The strange trial of Anders Breivik

Paul Mendelle, in The Guardian, argues that the Norwegian terrorist is undeniably entitled to a fair trial, but that a line has been crossed: Breivik is being allowed to use his trial to promote his twisted political views.

…one of the most fundamental rules of our profession, and what distinguishes barristers from all other advocates such as solicitors, is the cab-rank principle: we are obliged to act for our clients and we cannot refuse to act because the nature of the case is personally objectionable to us or to a section of the public, or because the conduct, opinions or beliefs of the client are unacceptable. It is enshrined in our code of conduct, and we fight hard to preserve it. That means that we cannot refuse to act for the sex offender who claims that the 11-year-old girl was sexually precocious and “led him on”, the antisemitic terrorist who says that the bomb in a public place was just a hoax, the demonstrators who want to kill a cartoonist, or the woman accused of torturing her baby to death. The rule applies whether the client is paying privately or is publicly funded.

And who would want it any other way? It’s not for us to substitute our opinion of guilt, still less our distaste or repugnance, for the judgment of the court. What kind of society would we have if barristers could choose not to represent defendants merely because they disapproved of their views? That’s a short route to a police state. How are the poor, the ill educated, the illiterate and the disadvantaged to defend themselves against the state with all its powers and resources if they cannot call upon advocates to guide them through the thickets of the law, to speak on their behalf, and put their case fairly before the court?


But while we are obliged to take our clients’ cases and to act on their instructions, we are certainly not obliged to act as their mouthpiece. Quite the contrary, the court is not to be used as a soapbox from which the defendant spouts political views. We are obliged to defend the man accused of racially motivated crime if he is adamant he is not guilty, but not if he wants to use us to justify his racist views. And if we did, the judge would stop us.

That’s why the Breivik trial seems so strange to the eyes of an English lawyer: because what is being proffered by Breivik does not appear in any legal sense to amount to self-defence. No individual has the right to resort to mass murder to defend his country, as he claimed when he concluded his ludicrous evidence. The court does indeed seem to being used by him as a platform for him to express his twisted views and while it has had the very good sense to impose a broadcast blackout, I cannot imagine that an English court would allow the defendant to give that evidence, or to call the sort of witnesses he plans to call. I hope I never have the occasion to be proved right.

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