David Perry QC’s decision to act in the Hong Kong prosecution of nine defendants on two charges of unauthorized assembly has come in for a great deal of criticism. This includes the current (Conservative) Foreign Secretary, a former (Labour) Lord Chancellor, and other legal luminaries, politicians and lawyers. The press reports, and comments garnered from various critics (who I sympathise with), do not give me a great deal of confidence that those commenting understand the facts or professional rules applicable, so I have naturally been looking into the issue. Is there a moral or professional ground for querying Mr Perry’s taking of the case? I think there might be but would go no further than that.
I should begin by saying that I am not as familiar as I ought to be with the troubles in Hong Kong, the background to this prosecution, or indeed the Hong Kong bar rules. So I offer some thoughts based on my preliminary research. I would welcome any comments, even more than usual.
On the moral argument, there are clearly concerns about China’s influence on the rule of law in Hong Kong, the challenges to democracy and, in particular, democratic opposition and the introduction of wide-ranging security law (see this published by the Bar Council which argues that the laws are contrary to the Rule of Law). There seem to be grounds enough for calling into question any decision to work with the Hong Kong authorities on prosecuting a case, one might be inclined to think, even before one puts into the mix China’s treatment of the Uighurs, with allegations of genocide being made with increasing force. The moral arguments also play into a professional obligation: the need to protect the rule of law and the administration of justice. For professional lawyers, this obligation trumps all others in situations of doubt.
It is worth underlining here some of the contrary arguments: this does not appear to be a prosecution under the new security law (see here, it seems to be 1995 public order legislation); Perry might argue the propriety of any prosecution and the rule of law is better protected by his engagement (his opponents that this is legitimising oppression not protecting the law); and it might be difficult to criticise him for working with a system which UK judges still participate in at the end of appeal stages. Interestingly, that ongoing participation seems to be in question, see here and this very interesting statement from Lord Reed in July (although I think there may have been cases since then where former SCJs sat, they were not as far as I am aware cases of this sensitivity).
One prophylactic against such criticism, the Cab Rank Rule, probably does not apply in this case. The Bar’s rules of conduct disapply the Cab Rank rule for foreign work. Mr Perry is not a member of the HK Bar but he is reported to be registered in some way. I do not know the impact of such registration, it is possible this does apply the HK Bar’s Cab Rank Rule, but this seems unlikely to me. The HK’s code applies to those admitted to their Bar, and then to those not so appointed but admitted on a particular cases. David Perry had to apply and the judge give permission for him to hear the case: at that point he would be bound by the rules of the Code not before that, unless registration also required adherence to the rule (para 3.2 here).
As prosecutor he is subject, I assume, to the HK Prosecutor’s Code which requires him to prosecute independently, and so on. David Perry has to be satisfied that he can and will, that the charges are one’s properly brought on the evidence and so on. The Code makes plain a prosecutor also needs to consider particularly carefully that it is a protest being prosecuted (para. 19.3) and also the risk of political discrimination (para 13a. of the UN guidelines, included with the Code at p. 53). Failure to do that would be professional misconduct. An interesting question is whether Mr Perry is actually the prosecutor taking these decisions, as opposed to their advocate, but whether he is or not, I think he needs to be satisfied of these things to participate independently.
The final argument is whether Mr Perry’s conduct, “is likely to diminish the trust and confidence which the public places in you or in the profession [CD5]” and in particular, under rC8, he is prohibited from doing, “anything which could reasonably be seen by the public to undermine your [his] honesty, integrity (CD3) and independence (CD4).” The concerns here centre, I believe, on independence, although there is a strain of criticism being made of Mr Perry which suggests his prosecuting is so palpably wrong as to connote a lack of integrity. A case based on integrity would have to grapple with the debate about what integrity means, which to paraphrase tends to centre on quasi-dishonesty or serious disregard for professional standards (here perhaps the case would be that there had been a flagrant disregard for an obligation to protect the rule of law).
The Guidance emphasises the need to be able to “maintain your independence from external pressures”. It is not whether Mr Perry’s independence is actually compromised but what, “the public may reasonably perceive as undermining your honesty, integrity or independence [which] is likely to diminish the trust and confidence which the public places in you or in the profession,” that is determinative.
The examples the Code gives on independence deal with fee arrangements and gifts including, “The giving or receiving of entertainment at a disproportionate level”. Media comment is mentioned (implicitly warning against a Barrister compromising their independence in speaking up for a client inappropriately, an analogue here might be the risk of his external reputation being used to legitimise the prosecution, but one would need to link that to a perceived compromising of independence or integrity). The guidance makes plain that the examples are not exhaustive, so the unusual nature of this case, which has no analogue in the examples, is not a bar to it falling under the rule.
An interesting question to pose is which public do the rules refer to: is it Hong Kong (China even?), the UK or both? As the rule aims to protect the profession’s reputation I assume it is both. The tenor of the cases that I have been able to find (see here and cases referred in it) is that the matter does not need to have or be likely to attract public interest, nor that one actually needs to find out what the public thinks, but that the disciplinary tribunal will decide for itself whether a reasonable, objective member of the public was likely to be perceive Mr Perry’s integrity or independence as being undermined [such that it] is likely to diminish the trust and confidence which the public places in him or in the profession. This seems to me to be arguable, in the broad context and moreover for a case brought against pro-democracy protestors, but I would want to understand the Hong Kong situation and the case much better before I engaged further with that argument.
That said, I can well imagine a regulator contemplating investigation or a tribunal adjudicating them being wary of such arguments. The reason for that is whilst the rule aims to protect the profession’s reputation the rule is there to bring cases against those who’s conduct is considered to pose a risk through their fitness to practice. An argument for Perry might say, this is a professional judgment in highly difficult circumstances, where he felt he could support the rule of law through his participation, and that whilst there are arguments on both sides, those who come down against him are arguing a its highest a political call rather than a professional misjudgement, a bad or really bad call rather than misconduct. I don’t really buy the argument that the decision is merely political, professional obligations are patently in play both in relation to this particular case (can it be prosecuted fairly, is it political discrimination) and the general situation (is this part of a broader strategy of undermining the rule of law, should I lend my own and my profession’s reputation to this). The test in disciplinary terms is whether the decision to take (or continue with it) the cases involves, “sufficiently serious misconduct in the exercise of professional practice such that it can properly be described as misconduct going to fitness to practise.” Is the decision to take the case sufficiently serious? Again this might turn on the particulars of the case and the situation in Hong Kong. To an outsider, with limited understanding, the situation in Hong Kong looks very bad, and calls the judgment into question, but whilst it might amount to misconduct I would need to know significantly more before saying I thought it did.