Of Cab Ranks and Terrorists

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The legal system of New Zealand operates according to what is known as the Cab Rank Rule. Barristers – the lawyers who represent you in court – are tasked with representing anyone who comes to them and is willing to pay their (normal) fee. It doesn’t matter if you think the client is a terrible waste of space who is guilty as Hell – you have to represent them to the best of your abilities, with the strongest possible defence (or at least strongest possible defence that is consistent with your additional role as Officer of the Court. No lying).

Public misunderstanding of the Cab Rank Rule has led to prominent defence lawyers being the target of (misplaced) abuse. They get pelted with outrage and cries of “how could you possibly represent that monster?!” In reality, of course, they are simply performing an important social role – that of ensuring that everyone gets a fair trial. The job of a defence lawyer isn’t actually to get people off, but rather to make sure that the System and the Prosecution have done their job correctly, and that any defence is pursued with the utmost vigour. If this results in guilty people walking free, then so be it – the failure rests with the Prosecution to make the case, not the Defence.

The Cab Rank Rule is, understandably, drilled into law students… which is why my local University of Otago decided to ask a question on it in a recent examination.

The question asked about the ethics of a lawyer (via the Cab Rank Rule) having to represent a terrorist who attacked their place of worship.

Oh dear.

Now, I can understand both sides of the issue here. On one hand, the Cab Rank Rule is a cruel mistress – if it means you have to represent the Christchurch shooter, then so be it. Law is law, and all that, and the very worst scum are entitled to the same legal rights as any other accused – it is for the jury to decide guilt, not the lawyer. On the other hand, I don’t think testing the Cab Rank Rule in an examination necessarily requires such a close conformity to March’s events. One could concoct a question that draws on older (and thus less sensitive) events, or maybe something out of fiction. Asking such a topical question plays into the very real trauma of those with close family connections to the March attack (one student apparently lost their cousin) – and, quite apart from the morality of putting someone through that, it would also impact their ability to answer the rest of the examination. Which is an added level of unfairness.

One may then raise a couple of counter-arguments. A prospective defence lawyer won’t be dealing with old or fictional events in the real world – they will be dealing with current events, no matter how raw they may be. Moreover, if one seeks to avoid student trauma in examining the Cab Rank Rule, where does one stop? For all the examiner knows, their hypothetical might match someone’s reality.

In answering these points, I would point out that the chance of one of these students ever having to represent someone like the Christchurch shooter is minimal – in that sense, such a question does less to prepare a law student for the real world than (the far more likely) case of having to defend a repeat drunk driver. Sure, one (or more) students may have lost family members to a drunk driver – but they would be aware (via lectures and tutorial examples) that drink driving is a common go-to question. It is within the bounds of the normal, and can be prepared for – a student distressed at the subject will have raised their issue with teaching staff long before the final examination. Asking terror victims about defending a terrorist in a country where such an event is profoundly abnormal… that is a nasty shock to find in your examination paper, where you are encountering it for the first time.

(I should also note that, in practice, there are a couple of work-arounds for the Cab Rank Rule: one can excuse oneself from the case on the basis that you are busy, or lack the appropriate expertise. In a real-world situation, if emotions are simply too much, one or other of these excuses can get trotted out).

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On balance, while I understand what the examiner was trying to do – they certainly weren’t trying to be malicious – I think it was a mistake to ask this sort of question in an examination, and the formal apology was probably warranted. Contrary to what some may think, this is not a matter of “snowflakes” having their feelings hurt, but a very complicated issue that could have been avoided with a more tactful choice of question. The Cab Rank Rule does apply to the Christchurch shooter too, of course, but an examination is about testing knowledge in a formal setting, not about screwing with students’ emotions.

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