The Homophobic Cayman Brief: An Ignominious Near-Rebuke to Ms Dinah Rose KC – Part I

by | Dec 2, 2022

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About Edwin Cameron and Gilbert Marcus

Edwin Cameron (Inspecting Judge, Correctional Services; Chancellor of Stellenbosch University) and Gilbert Marcus, SC (Senior Counsel in practice at the Johannesburg Bar)  

Image description: A group of people walking under a rainbow flag. 

Previously on this site (see here and here), we explained why Ms Dinah Rose KC was duty-bound when she became President of Magdalen College to give up a brief she held to represent the Cayman Government in enforcing its homophobic prohibition on same sex marriage.

Ms Rose’s first appearance in that litigation was in the Cayman Court of Appeal, in August 2019, when she appeared for the Government.  She argued that the Court should overturn a first-instance judgment which ruled that two women, Chantelle Day and Vicky Bodden Bush, should be allowed to marry.

Ms Rose persuaded the Court of Appeal to reverse that order.  On 7 November 2019 it did so.  It ruled in the Government’s favour: the prohibition on marriage equality for same-sex couples was reinstated.

This obliged the two women to take recourse to the Privy Council in London.  The Cayman Government retained Ms Rose as its leading counsel to resist their appeal.

But something important intervened.  In February 2020, not long after her success in the Cayman appeal court, Ms Rose was elected President of Magdalen College, Oxford.  She took up the post in September 2020.   Seemingly unflustered by her new responsibilities, Ms Rose adhered to her brief on behalf of the Cayman Government.

We contended that this was untenable.  Our argument was two-fold.

First, holding onto the brief after becoming President of Magdalen created intolerable conflict of interest for Ms Rose.  As counsel, she doubtless owed the Cayman Government her best efforts.  But she now simultaneously owed an overriding pastoral duty to the LGBTQI students in her care at Magdalen.  This was to ensure that the College offered them a safe haven from the bullying, taunts and assaults that all too often – even in Oxford – still target queer people.  Promoting, professionally, the homophobic cause of a homophobic government was incompatible with that duty and violated the trust the College had placed in her.

In short, she could not, as a barrister, advance homophobic causes while professing to nurture and protect vulnerable young minds and personalities at Magdalen. (See, here for Justice Cameron’s full statement)

Aside from the call of ordinary good sense, Magdalen’s equality policy explicitly committed the College – and of course its President – to eliminating victimisation and harassment on grounds including sexual orientation.  How could Ms Rose possibly honour that commitment while as a barrister she actively advanced the cause of a homophobic government – and took its coin to do so? This question, which we asked, was never answered.

The second part of our argument was more intricate.  It was that, even though professional rules of advocacy were irrelevant to Ms Rose’s now-primary duties as President of Magdalen, those rules didn’t apply anyhow.  The “cab rank rule”, which Ms Rose sought to invoke in defence of hanging onto her brief, had no application.

In fact, the Code of Conduct for Barristers allowed her to refuse the Cayman brief because it entailed a “foreign” instruction.  The Code does not oblige a UK barrister to accept a “foreign” brief.

Now why did we trouble with the cab-rank rule at all?  It was because Ms Rose never engaged with our conflict of interest argument. Instead, she kicked up dust.  She invoked Bar rules.  She repeatedly sought to justify holding onto the homophobic brief because, so she said, the “cab rank rule” obliged her to do so.  She claimed that, as a “rule of professional conduct under the Bar Standards Board Code”, the cab-rank rule “specifically prohibits Barristers from refusing a brief which they are qualified and available to undertake on the ground that they or a section of the public disagree with or disapprove of the opinions or position of the client”. (See here for Ms Dinah Rose’s full statement)

This was doubly off-tangent.  Not only was the rule (as we contended) inapplicable – but Ms Rose’s obligation as President of Magdalen to the queer students in her care was hardly a matter of whether they “disagreed with” or “disapproved of” the Cayman Government’s homophobic stance.  Her professional endeavours on behalf of a homophobic government were harmful to the LGBTIQ students in her care and incompatible with her solemn duties to them.

Undaunted, Ms Rose went on to claim that “as an instruction to appear in a court sitting in England in an area in which I was expert, received when I was available to act, I was obliged to accept it”.

This punched a third hole in Ms Rose’s attempted defence.  No doubt she was “available to act” when she accepted the brief, in 2019 or earlier (and, no doubt, when “available” she could not decline to act because of the nature of her client).

But she became President of Magdalen in 2020, after taking the brief.  The duty to her students, to the queer community of Oxford, to the principles of equality the University espoused, and specifically those of her own College, superseded her previous “availability to act”.

Ms Rose’s arguments kicked up enough dust to divert attention from our primary argument.  Yet the wheels of justice have been slowly grinding.

Want to learn more?

Read: The Cab Rank Rule

Read: No Constitutional Right to Same-Sex Marriage in the Cayman Island

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