Prosecution of Palestine Action barrister has left lawyers ‘uncertain and scared'

Senior lawyers and legal figures in the UK have warned that the prosecution for contempt of court of a leading human rights barrister who represented Palestine Action activists is having a chilling effect across the bar.

Rajiv Menon KC is alleged to have breached the judge’s directions in a closing speech he delivered in January at the conclusion of the first trial of six Palestine Action defendants accused of causing criminal damage to weapons at an Israeli arms factory outside Bristol. 

Menon is alleged, in particular, to have breached the judge's directions by reminding the jury of their right to acquit on conscience – something the trial judge, Mr Justice Johnson, had barred the defence from alluding to.

On Wednesday evening, Riel Karmy-Jones KC, chair of the Criminal Bar Association, told an online meeting of senior legal figures in support of Menon that his case is already impacting the work of lawyers, who she said are “changing their speeches or being told to change them”. 

“And that really can’t be ignored, because people at the criminal bar have become uncertain and scared of what they can and can’t say, scared that somehow they might be, at the end of a trial where they have faithfully represented their client themselves, facing a charge of criminal contempt,” Karmy-Jones said.

In May, the Court of Appeal found that Mr Justice Johnson had unlawfully initiated proceedings against Menon by referring the case to the High Court. 

A panel of three judges concluded that Johnson should have either dealt with the matter himself at the time, or referred it to the attorney general (AG).

But following a hearing last month, Johnson rejected these options and referred the matter again to another High Court judge. He said he had found “there is a case to answer in contempt” and that it is “in the public interest to institute” proceedings.

That High Court judge, Justice Nicklin, found in late June "sufficient material to justify the institution of contempt proceedings against Mr Menon KC in respect of parts of his closing address to the jury".

'A line has been overstepped'

Pete Weatherby KC, who chaired the online meeting of senior legal figures, noted that: “If there was a case to answer, so serious that the public interest pointed toward prosecution, it should obviously have been referred to the AG, and I cannot begin to imagine why the judge thought otherwise."

Menon's hearing is set for next week. He said that his lawyers filed an appeal on Monday, but that just before the meeting the trial judge had informed him that she was not rescheduling the trial. 

'By initiating these proceedings, the trust between the prosecution and defence has been fundamentally betrayed, it has been broken'

– Henry Blaxland KC

“We have written to the Court of Appeal as a matter of urgency,” said Menon.

Henry Blaxland KC noted the “disturbing” involvement of the prosecution in Menon’s case, as proceedings were initiated by them via a submission to the judge, saying it is tantamount to an “abuse of prosecutorial power”.

“If something has happened in the face of the court, it is for the judge to decide whether or not his or her order has been ignored," Blaxland said. "The prosecution may raise concerns, but to positively advocate for proceedings to be taken, it seems to me that a line has been overstepped.

"By initiating these proceedings, the trust between the prosecution and defence has been fundamentally betrayed, it has been broken," Blaxland added.

Raju Bhatt, a partner and founder in the leading public and human rights law firm Bhatt Murphy, said that the "rule of law had been flouted not by [Menon]" but by "two senior members of the judiciary who were all too ready to exceed their jurisdiction, as the Court of Appeal has already found", referring to Johnson and Justice Edis, to whom the case was initially referred.

Bhatt said that the proceedings against Menon were "born of fear that the jury might do the right thing".

Liz Davies KC, who attended the meeting, told Middle East Eye some 800 people joined the event, with lawyers, politicians and NGOs also present.

"The unifying message was the extraordinary regard in which Rajiv is held, and the shock that we all have at what is happening to him," she said.