Thursday 23 November 2017

Retired judge challenging rule preventing him from returning to practice as barrister

Retired judge Barry White
Retired judge Barry White

A RECENTLY retired judge wants to resume practice as a barrister "due to economic necessity", the High Court heard.

Barry White, who presided over a many high-profile trials before retiring last year, says he is being prevented from doing so by an unconstitutional Bar Council rule.

Lawyers for Mr White (71) secured leave from Mr Justice Seamus Noonan Wednesday (Oct 21) to bring a judicial review challenge over the rule. 

That rule is based on an 85-year-old Supreme Court decision in a 1930 case which prevents retired judges resuming private practise in a court equal to or less than the court of which they were a judge.

Mr White had told the Bar Council, in a letter, his wish to resume practise was due to “economic necessity”.

He has four children, two at university and two at secondary school, "with all that entails", he wrote.

Mr White was called to the Bar in 1967 and became a senior counsel in 1992. When appointed a High Court judge in 2002, he had an extensive practise at the criminal Bar. 

He had to retire as a judge at age 70 after a career in which he presided over many high profile criminal trials, including of Eamon Lillis, convicted of the manslaughter of his wife Celine, and Joe O'Reilly, serving a life sentence for the murder of his wife Rachel. 

Since his retirement, Mr White has had discussions with the Bar Council and Minister for Justice on his application for a waiver of the rule so he can resume practise but to no avail, John Rogers SC,  for Mr White, said.

Mr Rogers argued the rule breaches Mr White's constitutional rights, including to work and earn a livelihood.

Other grounds of challenge include that the rule is "law-making" in breach of the Constitution, anti-competitive and disproportionate. The case also raises issues concern the monopoly position of the Bar Council, Mr Rogers said.

The Bar Council also has no jurisdiction to impose conditions on judges returning to practise and the Minister has no power to enforce such restrictions, it is argued.

A solicitor may resume practise as a solicitor on retiring as a judge but a barrister judge cannot unless they operate outside the Law Library, counsel said. 

The vast majority of the State's barristers are members of the Law Library and such membership requires adherence to the Bar Council Code of Conduct.

Mr Justice Noonan said Mr White had an arguable case for judicial review and was entitled to be granted leave. A hearing date will be fixed at a later stage.

It is claimed application of the disputed rule would mean Mr White would be confined to practising before the Supreme Court or the new Court of Appeal.

Mr Rogers said Mr White had taken legal advice and had meetings with the Bar Council and Department in pursuit of his application for a waiver from the rule, which can be granted in certain circumstances.

Prior to his appointment as a judge, Mr White he had a practise in the criminal trial courts that was dominated by reliance on the criminal legal aid scheme, counsel said.

A relevant regulation provided, when a barrister wants to be admitted to the panel for that scheme, they advise the Bar Council.

Mr White's case was that the regulation means, once a barrister indicates they wish to be placed on the panel, the Bar must notify the Minister who must put the barrister on the panel.

Mr White wrote to the Minister effectively asking to be placed on the panel but was told a barrister could only be placed if subject to regulation by the Bar Council. 

Mr White had offered undertakings to meet the objections arising from the 1930 Supreme Court case, counsel said.

That (the O'Connor case) concerned a man who was first a solicitor, later a successful barrister and later a judge.

That man decided, in the "aftermath of revolution", he would prefer not to continue as a judge and sought readmission to the solicitor's profession.

The then Chief Justice adopted the view there was "good and powerful" reason to support a rule against re-admission on grounds including it would "shake the authority" of the courts. 

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