Retired judge Barry White can return to practise as a barrister, the High Court has found.
Mr Justice Max Barrett yesterday said Mr White, a former High and Central Criminal Court judge, is entitled to practise again without having to be a member of the Law Library.
That means a return to his specialised line of practice before the Circuit Court and beyond, the judge said. “This is an ambition he will now be able to fulfil,” he 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.
In his judgement, 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 non-legally binding tradition arose out of a 1930 Supreme Court ruling concerning a judge who also wanted to return to practice as a solicitor after he retired. That judge was allowed do so provided he did not appear in court.
Mr Justice Barrett said he could not but observe that that decision “is premised on notions that strike a discordant tone in our more meritocratic and egalitarian age”.
That 1930 ruling 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.”
That 1930 ruling also made reference to a former judge having to “compete with... practitioners for the feed business of the court”. This was “imbued with antediluvian pretensions of judicial superiority that belong to yesteryear and have no place in our republic of equals”, Judge Barrett said.
He also did not accept that, due to his previous position, Mr White would “tend to overbear inferior courts”. In our less deferential age, Mr White “should expect to be given no quarter by counsel or court upon return to practice”.
Judge Barrett found there had been a violation of Mr White’s right to earn a livelihood on the basis of his constitutional property rights.
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