• 風雨如晦 黃藍不避|戴啟思
  • 2020-01-15    


‘In doing what we ought we deserve no praise, because it is our duty.’-St Augustine

Just doing your job to the best of your abilities should not usually land you in trouble. One exception to that rule is acting as a lawyer sometimes.

John Cook was an English lawyer who got into the most serious trouble imaginable for doing his job conscientiously.

Cook was born in 1608, and he was called to the Bar in 1631. He was a radical lawyer and he supported the Parliamentary cause against King Charles 1in the English Civil war in the 1640s. He became one of the Government's top lawyers in 1649 when he was appointed Solicitor-General in the Republican Government that was established with the deposition of the King.

What did for John Cook was his principled professionalism. At the end of 1648, Oliver Cromwell and other Parliamentarians had decided to establish an ad hoc court to try King Charles for treason. The self-appointed judicial commissioners needed someone to prosecute the case against the King. Several lawyers turned down the brief, but John Cook reasoned that a lawyer should not pick and choose his cases if he had sufficient experience in the particular area of the law which the matter concerned. He took the brief.

Cook prosecuted Charles1 successfully with the consequence that the King lost his head to the axe man. Cook continued with the law and became a judge in Ireland in the 1650s.

Unfortunately for Cook, in 1659 the English tired of the flirtation with a Republican government. The Establishment asked the son of the executed King, also a Charles, to return from exile and rule over them. King Charles II agreed and, sensibly, offered an amnesty to those of his new subjects-and there were thousands of them- that had treasonably fought against his father as the price that he had to pay for coming home to assume the throne.

There were limits to the new King's generosity though. He excluded from the general amnesty the men who had tried and condemned his father and also other people involved in the trial process. The name of Cook was amongst about a hundred excluded names.

Cook was tried for treason in October 1660. His defence was a bold one for the time. He argued that when he prosecuted the King, he appeared before a properly constituted court applying the law of a radical Parliament that was then the legitimate Government of the country. He was only doing his job as a properly retained lawyer using the law of that time.

A record exists of his defence plea.

‘He urged that having acted only as counsel, he was not answerable for the justice or injustice of the cause he had managed; that being placed in that station by a public command, it could not be said he acted maliciously or with a wicked intention, as the indictment mentioned; that words spoken do not amount to treason, much less when set down in writing by the direction of others;...’

These words did him no good before a judge anxious to establish his credentials as one of His Majesty’s judges. He was convicted and sentenced to die a traitor's death.

This form of execution involved half-hanging the prisoner, followed by castration and disembowelment and then burning the innards before the dying man's eyes. Death came with the executioner ripping out the heart. The head was then severed, and the body was then cut into pieces for public display along with the head. It was a heavy price to pay for mere advocacy.

Just over a hundred years later, another English barrister faced another kind of pressure for doing his job as a barrister. Ripping out his entrails, severing limbs and beheading were not the issue but keeping his livelihood as a barrister was.

Thomas Erskine was an up and coming barrister in 1792. His professional services were sought to defend a political radical, Thomas Paine.

Paine had written a best-seller called 'The Rights of Man' which proposed that people had the right to get rid of a government which trampled on their natural rights and freedoms. Publication of the book coincided with the bloody days of the French Revolution and the British Government saw Paine as someone who would encourage revolution. The Attorney General, therefore, charged Paine with seditious libel which made it an offence to publish anything that would bring the Government of the day into hatred and contempt.

Paine got wind of the intended prosecution and fled to France where he secured an elected position in that country's National Convention and thereby proved that he was a hardened revolutionary.

The Attorney General decided that he would try Paine in his absence. The friends and professional colleagues of Erskine urged him to turn down the case. It would be professional suicide to represent a man who was so hated by the Establishment and by many ordinary people. His work would dry up because he was the voice of a bloody revolutionary.

Erskine accepted the brief. He later told the jury in the trial of the pressures brought to bear on him to give up on Paine and leave him unrepresented.

What he said to them should be on the desktop of every criminal barrister as it applies to every jurisdiction that purports to have an independent legal profession.

"From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the court where he daily sits to practise, from that moment the liberties of England are at an end."

Erskine lost the case but his reputation as a fearless advocate soared and he was not short for work and even became the top judge, the Lord Chancellor, fourteen years later.

This commitment to providing representation to clients whose personalities or, more frequently, their political beliefs, are unpopular is a part of the Hong Kong Bar's Code of Conduct.

A barrister must provide his professional services to a client if they are sought. The Bar can excuse the barrister if he or she is not available or if the case is not within their expertise, but grounds for not representing a client when called upon the need to be made out by the barrister. In these troubled times it is as important a duty now as ever it was.

The protection afforded to the barrister who represents unpopular clients as a matter of professional duty is that no one, whether a government, public body or another legal professional, should penalise the barrister for representing that client. That is only fair.

The United Nations 'Basic Principles on the Role of Lawyers' incorporates what can be called the 'non-retaliation' principle. Paragraph 18 of that document states that 'Lawyers shall not be identified with their clients or their clients' causes as a result of discharging their functions.'

Unfortunately, statements of principle do not, without more, protect lawyers from retribution for just doing their job. There are many examples of lawyers being harassed and bullied and even imprisoned for following the example of Thomas Erskine. And you do not have to look very far to find them.

I hope that in the coming months when cases arising from the protests begin to arrive in court in significant numbers that the non-retaliation principle will be recognised and that no lawyer will suffer for doing what is, after all, a professional duty. Chip away at that principle and you damage one of the foundations of our justice system.

About the author

Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.

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Left to right: John Cook and Thomas Erskine


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