There has been considerable agonising in legal circles over the propriety of David Perry QC, who had accepted a brief to prosecute pro-democracy protestors in Hong Kong. One of the defendants in the case is the 82-year-old barrister Martin Lee QC, the founder of a pro-democracy party in Hong Kong, who has been accused of taking part in an ‘illegal assembly’.
It seems now that Perry, who has refused to make any public comment since the story broke, has now withdrawn from the case. If so he has made a wise decision.
He is not the only lawyer who has had to wrestle with the ethical question of how close you should get to regimes that most of us would regard as disagreeable or even evil. It is certainly not only a question faced by criminal lawyers. Geoffery Nice QC, who has conducted a meticulous investigation into the widespread and horrific practice of organ harvesting in China, has been very clear: anyone – lawyer, doctor or businessman – interacting in any substantial way with the People’s Republic of China ‘should now be aware that they are interacting with a criminal state.’
Perry, of course, was not acting for the Beijing government, at least not directly. The case against him was that by agreeing to lead the prosecution of the democracy protestors he was providing a veneer of respectability to what is in essence a political prosecution instigated to curry favour with the Chinese government.
There were some who were ready to defend Perry. Some invoked the ‘cab rank rule,’ the principle that barristers should represent anyone who hires them. It is a crucial principle because if barristers were permitted to refuse representation to unpopular clients they would be substituting their own opinions for those of the court. But it does not apply to foreign work. Although Perry has conducted high profile prosecutions in Hong Kong in the past he was not a member of the Hong Kong bar and so was free to accept or decline the work.
Others argued that Perry would have brought an independence to the prosecution that could not be achieved by a local barrister who might be more susceptible to political pressure. But he is unlikely to have been engaged because of his perceived independence. A simpler explanation is that he was hired because he is a very persuasive advocate who tends to win cases.
Perry was subjected to strong criticism by some well-known lawyers. The barrister Helena Kennedy described his decision to accept the brief as ‘a source of shame’ and Lord Falconer and Dominic Raab – a solicitor before he became Foreign Secretary – both called on him to withdraw. Raab described Perry’s conduct as ‘mercenary.’
From the official voices of the Bar however, there was silence. No one spoke in his defence. No one criticised him either. The Bar Council said nothing. The Criminal Bar Association kept its own counsel. Even the Bar Human Rights Committee, which has regularly condemned Chinese behaviour towards Uyghurs and in Hong Kong, did not publicly criticise Perry for agreeing to lead the prosecution of pro-democracy protestors. It was almost as if they all hoped the problem would go away. It is, after all, far easier to criticise foreign despots than to criticise your professional colleagues.
And perhaps the awkward silence of the Bar Council is not altogether surprising given its own cosiness with the People’s Republic of China.
Only yesterday morning the new Chair of the Bar Council, Derek Sweeting QC hosted the UK-China Arbitration Summit – a three day online event aimed at British and Chinese commercial lawyers.
At the event, delegates were treated to a lecture from Shen Hongyu, described by Sweeting as a ‘distinguished judge’ of the Supreme Court of the People’s Republic of China. The entire lecture was 10 minutes of the kind of mind-numbing tedium in which high-ranking Communist Party apparatchiks specialise, sycophantically described as ‘wonderful and eloquent’ by another English QC helping to host the meeting.
Sweeting complained at the event that ‘some governments’ – he did not identify those he had in mind – ‘have used Covid-19 as a pretext to weaken the rule of law.’ A fair point perhaps, but it is rather undermined when you invite representatives from a state which runs concentration camps, harvests organs from prisoners of conscience and is continuing to destroy freedom and the rule of law in Hong Kong.
It can of course be argued that if we are going to do business with China, lawyers are bound to be involved. If a Chinese company claims it was defrauded by a British company and wishes to bring a claim in the High Court in London it would be unprofessional for an English barrister to refuse to accept its instructions. Under the cab rank principle, he or she would have no option. And no harm can come of British commercial lawyers simply talking to their Chinese counterparts.
But do the leaders of the profession really have to fawn over China, invite judges from their ghastly ‘People’s Courts’ to lecture us, and behave as if the grotesque and documented human rights abuses of the People’s Republic of China can be politely ignored? For the sake of the profession, I can only hope that British lawyers begin to review their relationship with the Chinese communist party.