High profile judge (71) who needs to work to support his family can return to practice as a barrister
Published 22/07/2016 | 13:22
Retired judge Barry White can return to practice as a barrister, the High Court has found.
Mr Justice Max Barrett said Mr White, a former High and Central Criminal Court judge, is entitled to practice again without having to be a member of the Law Library.
Mr Justice Barrett said he can "return to his specialised line of practice before the Circuit Court and beyond.
"This is an ambition he will now be able to fulfill," Mr Justice Barrett said
He quashed a decision by the Minister for Justice to refuse to include Mr White on a panel of counsel eligible to work under the criminal legal aid scheme.
However, the judge declined to declare unconstitutional a rule of the Bar Council's code of conduct, which prevented him from returning to practice, because he said the Bar is effectively a private club which is entitled to operate its own rules.
He also declined to award him damages or to find there had been a breach of his European convention rights.
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Mr White (71), who retired in 2014 after 12 years as a a judge, claimed the Bar Council rule, and alleged impermissible application of that rule by the Minister so as to exclude him from the criminal legal aid panel breached his constitutional rights to work and earn a livelihood.
The disputed rule prevented a judge resuming practise in a court equal to, or lower than, where he presided. In Mr White’s case, that prevented him practising in the criminal courts and confines him to the Court of Appeal and Supreme Courts.
As part of his action, Mr White, a father-of-four, claimed 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 38pc in his pension entitlements.
The Bar Council and Minister denied any breach of rights and said he had not shown he needed to return out of economic necessity.
It was argued Mr White had had a successful criminal practise before earning between €145-240,000 annually over 12 years as a judge.
He also 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 Bar Council argued. His wife is also working.
In his judgment, Mr Justice Barrett said current appeal court judge and distinguished constitutional expert, Gerard Hogan, had written in an article in 1988 that there was no strict legal impediment to a judge returning to practice.
That was a convention which arose out of a 1930 Supreme Court ruling concerning a judge who also wanted to return to practice after he retired.
Mr Justice Barrett said he could not but observe that that decision, though eloquently crafted in the style of its time, "is premised on notions that strike a discordant tone in our more meritocratic and egalitarian age."
That Supreme Court judgment referred to the role of a judge as "a sacred office", Mr justice Barrett said.
"Being a judge is undoubtedly a responsible job, and it is a privilege to be given the job, but ultimately it is just a job.
"The idea it is a sacred office i.e connected with some god or dedicated to a religious purpose, and so deserving of veneration, is with every respect to a rightly respected judge, fanciful."