What The "Cab-Rank Rule" Means To Barristers

There has been much public debate on the application of the cab-rank rule, which refers to a principle that prevents barristers from refusing work that they are competent and experienced to undertake because they disagree with the actions and/or views of those seeking representation. Barristers also receive some public ridicule and speculation for "defending someone who is guilty". It is worth noting that to provide legal services is not to necessarily clear an individual of all charges, but instead to assist in mitigating the outcome and providing the best possible advice within the circumstances.

The cab rank rule represents an important pillar of the justice system, and is central to the ethos of barristers and practise. However, a recent pledge by over 120 lawyers not to prosecute climate activists nor to provide legal services to fossil fuel companies has challenged this view and caused much debate on whether the rule should be abolished. 

Contained within the Bar Standards Handbook, produced by the Bar Standards Board who are the regulatory body for barristers within England and Wales and which outlines the rules about how barristers in England and Wales must behave and work, the cab-rank rule is outlined as follows:

"If a barrister receives instructions from a professional client, and the barrister is either self-employed or any individual authorised by the Bar Standards Board, and they are appropriately experienced to deal with the instructions, then they must accept the instructions regardless of whether the case is being paid privately, or it is publicly funded, the identity of the client and the nature of the instructions, and any opinion they hold of the client".

However, a barrister does not have to accept every instruction to provide services due to the fact that there are a few exceptions to the cab rank rule. Under the following circumstances, a barrister does not have to accept the instructions -

• If the barrister has a prior commitment, such as another case in the diary, or they do not have the time to deal with the instruction, which would not be in the best interests of the perspective client.
• If there is a conflict of interest between the personal interest of the barrister and the prospective client, or between the prospective client and a former/existing client of the barrister.
• If, due to information the barrister holds about a former or existing client, the barrister would not fully be able to work in the best interests of the prospective client.
• The instructions provided affect the barrister’s authority in the conduct of proceedings, or they would require them to go against the law, of their Handbook. Additionally, the instruction does not have to be accepted if it would affect the barrister’s independence.
• The barrister cannot perform the work required by the instruction, or they are not experienced enough.
• If the potential liability for professional negligence exceeds the level of professional indemnity insurance available for the barrister to accept.
• If the barrister is a KC (member of the King's Counsel), and the instruction would require them to act without assistance of a junior, where the best interests of the client demands a junior should also be instructed.
• If the instruction involves any foreign work, or would require the barrister to act on behalf of a foreign lawyer.
• If the professional client are instructing the barrister in a private capacity, rather than a professional capacity.
• If the professional client will not accept liability for the barrister’s fees, or if they, in the opinion of the barrister, are an unacceptable credit risk.
• If the barrister has not been offered a proper fee.
• If the barrister’s fees have not been agreed, if the barrister does not receive up-front payment in full, where requested, or if the barrister’s acceptance of any instructions would require them to act outside of either their own standard terms of work, if they own standard terms are not provided.

The purpose of the cab-rank rule is to uphold access to justice, the rule of law, and the right to legal representation which are all key foundations of the English legal system. To abolish this rule is argued to threaten these cornerstone principles. If such a rule was to not exist, those guilty of the most shocking crimes may be left unrepresented. For example, this occurred in the 1970s when the perpetrators of IRA attacks in Britain struggled to obtain defence counsel. In this instance, the cab-rank rule was invoked by the Bar to remind its members of their professional duties to accept instructions, even in circumstances when the case would be seen as distasteful.

Despite the fact that the cab-rank rule represents a fundamental bedrock of the English legal system, there are some opposing views to it upholding access to justice. Demonstrating this point is the viewpoint of Alasdair Darroch, a former solicitor advocate and retired circuit judge, who argued that the cab-rank rule represents an easy way for barristers to "evade" the professional obligation to represent everyone by simply saying they are "too busy".

Additionally, the link between access to justice and the cab-rank rule appears very weak when considering the number of unrepresented defendants who pass through the courts system each year. There is a lack of clear statistics about how many people lack representation during trials each year, but there are estimates that highlight the scale of the problem and therefore argue against the promotion of access of justice. For example, The Centre for Public Data said that estimates for unrepresented defendants in the magistrates’ courts range from 13-30 percent. In the Ministry of Justice’s most recent quarterly statistics for the family courts, the proportion of cases where both parties had legal representation was down to 18 percent (for the period of July to September 2022). These figures demonstrate that despite the existence of the cab-rank rule, lack of representation is still a prominent issue within the courts system.

Throughout the course of these public legal debates, it can be seen that although the abolition of the cab-rank rule has been considered, it has not been accepted and therefore it appears that the principle is here to stay within the English legal system.