Opinion

Monday 16 December 2019

Return to court is a tricky task after years of being a judge

A lawyer for Daly had claimed there was no case to answer
A lawyer for Daly had claimed there was no case to answer
Dearbhail McDonald

Dearbhail McDonald

SIR Francis Pemberton, the former English Chief Justice who presided over the 1681 trial of the Archbishop of Armagh, Oliver Plunkett, was twice removed from judicial office and returned to private practice.

Juries were reportedly in awe of the fact that the fiercely-independent Pemberton could still lay down the law with judges, despite being unceremoniously dismissed as one.

For hundreds of years, barristers who accepted judicial appointment did so in the knowledge that they were forever abandoning their private practice, many of them lucrative ones, once they left the bar for the bench.

Indeed, one of the key justifications for the generous salaries and pensions, as well as security of tenure that judges have traditionally enjoyed, is to protect their dignity and independence while in office - and a prosperous retirement once they leave it.

The Irish Supreme Court, in a 1930 ruling which cited Pemberton's on the bench/off the bench forays, cautioned heavily against the return to private practice of former judges.

Former Chief Justice Hugh Kennedy said there was "good and powerful reason" in support of the rule, lest judicial reverse migration would "shake the authority of the judicial limb of government and mar the prestige and dignity of the Courts of Justice upon which the whole structure of the State must always lean".

Judge Kennedy even went so far as to declare that "a new way of scandal and corruption would be opened up" to any who would pursue judicial re-entry.

What, then, to make of former Central Criminal Court Judge Barry White's bid to return to return to private practice as a barrister and resume work in his old stomping grounds of the criminal courts?

Such a move could see him competing for business with other lawyers who appeared before him, litigating before long-standing judicial colleagues and challenging - or abandoning - his own decisions and reasons handed down in earlier cases.

Mr White, one of the busiest criminal defence lawyers in the country before he became a judge, has presided over some of the biggest criminal trials in modern Irish history.

But now the 70-year-old wants to go back into private practice and has applied to the Bar Council - the ruling body for some 2,500 barristers - for readmission to the Law Library.

Judges are entitled to reapply for membership of the Law Library after retirement or resignation.

But because of the 1930 Supreme Court case involving a solicitor judge called James O'Connor, judges can only re-join the library on condition that they don't practice in any court equal to or less than the one they served in. O'Connor, who hadn't served as a judge for more than five years when he sought readmission, was allowed to return to his old job as a solicitor as long as he didn't practice in any court where he had sat as a judge.

The ruling found its way in to the Bar Council's Code of Conduct, which effectively bars High and Supreme Court judges from returning to private practice, a fact highlighted by the current judiciary when the Government held a referendum to allow their pay to be reduced while in office. The few that have done so in recent times, including former Supreme Court Judge Fidelma Macken, have largely confined themselves to advisory work or mediation and do not seek rights of audience in the courts.

Because of the senior position Mr White held, he can only practice in the Supreme Court or Court of Appeal if he re-joins the Law Library. But he wants the Bar Council to waive the rule and, if it doesn't, he may return to private practice as a non law library lawyer. Other countries do permit re-entry, but usually after a five-year period to avoid any conflicts and the perception that judges could, like Pemberton, still lay down the law.

Mr White's wish to rejoin his barrister brethren could set down a fascinating new precedent at a time when the lure of judicial appointment is not what it once was.

Irish Independent

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