to whom this Rule
applies (statistics). Moreover, an apparent simplicity of the Rule is
underpinned by the exceptions that it is subjected to (also available
in Section C of the Code of Conduct). On an essential note, even
though the Rule, as strongly believed by the BSB, is supposed to
protect the defendant’s interest, it does not apply to the
relationship between public access clients and barristers. For
instance, the Rule only states that barristers must accept the brief
without specifying the level of effort that has to be put in it. This
directly counters the aim of the Rule which is to improve access to
justice. The report also does a comparative analysis with other
jurisdiction, such as US, where a lawyer’s autonomy is given
greater respect and importance whereas in case of English lawyers,
his personal definition of morality is under challenge.
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International and Comparative Law Journal (ICLJ)
With respect to future reforms, the report considers three viable
options which are firstly, to let it remain intact, secondly to abolish
it entirely and thirdly to apply it to all providers of legal services
than exclusive groups. Despite strong arguments, the report does
not conclusively decide the outcome of the Cab rank Rule, an action
appreciated by Chair of the BSB, Baroness Ruth Deech. In response
to the report by Legal Services Board, she said, the BSB
commissioned an independent report to evaluate whether the Rule
was still relevant. The findings of the report distinctly varied from
the former uncovering evidence that not only does the Rule protect
interest of the consumer it also protects barristers from the wrath of
the community and the social stigma that might arise from
representing an unpopular defendant. It also argues that the Rule
prevents major consumers of advocacy services from putting
barristers out of circulation by making them unavailable for others
or by means of payment to agree not to take any action against
them.