The prosecution of a barrister for words spoken in defence of a client is not, in Britain, supposed to happen. Yet that is where we find ourselves. This week, Garden Court Chambers confirmed that one of its leading silks, Rajiv Menon KC, is facing contempt proceedings over a closing speech delivered during the so-called Filton trial, in which pro-Palestinian activists were prosecuted for damaging property belonging to Elbit Systems, Israel’s largest arms manufacturer.
Rajiv Menon KC. Credit: Garden Court Chambers.
This is disconcerting, to say the least and the implications stretch far beyond one courtroom, one KC, or even one controversial protest movement.
For what is at stake is whether defence advocates in politically charged cases can still speak freely in front of juries without fearing criminal sanction from the bench.
According to Garden Court, this is believed to be the first time in English legal history that a barrister has faced contempt proceedings for a closing speech at a criminal trial. The chambers described the procedure being used against Menon as “wholly novel and without historical precedent”.
This alone should ring the bells of alarm to anyone concerned with the independence of the Bar.
The underlying case was already a magnet for controversy. Six activists linked to Palestine Action, a government proscribed terror group, were accused of breaking into an Elbit factory in Filton, near Bristol, and smashing drones allegedly destined for use in Gaza. The defence sought to argue “lawful excuse”: namely that criminal damage could be justified if intended to prevent a greater crime, in this case genocide.
The judge, Mr Justice Johnson, ruled that argument as being unavailable in law.
That ruling was consequential not simply because it narrowed the defence, but because it effectively killed any wider discussion of Britain’s relationship to Israel’s war in Gaza. The jury was instructed not to consider whether the activists genuinely believed they were acting to save lives. In political trials, such exclusions matter because they surely shape what jurors are permitted to hear about motive, morality and context. Without context, their acts would appear to be that of thuggery. With context, they are rooted in a long tradition of civil disobedience in the pacifist mould.
So Menon responsed. In his closing speech, he was to remind jurors of an older and deeper constitutional tradition: that of the independence of the jury from judicial command.
He reached to the past and there invoked Bushell’s Case of 1670, in which jurors refused to convict Quaker defendants despite pressure from the judge. In that moment, the principle was established pthat juries cannot be punished for their verdicts. Menon repeatedly stressed that no judge may direct a jury to convict.
“No judge in any criminal case is allowed to direct a jury to convict any defendant of any criminal charge, whatever the evidence might be. That is the law,” Menon said. And went on to say: “if His Lordship does decide to express an opinion on the evidence, please do not, under any circumstances, misinterpret that opinion as a legal direction, because it is not.”
For this, Menon now faces possible contempt proceedings.
The official allegation is that Menon encouraged jurors to disregard judicial directions.
He did not appear to do so.
In fact Menon said: “So, for the avoidance of any doubt about this, I am absolutely not asking you to disregard His Lordship’s legal directions. On the contrary, I’m asking you to follow them, in particular this section on functions of judge and jury, and remind you that nobody, not even His Lordship, can dictate to you what factual conclusions to reach in this case, nor direct you to convict the defendants of any of the charges they face.”
To be clear: defence barristers have a constitutional function that is adversarial and they are expected to test the limits of the prosecution’s case, to challenge judicial assumptions and to advance their client’s interests within the law. That principle is foundational to British justice.
So the danger lies not merely in whether Menon is ultimately punished (a personal tragedy), but in the precedent created by bringing the proceedings at all (a legal one).
Once barristers begin calculating whether robust advocacy may expose them personally to prosecution, self-censorship follows naturally and, needless to say, this is a real threat to rigorous defence under the law.
Garden Court’s warning about a “chilling effect” on the Bar is therefore not hyperbole. As they say: “such action is bound to undermine the confidence of the public that those charged, particularly in political and controversial cases, can receive the committed representation that they would expect to be provided.”
For if prosecutors or judges begin treating forceful jury advocacy as potential contempt, the practical consequence is obvious: fewer advocates willing to take risks for unpopular defendants.
All of this comes at a moment when protest rights in Britain are already narrowing. Successive governments have expanded police powers around demonstrations, criminalised forms of direct action once treated as civil disobedience, and increasingly blurred distinctions between extremism and dissent. Palestine Action’s proscription as a terrorist organisation marked a particularly concerning shift: it was the first time a non-violent direct action network had reportedly been designated in such a way.
Against that backdrop, the Menon proceedings seem to stand in an environment of control. The control of political narratives around Gaza, of protest and – in the end – of legitimacy.
The Court of Appeal will now determine whether these contempt proceedings can continue. But regardless of outcome, it seems a line has been crossed. For when a defence advocate can plausibly fear prosecution for reminding jurors of their constitutional independence, there will be consequences to that fear.
Britain’s legal system depends not only on judicial authority, but on the confidence that advocates may defend clients without intimidation from the state. Once that confidence erodes, political trials risk losing their impartiality.
That should concern everyone, regardless of their views on Palestine Action, Gaza, or direct action politics. And this is, in the end, because powers created for exceptional cases rarely remain confined to them.
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