A pro-Hamas march in London, United Kingdom, Feb. 17, 2024. Photo: Chrissa Giannakoudi via Reuters Connect

Rajiv Menon KC (short for King’s Counsel) was the advocate defending the Palestine Action activists in the case of R v Head. The activists had entered the facilities of Elbit Systems, an Israeli company, and inflicted around £1.2m of damage to company property, and injured the spine of an intervening police officer.

While two were acquitted, and four others retried and convicted, it was Menon’s closing speech to the jury that has become most controversial.

The presiding judge had directed Menon on six occasions not to invoke the principle of jury equity as a defense, nor to refer to the history of the Middle East, and not to advise that the court cannot direct them to convict, when he gave his closing speech.

Despite these directions, which as an officer of the court Menon is obliged to comply with, he defied them.

While not using the exact words “jury equity,” he asked the jury to apply its principles; in support of this, he expressly quoted the words from the plaque at the Old Bailey, the preeminent criminal court, describing the “right of juries to give their verdict according to their convictions.” The reference, in connection with the repeated invocation of jury equity, was clear in its intent.

What is more, he told the jury six times that the judge may not direct the jury to convict. As we shall see, though it is true that the judge cannot give such a direction, it is also true that defense counsel cannot tell the jury of this principle, and that Menon was directed by the judge not to tell them.

The court also alleged that Menon made statements which could suggest the court was not impartial: he claimed that the defendants had been improperly denied the opportunity to give evidence about Elbit Systems, saying that Elbit Systems were being “protected” and “wined and dined in the corridors of power.”

Following the trial, the judge referred the matter to another High Court Judge to decide whether contempt of court proceedings should be initiated. The contempt of court proceedings were approved by another judge.

Menon now faces the risk of criminal sanctions, including a fine, and imprisonment up to two years. And, as Menon will surely know, a person may be found criminally liable for contempt of court if they disobey or ignore a court order.

Many have panicked about the so-called “chilling effect” resulting from this decision, which they say is found only in authoritarian countries, is “entirely disproportionate,” and is “Kafkaesque.”

Unsurprisingly, the chambers at which Menon works, Garden Court Chambers, have taken up his cause. Others preoccupied with anything remotely to do with Palestinians, such as The Guardian, have joined them in sounding the alarm.

The scaremongers say the prosecution is unprecedented, arguing that, “No lawyer in British legal history has ever been prosecuted for contempt for the contents of a closing speech.”

While Menon’s situation is indeed unique, this cannot excuse his conduct.

As an officer of the court, Menon’s deliberate defiance of the judge’s explicit directions is itself unprecedented and warrants the proceedings.

As the complaint against him says, “it is fundamental to the rule of law that orders and rulings made by a judge in the course of a criminal trial are obeyed by those participating in the proceedings, including the advocates appearing in the case.”

Did Menon have recourse if he felt the judge’s direction erred? Of course. While Menon should need no reminding, if he believes a ruling is wrong in law, or otherwise open to challenge, the law provides means of redress.

So yes, this case is unprecedented, but in a way that is inconvenient for Menon’s cheerleaders and their cause.

Returning to the alarmist language of Menon’s supporters, it is not the case that the judge changed Menon’s speech, or told him to change it. That is contrary to the court record. Menon was directed, in line with court precedent, not to tell the jury to return a verdict based on factors other than the evidence and the law.

One may well feel that the jury ought to have acquitted according to their consciences. That principle is centuries-long. But no defense counsel should be entitled to claim sanctuary with that principle, in violation of every professional obligation and the rule of law, simply because it suits their case, their client, or their worldview.

Asher Abramson is a dual-qualified UK lawyer based in Israel.