Within days of Mr Justice Johnson’s decision to seek contempt proceedings against Rajiv Menon KC because of that barrister’s closing speech to the jury in a Palestine Action criminal damage trial, I happened to be making a closing speech to a jury. Neither the case nor the personnel of my case are relevant to what happened next, but it is telling that counsel for the prosecution appeared to invoke Mr Justice Johnson’s imprimatur to rebuke me for stepping over the boundary as to what was acceptable to say to the jury.
Chilling effect on defence advocates
Thankfully, nothing of substance came of that. Not so for Menon. On 22 June 2026, Mr Justice Johnson handed down his approved judgment in Menon’s case such that he now faces a possible two-year prison sentence for defending his client in what was, it seems to me, in accordance with his professional duties and obligations.
As a highly experienced and successful member of the English bar, Menon was giving his closing speech in a case that involved pro-Palestine activists who broke into an Elbit Systems UK arms factory. The trial judge alleged that Menon deliberately ignored directions and misled the jury by discussing jury equity and the war in Gaza.
Constitutional safeguard under threat
The judgment is significant not only for those directly affected by practising in the criminal courts but society as a whole because it starkly demonstrates how words spoken by those defending their clients – the traditional fortress of forensic freedom – can attract the machinery of contempt. The seriousness of that needs to be understood. The prospect of contempt proceedings is in danger of imposing a chilling effect on the willingness of defence advocates to test, for example, institutional misconduct themes robustly before a jury.
As I experienced first-hand, the risk will discourage advocates from deploying precisely those tools that the adversarial system contemplates. Defence counsel in cases involving allegations of police misconduct, for example, must be able to put credibility challenges with vigour, to name dishonesty where the evidence supports it, and to invite jurors to engage empathetically with the defendant’s experience. If such language can attract a contempt referral, advocates will face an unwelcome calculation: whether to advance the strongest case open to them or to temper their rhetoric in order to insulate themselves from future jeopardy.
Fair trial and public confidence
The right to a fair trial, protected by article 6 of the European convention on human rights and embedded in the common law long before that instrument was enacted, encompasses the right to effective legal representation. Effectiveness, in a jury trial, requires more than the formal presence of counsel; it demands that counsel be free to deploy every legitimate forensic tool available to challenge the prosecution case. Public confidence in the criminal justice system depends upon the perception – as much as the reality – that proceedings are conducted fairly and that no party enters the courtroom at a structural disadvantage.
A climate in which defence advocates self-censor out of fear of contempt undermines that perception. If it becomes publicly known that counsel in cases involving police misconduct temper their submissions to avoid personal exposure, reasonable observers will question whether the adversarial process retains its integrity. That erosion of confidence is corrosive: the legitimacy of jury verdicts – acquittal and conviction alike – rests in part upon the assurance that they were returned after the defence case was pressed as fully and fearlessly as the evidence permitted.
Risk of wrongful conviction
The quality of jury deliberation is also imperilled. Jurors are lay decision-makers. They depend upon counsel to distil complex factual and legal questions into accessible, persuasive narrative. A closing speech that is moderated by the advocate’s anxiety about personal sanction is likely to be less effective. The result is not necessarily that the jury reaches the wrong verdict, but that it does so with a thinner and less complete presentation of the defence case than the evidence would have supported.
The risk of wrongful conviction must be a key factor here. It is an uncomfortable but empirically grounded observation that a disproportionate number of wrongful convictions in England and Wales have involved some form of police misconduct, whether in the gathering of evidence, the presentation of testimony or the suppression of material. Cases of that kind depend heavily upon vigorous adversarial challenge in the closing speech. If that challenge is muted, the risk that a factually innocent defendant is convicted is materially increased. The chilling effect of Menon’s case thus carries a direct, if unquantifiable, contribution to the wrongful conviction risk that the system as a whole must bear.
Constitutional equilibrium disturbed
As for barristers themselves, if senior advocates perceive that hard cases carry a personal professional hazard not faced in more conventional litigation, the rational response is to avoid that kind of work. Defendants in such cases will find themselves represented by advocates who are either less experienced or less willing to advance their case with full forensic force. What price, then, the quality of justice?
But what is most fundamentally at stake is the constitutional value of fearless advocacy itself. The principle that counsel must be free to advance a client’s case without fear of personal retribution is not a professional privilege; it is a constitutional safeguard. It reflects the understanding, embedded in centuries of common law, that the state – which commands the resources of the police, the Crown Prosecution Service and the wider apparatus of prosecution – should not also be able to deter challenges to its own witnesses through the threat of proceedings against the advocate raising them.
When the contempt is used or threatened in the context of advocacy, that constitutional equilibrium is disturbed.
Society has a collective interest in maintaining it – not for the benefit of the bar, but for the benefit of every person who may one day stand accused, and for the integrity of the process by which guilt or innocence is determined in their name. That vigilance should start here.
