Why I do not support the barristers who are refusing to prosecute eco-activists

A group of 120 “top lawyers” have signed a “declaration of conscience stating they will not prosecute “peaceful climate change protestors” and will “withhold [their] services in respect of supporting new fossil fuel projects.”

Predictably the tax specialist and founder of the “Good Law Project” Jolyon Maugham KC is amongst the signatories, although the practical effect of his conscientious objection is limited. I’m pretty sure he has never prosecuted a criminal case in his entire career, and it would be remarkable if the CPS now decided to instruct him to prosecute a climate change protestor. The same can be said for the vast majority of the signatories, who also include Tim Crosland, director of the environmental pressure group Plan B who was recently disbarred for deliberately breaching a publication embargo on a Supreme Court judgment (you can read his justification for doing so on this blog). Another is Sir Geoffrey Bindman KC, a distinguished human rights solicitor and certainly someone who knows his way around a criminal court, but who at the age of ninety is unlikely to have the appetite to complete the soul-destroying process of applying to join the list of CPS approved counsel, on the off chance that he might then be sent a brief to prosecute a climate change activist which he could then dramatically refuse to accept.

The effect of the declaration to withhold legal advice to companies seeking to develop new fossil fuel projects is also likely to be non-existent. I suppose it is just about conceivable that an Esso in-house solicitor might take leave of his senses and seek Mr Maugham’s assistance in devising a tax avoidance scheme, but it would be the height of corporate folly and it is not going to happen.

Yet despite not having any practical effect, the declaration does raise an important point of principle. By indicating that they will refuse instructions on what amount to political grounds the barrister signatories – somewhat different considerations apply to the solicitors – are directly challenging one of the core principles governing the profession. In areas of law in which they have expertise barristers are required to accept instructions to represent any client, irrespective ofthe nature of the case to which the instructions relate” and “any belief or opinion which [the barrister] may have formed as to the character, reputation, cause, conduct, guilt or innocence of the client.”

The self-righteous signatories of the declaration consider that this principle – the cab-rank rule – should not apply to them. In their view barristers should pick and choose their clients on the basis that they approve or disapprove of them.

Of course it matters little that Jolyon Maugham will not be prosecuting climate change protestors or advising the oil industry, but if the principle that barristers should discriminate between clients on the basis of their political beliefs were to become accepted it would matter a great deal. People would then say “that barrister must agree with that client, otherwise they wouldn’t agree to represent them.” Unpopular clients will struggle to find representation, barristers who choose to represent them will themselves risk becoming pariahs. If climate activists can publicly refuse to represent oil companies, it is easy to imagine others refusing to represent those accused, say, of child abuse or domestic violence. Indeed there may be some that already do.

So it is time the Bar put a stop to this nonsense before it gets out of hand. To his credit the Chairman of the Bar Council, Nicholas Vineall KC – who lists on his chambers website that he has “acted for rig-owners on a threatened North Sea drill contract cancellation” (he didn’t say whether he won, but I hope he did) – did his best to stand up for the cab-rank rule in an address at the Temple Church last week. “It is,” said Vinneall, “for judges or juries to decide who is right and who is wrong, not barristers.” It is an absolutely fundamental point underpinning the rule of law.

Amongst the congregation, and recording Vineall on his mobile phone, was another of the barrister signatories to the “declaration of conscience,” Paul Powelsland. He tweeted that there had been “disgraceful scenes at the Temple Church tonight.,” referring, obviously, to Mr Vineall’s modest and polite defence of the cab-rank principle rather than to his own  behaviour.

Mr Powelsland, who has a taste for twitter stunts, held up a placard inside the church reading “How Many Deaths Does ‘Cab-Rank’ Justify?”

After the service he harangued the Master of the Temple, demanding to know

“What is the official Christian position? Should I as a barrister be forced to act for fossil fuel companies whose actions will lead to the deaths of millions of people in the global south, yes or no?”

Needless to say, there is no “official Christian position” on the cab rank rule, there is not the slightest prospect that Mr Powlesland will be “forced” to act for fossil fuel companies, and the assertion that their actions will “lead to the deaths of millions of people in the global south” is at best highly tendentious and quite possibly the complete opposite of the truth. It is impossible, to take just one example, to see how, without the use of natural gas, the fossil-fuel-free world that the lawyers want to bring about could possibly feed its current population, until someone invents a practical alternative way of manufacturing the nitrogen fertiliser that has in recent decades boosted crop production to hitherto unimaginable levels. Without such fertilisers billions could starve. Such dangers, such complexities and such moral dilemmas are simply ignored by those in the grip of this environmentalist cult. It is no surprise that in their pursuit of moral purity these misguided lawyers seem to consider the rule of law as just another impediment on the path to their Utopia.

(This is a slightly longer version of a piece that first appeared in The Spectator on 25th March 2023)

Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

30 thoughts on “Why I do not support the barristers who are refusing to prosecute eco-activists”

  1. Agreed but how do you feel about lawyers representing Russian mercenaries involved in perpetrating atrocities in Ukraine ? Surely there comes a point where one has to ‘take up arms’ as it were

    1. How does one know that the defendants are, indeed, Russian mercenaries? How do we know whether or not they were in the Ukraine at the relevant times? How do we know whether or not they committed any or all of the alleged atrocities? These are matters to be resolved by judge and jury, and it is the function of the Bar to assist in this forensic process by representing those who are accused, even if one finds one’s clients to be personally repulsive. This is the basis of the cab rank system; namely, every person has a right to a fair trial, even Jack the Ripper.

      1. With regards to defence at a trial I agree but I was referring to the lawyers that represented Yevgeny Prigozhin against a UK journalist. Surely in times of war some individuals do not deserve representation ? Firing howitzers isn’t a matter subject to justice.

    2. I would have no problem with lawyers representing Russian mercenaries in Ukraine, or indeed with representing Mr Putin himself should he decide to surrender himself to the International Criminal Court. If lawyers could defend Goering, Ribbentrop and Hess they should defend Wagnerians, Prigozhin or Putin too.

        1. Not exactly the same thing as prosecuting in local mags for unlawful obstruction . . If Putin or Greta want to stick their body parts to the tarmac then I would be happy to prosecute . . Likewise, if they came to me and said that they wanted me to defend them, then I would do so…..plus the tea is usually OK at the mags . .

          1. The millions of deaths claim is based on the science rather than your knowledge or estimation of tendentiousness. I don’t agree with this petition but it is more designed to show how erstwhile legal rules are abused,and used, by those in power to evade the rule of law for things they support – something we know from British history and the powers that be’s attempted suppression of anyone attempting to achieve the fairness and equality of treatment we now consider unimpeachable- from the Peterloo Inquest to the Suffragettes criminalisation, from the Chartists to anti-workers Union torts

  2. Totally agree. Very bad for rule of law, puts actual criminal barristers at risk of being interrogated by idiots about believing their client. Everyone has the right to a fair trial, very much including legal representation for defence. There are clear rules about what to do if client actually tells you they are guilty or agrees facts that amount to that.
    This is virtue signalling at its most ridiculous.
    Incidentally, I once told an actual taxi driver about the CRR and he was amazed and delighted.

  3. Unlike, I suspect, many of those who have engaged in this virtue signalling, I am a barrister who, in the past, has prosecuted many criminal cases. Leaving aside what I understood to be the fundamental positions of the Cab Rank principle and upholding the Rule of Law, I do wonder whether these people actually know what they are signing up to? It is one thing to formulate a position on a particular matter for personal consumption (perhaps that England’s men will one day win the European cup), but it is quite another to posit this as the basis for formal political policy. To put it bluntly, I doubt whether the majority of the signatories know one end of the climate change argument from the other. For example, this nonsense on the placard about climate change, leading to the deaths of millions. The proponents of this particular speculation never, of course, give a timescale. If they did, then when one would swiftly realise that the human race is well adapted to adaption (pun intended) and has been so for many tens of thousands of years. I doubt whether most of those signing this particular petition have gone beyond taking this so-called “fact” at face value. This is surprising in a profession which professes to apply the forensic method to analysing problems. To paraphrase Carl Sagan, remarkable claims require remarkable evidence. This is a remarkable claim. So, therefore, where is the evidence? One could go on. For example, this rubbish about birds eating plastic when, in fact, they are simply taking suitably shaped plastic pellets into their gizzards in order to grind food. A bird does not have teeth and so swallows small bits of gravel that act as ‘teeth’ in the gizzard, breaking down hard food such as seeds and thus helping digestion. If it were not plastic, then they would be taking on board stones or grit into to do the same job. Yet no one has ever suggested that birds eat stones. So I go back to my initial point, which is why barristers are disrupting the very fundamental cab rank principle when, in all probability, they haven’t got a clue as to why they’re doing so?

    1. The millions of deaths claim is based on the science rather than your knowledge or estimation of tendentiousness. I don’t agree with this petition but it is more designed to show how erstwhile legal rules are abused,and used, by those in power to evade the rule of law for things they support – something we know from British history and the powers that be’s attempted suppression of anyone attempting to achieve the fairness and equality of treatment we now consider unimpeachable- from the Peterloo Inquest to the Suffragettes criminalisation, from the Chartists to anti-workers Union torts

  4. Thank you for your elegant rebuttal of the views of those who practise the law but seem not to understand the cab-rank rule, a baffling failing. Your article highlights yet another example of the often sanctimonious behaviour of virtue signalling progressives, who seem willing to sacrifice logic and customary practice to the god of confected outrage.

  5. As usual, you are the height of good sense and sound on the law and legal process. But perhaps a finer compliment I can pay you is that you are a better writer than virtually anyone else offering opinion in newspapers or the blogosphere. I fear Mr Maugham, now in the Goodlaw phase of his career, has turned himself into a robing room joke.

  6. The utility of my time in commenting on such infantile sophistry, precludes a more lengthy, comprehensive and essentially lucid response! I have left it to my twelve year old great-grandson to pull together a number of salient bullet points. They are as follows……
    1) Near ad hominem remarks targeting the 120 do not include Mike Mansfield, one wonders why??
    2) a) “A great change in our stewardship of the earth and the life on it is required, if vast human misery is to be avoided and our global home on this planet is not to be irretrievably mutilated”……
    {The World’s Senior Scientists….1992}
    b) Studies between 2019-2021 reveal a climatic consensus of 98-100%!
    c) World Scientists’ Warning of a Climate Emergency 2022 is a follow-up assessment of planetary vital signs with a focus on climate-related disasters and extreme weather!
    3) The 120 make no mention of your “cab-rank” nonsense. The statement is one of moral direction: certainly not…..”free-thinking for all”
    4) The adage that there are always two sides to an argument depends whether one of the sides is epistemologically true. In this case the evidence is existential!
    5) Since protests against the destruction of us all by a tiny selfish minority are both, by definition, international and existential, they cannot be political! Your complaint here is eye-wateringly ironic since your original article was published in the “Spectator”!!! Not renowned for its balance!
    6) Finally, although my great-grandson would not recognise the words he can see circular fallaciousness when it is used. I will conclude with a thought from “Noam Chomsky” using some of his words; used in 2011. The production of food will be of little use if “…..the environmental crisis advances and a viable society goes with it…..”

    1. I would like to take your first point first, if I may. To my mind, there is often a conflation between unacceptable ad hominem attacks and genuine enquiries as to the expertise of the person making a particular statement. One of the first things that one learns when it comes to cross-examining expert witnesses is to enquire as to whether or not the witness in question has the necessary expertise to give evidence on the subject to which he purports some affinity. This is not an ad hominem in attack but a proper line of questioning. To give apposite example, I suspect that the linguist Noam Chomsky is not a qualified climatologist and I do wonder what weight one can give to his words on topic outside his field, if any. So far as this business is concerned, it is perfectly proper to ask whether or not those signing this declaration have, in fact, carried out the necessary research in order to back up their public policy positions. I seriously doubt if this research has happened because, otherwise, the 120 would realise that there are two sides to this argument. I will come back to your underlying substantive arguments later on; however, each and every one of them is debatable. Either these barristers do not know this, or, alternatively, they are substituting their subjective opinions for those of their clients or potential clients. This is wholly anathema to the cab rank principle.

    2. As to the matter of the alleged consensus among scientists, I need to say at the outset that my position here is that there are two sides to every argument. Again, repeating what I said earlier.
      The first point is that consensus is irrelevant in the matter of science. There have been many cases where the received wisdom has been found to be lacking. One example being, of course, the failure of Newton’s laws of motion to accurately describe the perihelial motion of the planet Mercury around the Sun. Indeed, those seeking to uphold the sanctity of Newtonian physics went so far as to pretend that Mercury’s orbit was afflicted by the presence of a then undetected and metaphysical planet called “Vulcan”. Needless to say (aside from Star Trek) no such planet exists. It was left to Einstein to sort the matter out by way of the special and general laws of relativity. The underlying problem being that Newton’s laws broke down when seeking to describe a small, fast moving object (ie Mercury) rotating around a large object with a heavy gravitational impact on space time (i.e. the Sun). There is nothing particularly new in this. But it is important to flag up that, as I say, one to be cautious of the person who tells us that something is “settled science”.
      Turning to the authorities thus cited in Mr Bavin’s response, the ‘union of senior scientists’ is, in fact, the union of CONCERNED scientists. When one looks to their website, it is not clear whether the “scientists” are either senior or climatologists. The union has this to say about themselves:
      “Today, we are a group of nearly 250 scientists, analysts, policy experts and strategic communicators dedicated to that purpose.”

      The website ‘Media Bias Fact Check’ states that:
      “Overall, we rate the Union of Concerned Scientists Left-Center Biased based on political advocacy that aligns with liberal policy. We also rate them as Mostly Factual in reporting rather than High due to occasionally publishing misleading information regarding GMOs.”

      Next, there is the 97% fallacy. This alleged statistic is widely quoted, but little understood. The research method appears to be that a researcher will review a number of scholarly papers with a view to ascertaining the alleged position taken by the said scholars. Not surprisingly, those advancing the 97% fallacy had been accused of cherry picking.
      Even the Guardian has been critical of the methodologies applied by some of these researchers. Under the banner “The Myth of the Climate Change ‘97%’ “ they said:
      “ The claim of a 97% consensus on global warming does not stand up”

      1. Your link to a Guardian page is not a link to a statement that the 97% claim is wrong, it is to a statement (in the form of a defence to a research paper) that the claim – which was itself made in a 2013 research paper – was unproven.

        The maker of that statement in the Guardian (a professor of economics at the University of Sussex) in his own research paper questioning the conclusions of the 2013 paper, writes as follows:

        “There is no doubt in my mind that the literature on climate change overwhelmingly supports the hypothesis that climate change is caused by humans. I have very little reason to doubt that the consensus is indeed correct.”

        I’m used to seeing half-baked attempts to call into question the scientific consensus on anthropomorphic climate change by reference to cherry picked data and similar, but I didn’t expect anything quite so slipshod from a barrister.

        With Matthew Scott’s original post, criticising the 120 who signed up to say they won’t accept instructions to prosecute people they personally agree with, I am in full agreement. It is indeed a fatuous but dangerous challenge to a core principle governing the legal profession in England & Wales. In this era when JK Rowling is being threatened with rape and murder because she does not go along with the wishes of trans activists across the world, every effort to prevent lawyers being aligned in the mind of the public with the causes which they present in court, should be pursued.

      2. Are there “two sides” to the Theory of Gravity, Newton’s laws of motion, Special and general relativity, the laws of statistics, the laws of chemistry, the inexorableogic of maths etc etc. There maybe several interpretations and methodologies applied to 5he same raw data but you would be hard pressed to find any scientist worldwide who would,say there are two right answers. In fact your answers and citations appear to show a basic lack of scientific knowledge

    3. The reality of climate change is hard to deny as is it’s anthropogenic origin although there is more room to dispute this. The question of what is the correct response to this is very much up for debate.
      Do we build many more nuclear power stations.
      Do we simply accept climate change and seek to mitigate the effects?
      Do we seek to engineer the climate by scattering dust in the upper atmosphere?
      Do we seek to accelerate the move towards the use of renewable energy.
      Do we seek to improve energy efficiency
      Do we impose energy austerity reducing average consumption?
      This is not an exhaustive list so their very clearly is room for an extensive debate about this.

      Personally I think climate protestors propose impractical unworkable solutions and actively work t prevent and frustrate effective measures to reduce damage to the climate but that’s just my opinion.

      Britain is a democracy and if those that advocate a particular response want to argue their case they have many means of doing so without breaking the law. If people chose to break the law and particularly if when they do so they disrupt the lives of tens or even hundreds of thousands and endangering some lives then they should expect to be prosecuted. Those within the system have a responsibility to ensure this can be done and it follows an appropriate process. Its critical that the personal views of those involved do not affect the process.

      I am shocked their are significant numbers of legal professionals who take a different view. If politics, even personal politics becomes intertwined with the administration of the law then we are on a very slippery slope.

  7. Matthew, as one who has worked in the energy industry for nearly forty years the ignorance of these people and climate change activists in general is astounding. The Green movement is an unholy alliance of multiple activist groups from vegans who want to stop us eating meet, to hedge funds betting against the fossil fuel industry. Their mantra is “ follow the science “ when clearly they are not. Their ludicrous claims are often contradictory and confusing, but this doesn’t seem to matter to the cult of green. I could go on for hours but I will leave it there.
    However, this cult has infiltrated and infected most of our national institutions, organisations and large companies, and let’s be honest our government. If they are allowed to bring their mistaken beliefs and bias to the legal profession destroying tradition and even the possibility of an individual being declined legal representation, it strikes at the core of western values and our culture of fairness and equality in the eyes of the law.

  8. As a barrister, I of course agree with everything you say about the cab rank rule and its importance. But the interesting question to my mind is what, if anything, the BSB should do about these barristers who publicly reject a core principle of the profession?

    Should it take the view that they bring the profession into disrepute and should be subject sanction, simply by publicly rejecting the CRR? Or is it necessary for there to be an actual occasion on which they decline instructions for political reasons before any action can/should be taken against them?

    While I instinctively incline to view that if they don’t accept the CRR they should not be barristers, I doubt that the BSB can proceed on that basis.

    1. I would agree with your last line
      I would add that the “120 top lawyers ” include solicitors . . Also, I never knew that a trainee solicitor is a “top lawyer” but thus are webs spun . . .What I can say is that the virtue signalling academics on the list are unlikely to be instructed to prosecute for unlawful obstruction contrary to s137 of the Highways Act 1980 . .

  9. My response to Mr. Bavin’s point 4 (the existential threat) goes like this:
    I’m not sure where the annoying person with the placard derived his death toll figure from and it would be intriguing to follow that to source. Certainly better than annoying a senior cleric after a church service. This seems to be in the same ilk as the alleged “6 billion deaths” fearmongered by those who glue their hands and other body parts to the fast lane of the M25.
    The World Heath Organisation has this to say under the banner “Between 2030 and 2050, climate change is expected to cause approximately 250 000 additional deaths per year, from malnutrition, malaria, diarrhoea and heat stress.”

    As a matter of basic arithmetic this speculation on a multivariant hypothesis does not add up to 6 billion, at least not over the next 30 odd years. The WHO goes on to say:
    “Although it is unequivocal that climate change affects human health, it remains challenging to accurately estimate the scale and impact of many climate-sensitive health risks. ”
    Given that the climate of the Earth has been changing for millions of years, and will continue to do so, a mere attribution to climate change as a generality does not go to the point. The issue here, of course, is whether any causal relationship can be drawn between any purported human induced warming and putative increases in morbidity and mortality. The WHO does not pin its flag to any mask on this particular point, let alone predict any catastrophic death rate:
    “However, scientific advances progressively allow us to attribute an increase in morbidity and mortality to human-induced warming, and more accurately determine the risks and scale of these health threats . .”
    Good luck with that one ! This is hardly the stuff of an existential threat to the human race as a whole, let alone an existential threat to 6 billion people.
    As to the matter of an immediate tipping point they say:
    “In the short- to medium-term, the health impacts of climate change will be determined mainly by the vulnerability of populations, their resilience to the current rate of climate change and the extent and pace of adaptation. “
    A 2019 report in the Lancet has been touted as being the new touchstone; however, an examination of the title to the report repudiates this attributed sanctity. It runs thus:
    “Global, regional, and national burden of mortality associated with non-optimal ambient temperatures from 2000 to 2019: a three-stage modelling study”
    The chances of finding an optimal ambient temperature anywhere on this planet at any time in the history of this planet has always been remarkably slim. The way human beings have, historically, got around the problem is by adapting to circumstances, like inventing clothing. Be that as it may, the study found that 9.43 per cent of global deaths could be attributed to COLD and hot temperatures, with most deaths caused by COLD exposure.
    And this leads me to my final point: namely, if most deaths are being caused by cold exposure then it hardly makes sense to bring an immediate end to the use of fossil fuels when there is no viable immediate alternative. This is particularly so when we appear to be in the grip of another alleged scare in the form of an “energy crisis”. If one is going to ramble on about an alleged 6 billion or whatever death toll from alleged man-made global warming, then one should, also, factor into account the dystopian hellscape envisaged by activists. With no fossil fuels, no nuclear fuels and whatever, the death toll from cold exposure would probably well exceed anything which can be remotely attributed to anthropogenic climate change. I gather that the Office of National Statistics recently released statistics showing there were 13,400 more deaths in England and Wales in the winter period (December 2021 to March 2022) compared with the average of the non-winter months. Feel free to extrapolate this up to 2050 ! And this is notwithstanding the fact that the said hellscape would include the economic collapse of many countries, not least, those already in poverty. Try explaining that to said 12 year old !
    As I say, there are usually two sides to every argument !

  10. “Jolyon Maugham KC”

    Well, he is a Killer of Canids. Is he really the other sort of KC too?

    Can one become a “silk” just by being the right flavour of smarmy git? (Question entirely unrelated to the aforesaid, above-mentioned JM.)

    Oh, slaps forehead, I’m being dim. The “K” must mean Kimono’d. It would be rude to speculate on what the C stands for.

  11. Not your jurisdiction, blogger, but do you have any views on the Scots Lawyers who say they will boycott non-jury rape trials, or indeed on the whole imbroglio (or stramash, if you prefer)?

  12. While I understand the complexities surrounding the refusal to prosecute eco-activists discussed in this article, it is crucial to uphold the principles of impartiality and the rule of law in order to maintain the integrity of the legal profession.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.