Cab Rank Rule – What is it and why is it important?

This weekend, a significant kerfuffle has been caused by a declaration signed by around 120 ‘lawyers’. The undersigned would not provide their services in the prosecution of climate change activists. The response from many barristers has included the term, “cab rank rule“. It is clear that many have no idea what the term means or know why it is crucial to the independent Bar. In this article, Benjamin Knight, provides a rough guide to this regulation and its place in both defence and prosecution representation.
Benjamin Knight

In the days before Uber and Lyft, there were few options for hailing a taxi that wasn’t the iconic Austin FX (or similar) “black cab”. If they were in a rank outside a train station or on the high street, the rule was that you would approach the one at the front and – in theory – they would take you wherever you needed to go for a fee determined by law. Of course, there were those drivers who would not “go south of the river” or do an airport run. These days, the front cab in the rank might tell you that they don’t take cards or that their card machine has coincidentally “stopped working” – when the journey sought is unattractive for reason. The rules were sometimes circumvented but were generally there to protect consumers and to keep towns and cities moving.

The Cab Rank Rule explained

The Bar of England and Wales is regulated by the Bar Standards Board and within the Code of Conduct that applies, the “Cab Rank Rule” (CRR) is set out clearly.

It tells barristers that, if they receive instructions from a professional client (i.e.; a solicitor in most scenarios but also some other types of legal entities) and the instructions are appropriate taking into account the experience, seniority and/or field of practice of the barrister they must, subject to some exceptions, accept the instructions addressed specifically to them, irrespective of :-

a) the identity of the client;

b) the nature of the case to which the instructions relate;

c) whether the client is paying privately or is publicly funded; and

d) any belief or opinion which the barrister may have formed as to the character, reputation, cause, conduct, guilt or innocence of the client.

That is fairly clear and understood by those who practise at the self-employed Bar but there are exceptions to which I will turn shortly.

What about solicitors?

The cab rank rule did not apply to solicitors until the Courts and Legal Services Bill, under the Thatcher government. The Bar lobbied the House of Lords to amend the bill to introduce a cab rank rule (of sorts, at least) for solicitor-advocates. The House of Commons added exceptions for them, which effectively nullified the new rule before it ever bit. Then the relevant section of the Act was repealed completely. That was the end of that.

The criminal Bar and the Cab Rank Rule

Before I set out the exceptions, it is sensible to consider why the basis rule exists at all. I will focus on the work of the criminal Bar simply because it is my main field of expertise and it is the field in which the current argument has erupted.

Every criminal barrister that has ever donned a wig will have heard the same question: “How do you represent somebody who you know is guilty?” The question has a straightforward answer: “If I know they are guilty because they have told me so, I cannot suggest otherwise to a court. I can test the evidence. I can enter a plea in mitigation, if they plead guilty. Otherwise, I will be required to walk away and somebody else will deal with the case and the accused will have to decide whether to make that confession again.”

The next question that criminal barristers hear all the time is: “Yeah, but what about [insert deeply unpleasant, disturbing, emotive etc. type of offence]?  I don’t know how you could do that!” Again, the answer is pretty straightforward: “People must be defended properly because of two good reasons.

  1. They may not be guilty – that happens all the time. You hardly ever hear about it as the press almost never report acquittals.
  2. If they are found guilty by a jury/bench without fair, proper, lawful due process, odds are they will appeal and may “get away with it”. Fair trials are the reason those who are locked-up stay locked-up and are just as important for you sleeping safely at night as police, judges, juries, the CPS, prosecution advocates.”

Of course, you will have in your mind some offences in mind when reading that last paragraph. Sexual abuse (especially of children), rape, human trafficking, aggravated burglary, torture, terrorism… The list is long and will vary according the views of those asked but these usually get top billing.

Now consider this: if barristers could simply pick and choose which cases they wanted to do based on their feelings, there would likely be very few volunteers for the nastiest of offences. You may think, “So what? Let these vile people rot! Why should we waste public money on la-di-da lawyers for them?!” Reading the headlines and opinion pieces in the press, you’ll all have examples in your minds where you are encouraged the believe that “X pocketed £X,XXX,XXX in Legal Aid fees as fat cat lawyers get rich defending [nonce/pervert/fraudster]“. Boils the blood, doesn’t it?

The thing is – if you have been paying attention in recent years – you’ll have realised that those who defend on the public’s pound are the worst-paid barristers and solicitors.  Oddly enough, those same people are no better-off when they prosecute these cases as the Government has still not kept their end of the deal in upping those fees.

The media and government spin context

You may also have realised that every headline encourages you to picture some “crim” stuffing your bank notes into their grubby pockets. They always use “pocketed”, “bagged” or “trousered” in those stories. Obviously, nothing of the sort happens. In fact, in most cases, the defendant is paying a contribution to the Legal Aid Agency (which does not find its way to the lawyers in their case) and the lawyers are paid on derisory rates of pay that frequently dip below the equivalent of the minimum wage. Look at the state of this rag - Cab Rank Rule

There’s a bigger problem though. If lawyers were choosing the types of cases they do/do not fancy doing, the lack of available lawyers for those cases would cause those serious allegations of rape etc. to wait in a queue for trial that would extend much farther than the already-scandalous two or more years. As it stands, the criminal Bar has been cut down by attrition such that there are not enough defence counsel, prosecution counsel, or judges. The same is true of solicitors – there are areas of the country were there are no police station representatives for ~50 miles. The average age of solicitors in the magistrates’ courts is over 49 – in some areas, more than 74% are over 50. They are unable to recruit fresh blood from a pool of debt-ridden graduates who know that they would take a career just to break even.

The rule applies to publicly-funded work (as above) but also to privately-paid work. In privately funded cases, the CRR still applies, but the barrister may negotiate their fees directly with the client or the instructing solicitor. The rule requires barristers to accept cases at their standard or advertised fees, subject to some exceptions.

What about the prosecuting barristers?

The fuss this week has all been about barristers “refusing” to prosecute according to their beliefs – and maybe more than a little public posturing. Are they in a different position? Does the CRR apply to them?  A simple answer: yes, it does.

It may be worth stating the obvious here. Many members of the public are unaware that the vast majority of the independent criminal Bar prosecute and defend. We are, in that sense, guns-for-hire.

If a self-employed barrister receives proper instructions from the Crown Prosecution Service (or some other prosecuting agency), if they have the experience, seniority and/or field of practice, the barrister must, subject to a few exceptions, accept the instructions addressed specifically to them.

The Crown Prosecution Service decides who it will instruct based upon an approved list of barristers who say that they wish to be considered for prosecution work. Those barristers are assessed on paper to see what level of work for which they are suited (based upon knowledge, experience, reputation etc). There are lists for those who apply and are suitable for specialist categories of work. If your name isn’t on the main list, you are not able to prosecute for the CPS.

The Exceptions

There are some exceptions that relate to instructions from overseas lawyers etc and so I will not get into those (as they almost never have any place in criminal law). Broadly-speaking, the exceptions that might apply to criminal barristers are:

  1. Conflict of interest: A barrister cannot accept a case if it would create a conflict of interest with their existing professional or personal obligations.
  2. Lack of expertise: If the case falls outside the barrister’s area of expertise, they are not obliged to accept it under the cab rank rule.
  3. Unavailability: A barrister may decline a case if they are genuinely unavailable due to scheduling conflicts or other commitments.
  4. Improper instructions: If the instructions given by the client or solicitor are unethical or illegal, the barrister may refuse the case.
  5. Fee dispute: If the fees offered are significantly below the market rate or the barrister’s standard fees, they may decline the case.

In addition to those summarised exception, there are some less common exceptions that warrant a mention. If the barrister’s PII isn’t sufficient to cover the level reasonably required for the work, or if the barrister is a ‘silk’ where they would not be allowed a junior where one would reasonably be needed to accept the instructions, they may refuse the instruction. There are some additional exceptions where a professional client is involved and poses an unacceptable credit risk.

Then there are the ‘not a proper fee’ exceptions. The fees of the Legal Aid Agency are not considered to be a ‘proper fee’ in many circumstances – as they are recognised as being derisory for the amount and level of work required for publicly-funded work. Other than legal aid work, deciding what is or is not a proper fee involves assessing the complexity length and difficulty of the case; the barrister’s ability, experience and seniority; and the expenses which they will incur. See the Code of Conduct for the full list.

That may sound like a lot of exceptions but, in the day-to-day of life at the criminal Bar, the exceptions are not often engaged or utilised. Barristers tend just to “get on with it”. The reality is that clerks are very good at allocating work to the people to whom the work is best-suited and who are available. If the instructions come to chambers without a specific barrister’s name on them, they have a greater latitude. If there is a named barrister on the brief, they will allocate that work to that barrister, if they are available and competent for the task in hand.

It is also true that many self-employed criminal barristers are not commonly in the habit of booking lots of fixed holiday dates. As a result, clerks will check whether the gap that they may have in their diary is to be filled with court work or left for paperwork, holidays, teaching, CPD and the like.

It is also worth noting that professional clients (solicitors, generally) and clerks will know the right tool for the job, so to speak. For example, it is often felt that sending a KC (or even a more senior ‘junior’ barrister) to do a section 172 road traffic case in ‘Mudchester Mags’ is possibly less likely to secure the desired result than sending somebody who spends much more time in their local magistrates’ court, knows its inhabitants, has experience of the local Bench etc.

The “120 lawyers” list

The list of names that has caused the fuss this week contains an overwhelming majority of lawyers who are not qualified to prosecute and/or are not registered with the CPS to prosecute. Accordingly, despite what may be noble intentions or a ‘bit of PR’ (take your pick), it is much like me declaring that I simply will not undertake brain surgery for private hospitals because I am against private healthcare. I’m not a medic or surgeon. I wouldn’t know what I was doing. I have no insurance for that role. I’m not brilliant with blood (unless it’s in horror films or crime scenes). It is a nonsense. It has been an excellent way of getting people talking about the crucial and timely issue of climate change. However, many lawyers (including me) feel that the Bar has unnecessarily been collateral damage to that campaign. Let me try to explain why.

The damage done

The public’s perception of lawyers has never been entirely accurate. This past decade has seen active and deliberate campaigns to increase the hatred of lawyers and judges by politicians and their media mouthpieces. Think about the judges who are “Enemies of the People” (for doing exactly what the government has required them to do) or the “Fat cat lawyers” (who had to strike for the first time in their 400+ year history just to prevent the entire system collapsing). Read The Secret Barrister’s excellent books for countless examples and much more eloquent exposition of that subject. They even turned on their own!

Sadly, this bit of activism has resulted in the media and social media erupting with snark, rage, sarcasm, and derision based upon a misunderstanding of the CRR, a wilful mis-characterisation of the CRR, and a new front in the confected ‘culture wars’ opening. Some are engaging in the most contorted moral relativism whilst others are simply name-calling. The harm done to the junior-junior Bar is palpable. Shortly after many risked their livelihoods simply to be paid something marginally closer to what they deserve, they are now being pilloried by civil practitioners, senior academics, retired lawyers in various fields, and monstered by the more obscene end of print journalism. It has the feel of people in a place of privilege, punching down. Telegraph in nonsense hot take shocker - Cab Rank Rule

The result: a public perception of lawyers as hypocritical money-grabbers, devoid of principles. The reality: one could not practise criminal law without principles and would not practise criminal law if it were all about the money.

I am seriously concerned about the environmental impact of fossil fuel exploitation when alternatives now exist. As a good friend used to put it, “The science will work. The rest is just economics!” I am immensely proud of my former pupils and peers who fearlessly and rigorously defend protesters. I have defended many a person’s right to say things with which I do not agree. I have prosecuted a fair few of the latter, too.

Without the decent thorough, professional, and principled on both sides of the courtroom, we will all be complicit in the shattering of our already-chipped criminal justice system.

Educating the Public

One of the lessons from this recent kerfuffle is the need for better education and understanding of the legal system, including the role of the Cab Rank Rule, among the general public. Misconceptions and misinformation can lead to negative public opinion and mistrust of the legal profession, which can be damaging to the justice system as a whole.

Legal professionals, law schools, and organizations should make efforts to educate the public about the importance of the Cab Rank Rule and other fundamental aspects of the legal system. This could be achieved through media engagement, public talks, and educational resources.

By promoting a better understanding of the legal system, we can help foster greater trust and respect for the rule of law.