Tuesday 27 September 2016

Former high-profile judge who wants to return to work will be 'very happy man' with decision

Published 08/07/2016 | 17:54

Former High Court Judge Barry White, pictured arriving at the Four Courts this week for judgement in a High Court action. Pic: Collins Courts
Former High Court Judge Barry White, pictured arriving at the Four Courts this week for judgement in a High Court action. Pic: Collins Courts

Retired judge Barry White will be "a very happy man" when the High Court gives its decision on his action seeking permission to be allowed to return to practice at the bar.

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That was the parting comment of Mr Justice Max Barrett on Friday when he reserved judgment on Mr White's action.

At the conclusion of the four day hearing, Mr Justice Barrett said he believes his forthcoming judgment “will make Mr White a very happy man”.

Mr White (71), who retired in 2014 after 12 years as a High Court judge, claims a Bar Council rule, and alleged impermissible application of that rule by the Minister for Justice so as to exclude him from the panel of barristers eligible for criminal legal aid work, breach his constitutional rights to work and earn a livelihood.

Former High Court Judge Barry White, pictured arriving at the Four Courts this week for judgement in a High Court action.Pic: Collins Courts
Former High Court Judge Barry White, pictured arriving at the Four Courts this week for judgement in a High Court action.Pic: Collins Courts

Mr White jailed wife killers Joe O'Reilly, Brian Kearney and Eamonn Lillis during 12 years in the Central Criminal court as well as presiding over several harrowing rape cases.

He wants to be permitted resume a criminal defence practise and is also claiming damages for the alleged breaches.

The disputed rule prevents a judge resuming practise in a court equal to, or lower than, where he presided. In Mr White’s case, it prevents him practising in the criminal courts and confines him to the Court of Appeal and Supreme Courts.

In closing arguments in the case, Cian Ferriter SC, for Mr White, rejected arguments by the Bar Council and Minister the perception of a fair administration of justice would be adversely affected should Mr White resume practise in the criminal courts.

The disputed rule was rooted in a “stratified social mindscape” of 19th century Victorian England, counsel said.

It assumed, in a modern 21st century constitutional Republic, judges in lower courts would be “so overborne” by having a former High Court judge making arguments to them they could not make an objective decision.

That was not the case, counsel argued.

As part of his action, Mr White, a father of four, claims he needs to resume work out of economic necessity and his existing income is not adequate to his family’s needs.

He had also suffered cuts of some 38 per cent in his pension entitlements.

The Bar Council and Minister denied any breach of constitutional rights and also argued Mr White has not proven his claim he needs to resume work out of economic necessity.

Mr White had had a successful criminal practise before earning between €145-240,000 annually over 12 years as a judge, got a €250,000 lump sum on retirement, had a €78,000 annual pension and previously inherited an estimated €1m plus from his late mother’s estate, the Council argued. His wife is also working.

In reply to such arguments, Mr Ferriter said Mr White “absolutely accepts” many people will not share his perception of what constitutes an adequate income. Mr White has an annual pension of some €78,000 and four children in full time education, counsel said.

Mr White was a victim of an “unlawful Catch 22” position where he is entitled, as a criminal defence barrister, to go on the criminal legal aid panel,  but is shut out from that, counsel said. Both the Council and Minister were responsible for that.

Earlier, Eoghan Fitzsimons SC, for the Minister, said some €60m is spent annually on the criminal legal aid system and the State was entitled to ensure those in receipt of legal aid were regulated.

Mr White could practise in the Court of Appeal and Supreme Court or take on work such as arbitration but had chosen not to do so, he said.

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