The endangered lawyer and cost of independence

Unfortunately, we have no statistics for how many lawyers across the world have been threatened, harmed or killed for their work. What we do know is that the danger that accompanies being a lawyer depends in large part on the type of law and the country in which you practise.

The International Day of the Endangered Lawyer, held on 24 January, falls on the anniversary of the 1977 Atocha Massacre, when the offices of a Madrid law firm were stormed by gunmen who opened fire. Five were killed and four were seriously injured. It was a tragedy that El País newspaper considered to be ‘the night Spain’s transition to democracy nearly derailed’, were it not for the huge public outcry and peaceful protests that followed. Each year a different country is chosen to be the focus. Last year it was Iran, this year it was Belarus.

As we learnt in the summer of 2004 in the wake of the Southport attack and subsequent riots, it does not take much for lawyers to find themselves in the firing line. Years of loose political talk vilifying immigration and human rights lawyers opened the door to the circulation of a list on social media identifying ‘targets’ that included the names, offices and home addresses of many of our colleagues here in the UK. Offices were forced to close temporarily and working practices altered to ensure their safety.

Before qualifying as a barrister in the UK, I worked as a human rights observer in Colombia for a number of years. When I left in 2014, close to 400 lawyers had been killed in the previous 13 years as a result of their work. For many of the lawyers I worked with, threats and acts of intimidation were not uncommon and included threatening letters hand delivered to your door or being followed as you picked up your child from school. It was an open secret that those in the public sector might be asked to tamper with evidence or guarantee a case outcome. The first case I ever observed was a retrial – the first judge had been shot and killed in her car on the way to court. It was always assumed that in these cases the judge or lawyer would have been given a choice: drop the case and you live; ‘plata o plomo’ – take the bribe or bullet.

The one thing uniting all these types of violence is that the ultimate target is the judge or lawyer’s independence: the arguments we are prepared to put forwards; the clients we are asked to represent. While the risk for some comes in the form of threats of violence, the reality for many is a threat far more subtle – the threat to their livelihood. It is neither cheap nor easy to become a lawyer and involves a multitude of sacrifices. Imagine your employment as a prosecutor, or appointment as a judge were conditional on you making decisions that were favourable to the government, what would you do? It probably wouldn’t even be a direct request, it would come in the form of an expectation, a suggestion.

In September 2024 I had the opportunity to join the Bar Council’s development visit to Mexico City. The visit was timed to coincide with the International Bar Association Annual Conference, a gathering of thousands of lawyers from across the world, including a sizeable group of us from the UK. It was fortuitous timing, coinciding with the anniversary of Mexican independence and the inauguration of Mexico’s first female President, Claudia Sheinbaum, the following month.

However, as far as our Mexican counterparts were concerned, any excitement was overshadowed by a number of judicial reforms voted in by the legislature over those days.

The city was awash with protest and strikes. The conference itself was not exempt either. On the first day I manoeuvred through a group of protesters outside the conference centre and into the Opening Ceremony, which included an emotive speech by the Chief Justice of the Supreme Court followed by some rousing oratory from former President Ernesto Zedillo. The mock trial – the highlight of the conference for us criminal practitioners – was due to take place at the Supreme Court but had to be moved at the last-minute owing to the strikes. Just days earlier, the Senate had been stormed by protesters.

Judicial independence and corruption have long been an issue in Mexico so I doubt anyone would disagree that significant reform was much needed. However, it was not clear whether these bold reforms were actually aimed at ending all judicial corruption, or if it was aimed more towards eliminating that which was ‘unhelpful’ to the government. Let me explain.

The most novel of the proposed reforms sought to start afresh and re-appoint judges at all levels – as many as 7,000 positions. Firstly, there would be an open call for candidates. Judicial and government committees would then filter these down to a pool of ‘suitable’ candidates. The remaining candidates would then go to a popular vote. Judge-ships would be for a fixed term and then subject to ‘re-election’. It will be the first such exercise of its kind in the world.

Many of my Mexican counterparts had real concerns that candidates with political or financial capital were those most likely to make it past the filtering stage and onto the electoral ballot. Anyone critical of the government would be filtered out quietly. Goodbye judicial independence. Would our Supreme Court have decided differently when it came to Rwanda or Brexit if their re-election was dependent on getting past a government committee?

Secondly, there were concerns that a public vote would reduce the quality and impartiality of the judiciary. What would a desirable candidate look like? Those with political or financial backing would undoubtedly have an advantage in courting the public. Those with more extreme views or those with greater charm might get disproportionate press attention. Those pushing high conviction rates and harsher sentences could be expected to garner stronger popular support. It will be interesting to see if mercy or nuanced sentencing has a place on the election platform. The appointment of judges in this manner makes the role a political one. I picture Lady Justice keeping one eye on her scales but the other firmly on the opinion polls, and adjusting those scales accordingly.

Mexico may seem far away and its justice system is undoubtedly different to ours. Nevertheless, the credibility of justice systems in both our countries is dependent on the independence of its lawyers and judges. It is therefore incumbent upon us to support our colleagues in other countries and there is no shortage of opportunity. A starting point for many will be the Inns of Court which offer programmes to support our counterparts, be it through exchange visits, conferences or training. There are also organisations that plan observation missions or the drafting of amicus curiae.

In March 2024, an independent delegation of international lawyers travelled to Nepal in response to civil society requests for a fact-finding investigation into the rule of law and access to justice in the context of transitional justice laws. The year before, there was a delegation to Guatemala. These projects were organised by a number of UK charities (PBI, A4AID) and lawyers (Doughty Street, Law Society etc.). Likewise, every two years there is a delegation of lawyers who travel to Colombia to monitor and report on similar issues (Colombian Caravana).

During my time in Latin America, I saw first-hand the real impact that shining an international spotlight has on these threats. Aside from raising the profile of the issue and offering support to those involved, it reaffirms what the norms are. It highlights the international consensus that independence is a non-negotiable principle of our work and we must have the freedom to exercise that independence without threat to lives or livelihoods.