We refer to:
- the 21 September 2022 letter from the Bar Standards Board (“BSB“) to Colours Caribbean entitled ‘Report about Dinah Gwen Lison Rose QC’ confirming the BSB‘s response to Colours Caribbean in respect of its complaint, a copy of which can be accessed here (the “BSB‘s Report”);
- the 22 November 2022 press release of the BSB entitled ‘Statement concerning Dinah Rose KC’ published on the BSB‘s website, a copy of which can be accessed here (the “BSB‘s Statement”);
the 23 November 2022 press release of The Bar Council (the “BC“) entitled
Bar Council comment on the BSB handling of the report relating to Dinah Rose KCpublished on the BC‘s website, a copy of which can be accessed here (the “BC’s Statement”);
- the BSB Handbook, Part 2: Code Of Conduct, a copy of which can be accessed here (the “BSB Code”);
- the public statement made by Dinah Rose KC dated 27 January 2021, a copy of which can be accessed here (the “Public Statement”); and
- the “JCPC Respondents Form” dated 25 March 2020, a copy of which can be accessed here (the “Respondents Form”).
We also provide, for background, a table at the end of this open letter summarising the steps taken by our charitable organisation that ultimately led to issuance of the BSB‘s Report.
You will see that it took Colours Caribbean a total of 595 days (from initial contact with Blackstone Chambers, through to escalation to the BSB) to get an answer to its key question; of those 595 days, the BSB itself took 492 days. Our key question was, in summary:
- whether the ‘cab rank rule’ (rC29-rC30) of the BSB Code applied to the Privy Council brief; and
- if it did not (which was Colours Caribbean‘s view), whether any action would be taken under the BSB Code against Dinah Rose KC for wrongly stating it did apply in the Public Statement, as the basis on which she was bound to take instruction notwithstanding she had already been elected at point of instruction as next President of Magdalen College.
The BSB‘s Report indicated that Dinah Rose KC had not been held by the BSB to have breached any aspect of the BSB Code as a result of her Public Statement and, hence, no action would be taken against Dinah Rose KC, i.e. limb (ii) of our key question was negative.
However, a plain English reading of the BSB‘s Report did indicate limb (i) of our key question was answered by the BSB in the affirmative, i.e. that the cab rank rule did not apply in the circumstances. We do not need to remind you of the content of the BSB‘s Report of course, but since this is an open letter we set forth below for the benefit of other readers one or two relevant comments made therein by the BSB (emphasis added):
Whereas before the Independent Reviewer took the view that Dinah Rose QC was not acting for a foreign lawyer but for a foreign client, it is now accepted that there is information that a different interpretation of this may be necessary. That is, that accepting instructions from a foreign lawyer would have brought the Dinah Rose QC within the exemption at rC30.6 and meant she could, in principle, have declined the instructions to appear in the Privy Council proceedings.
In relation then to the public statement, it appears therefore, it may have been incorrect for Dinah Rose QC to say that,The cab rank rule applies to the Privy Council brief. As an instruction to appear in a court sitting in England in an area in which I was expert, received when I was available to act, I was obliged to accept it…
We assume the reason the Independent Reviewer changed their view was because the Respondents Form, seeking to instruct each of Dinah Rose KC, Sir Jeffrey Jowell KC and Timothy Parker, indicated that the instruction came solely from a foreign lawyer.
In light of this outcome set forth in the BSB‘s Report dated 21 September 2022, Colours Caribbean proceeded to consider whether to share the information with the public in a press release. Colours Caribbean was conscious of the profound public interest and concerns, raised in Oxford and further afield that were generated by Dinah Rose KC accepting the Privy Council instruction, which led to her Public Statement. The Public Statement in which, it would seem in light of the BSB‘s Report, was wrong with respect to applicability of the cab rank rule.
After that careful deliberation over the course of one month, taking into account, in particular, that:
- at the time of Dinah Rose KC deciding to accept the instruction:
- The Cayman Islands Government had legal representation from another KC from Blackstone Chambers, being one of the UK’s most eminent lawyers and expert in human rights with experience of constitutional drafting and constitutional relationship between the UK and its overseas territories (see: https://www.hertford.ox.ac.uk/staff/jeffrey-jowell), together with a junior colleague from Blackstone Chambers. This meant Dinah Rose KC would be a third member of the team instructed for the Cayman Islands Government acting against the same-sex couple. In other words, it was certainly not the case that the Cayman Islands Government would be left without legal representation;
- The Cayman Islands Government had already successfully overturned the first instance Grand Court judgment of the Chief Justice of the Cayman Islands that resulted in same-sex marriage in the Cayman Islands no longer existing;
- Dinah Rose KC had already been elected as next President of Magdalen College and was presumably committed to and fully aware of the role and its responsibilities: contractual, pastoral and statutory; and
- the Independent Reviewer’s view, as stated in the BSB‘s Report, was that
as a senior barrister she could be expected to be aware of the cab rank rule and its operation in practice. Taking this at its highest, this might possibly amount to evidence of recklessness,
on 20 October 2022, Colours Caribbean issued a press release regarding the BSB‘s Report. It is noteworthy that members of the press contacted the BSB prior to publication in the press and the BSB confirmed that the Colours Caribbean press release was “an accurate reflection of the finding.”
Notwithstanding all of the above, Colours Caribbean wishes to emphasise that, consistent with Mark Fenhall’s sentiments expressed inthe BC’s Statement, it too was shocked to find out that Dinah Rose KC had not been consulted in regards to the BSB‘s Report. However, Colours Caribbean, as a charitable organisation representing vulnerable LGBTQIA+ people throughout the Caribbean region, wishes to note the following to the general public and the UK legal profession in regards to the BSB‘s Statement and the BC’s Statement:
- we cannot be held responsible for any perceived failings in process, by Dinah Rose KC or by The Bar Council, in respect of the BSB handling of our compliant and the articulated content of the BSB‘s Report;
- we simply followed the same approach in accordance with published rules and procedures as any other complainant with a grievance, that grievance was taken up by the BSB, as the relevant regulator, and was processed by the BSB;
- we were astonished that it took such an enormous amount of time and effort on Colours Caribbean‘s part to get an answer to our key question, involving multiple submissions over a total cumulative period of 595 days;
- we are dumbfounded that it took the BSB just one business day only to address Dinah Rose KC’s complaints following The Times reporting of Colours Caribbean‘s press release;
- we are dumbfounded that, given the apparent significance placed on rC28 of the BSB Code in the BSB‘s Statement and (it would appear) the BC’s Statement issued subsequently, rC28 was never raised or mentioned in the Public Statement of Dinah Rose KC;
- we are dumbfounded that for similar reasons the BSB never mentioned rC28 in the 492 days it took to get a response to our key question;
- we note that Colours Caribbean was not contacted by the BSB, as claimant, before the BSB Statement or after the BSB Statement to clarify whether the answer to limb (i) of the key question per the BSB‘s Report still stands;
- in regards to the point immediately above, this is despite Colours Caribbean having contacted the BSB on 23 November 2022 to seek clarification and offering very small amendments to the BSB‘s Statement to help avoid the public and the profession being confused;
- we note that the BSB‘s Statement did not rescind or retract the BSB‘s Report, but, to the point immediately above regarding confusion, did state both the cab rank rule and rC28 are relevant “when deciding whether to accept the instructions”; and
- we note that, in light of the point immediately above, following the BSB‘s Statement there has been much discussion by barristers that suggests a view is forming that barristers must accept a foreign lawyer instruction (due to rC28) regardless of the cab rank rule not applying by virtue of the relevant exemption under rC30.6, which the BSB‘s Report had indicated was the case in this instance. This could lead to accusations of discrimination by a foreign lawyer under rC28 being used to force a UK barrister to take what may be perceived as an abhorrent case to support, for example criminalisation of homosexuality, in circumstances where the UK barrister had a choice but not an obligation to accept because the rC30.6 exemption to the cab rank rule applied;
Accordingly, Colours Caribbean wants to know from the BSB whether the BSB‘s Report that it received after waiting 492 days still stands in respect of comments made regarding interpretation of the cab rank rule and answer to limb (i) of our key question. We further suggest, for the benefit of foreign lawyers of the Cayman Islands and elsewhere globally that seek to instruct a barrister in the UK—and importantly for the benefit of UK law firms, solicitors and barristers—whether a barrister (meeting the requirements of rC29) is compelled nonetheless to take a foreign lawyer instruction falling under rC30.6, due to obligations under rC28. It seems to Colours Caribbean that it would be obvious to make this clarification in light of the revised analysis of the BSB that took just one business day to consider and publicise, versus the 492 days for the BSB‘s Report that suggested differently.
Finally, please note that Colours Caribbean is considering its legal options. This includes having the matter reviewed by the High Court in London to ensure its complaint has been properly and fully handled, including, if now relevant in light of the BSB Statement, Colours Caribbean making its own submissions in regards to the applicability of rC28, a rule that had not been referred to at all in Dinah Rose KC’s Public Statement, but first arises last week in the BSB‘s Statement. As such, the contents of this open letter are therefore sent on a ‘without prejudice’ basis.
|Request Of Colours Caribbean
|Decision Received (And Date)
|3 February 2021
|Complaint to Blackstone Chambers and request for clarification as to applicability of cab rank to initial JCPC instruction.
Complaint “unsustainable” and “rejected.” No response to request for clarification re: cab rank.
(11 February 2021)
|14 February 2021
|Requested Blackstone Chambers for fresh adjudication for lack of procedural fairness (due to no opportunity given to see or address submissions by Dinah Rose KC et al).
(16 February 2021)
|17 May 2021
|Complaint taken up with BSB.
Complaint “not upheld.” No response to request for clarification re: cab rank.
(15 September 2021)
|13 October 2021
|Requested BSB to revisit their decision.
Agreed to refer to Independent Reviewer for consideration.
(14 October 2021)
|19 November 2021
|Submission made for consideration of Independent Reviewer.
Decision of BSB upheld following advice of Independent Reviewer.
(19 January 2022)
|14 February 2022
|Requested BSB to have Independent Reviewer revisit their advice (due to Independent Reviewer’s apparently flawed legal reasoning).
Agreed to refer back to Independent Reviewer for further consideration and comment.
(1 March 2022)
BSB’s Report issued to Colours Caribbean following Independent Reviewer’s further consideration and comment. BSB indicated that cab rank rule did not apply.
(21 September 2022)