Minister must reconsider Barry White’s bid to practice, court rules

Retired judge’s right to be placed on legal aid list for barristers ‘remains to be considered’

The Minister for Justice must reconsider retired High Court judge Barry White’s application to resume practising as a criminal defence barrister, the Court of Appeal has ruled.

While the three-judge court dismissed aspects of an appeal by the Minister against a High Court decision that he could resume practice, it said the question of his entitlement to be placed on the legal aid panel for barristers “remains to be further considered and decided by the Minister”.

Ms Justice Mary Finlay Geoghegan, on behalf of the appeal court, allowed the Minister’s appeal over findings by the High Court the refusal was unreasonable and an interference with his constitutional right to earn a livelihood.

Mr White (71), a former High and Central Criminal Court judge, claimed he needed to return to practice out of economic necessity, among other reasons, because his €78,000 pension is not enough to meet his family’s needs.

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In the High Court last July, Mr Justice Max Barrett ruled Mr White can be included on the State-funded panel for criminal legal aid work without being subject to Bar Council regulation.

The Minister had argued the Criminal Justice (Legal Aid) Act 1962, and regulations made under that Act in 1965, meant barristers seeking to be added to the legal aid panel must be regulated by the Bar Council.

Criminal defence practice

Her refusal to include Mr White, who had an extensive criminal defence practice before being appointed a judge, was based on a Bar Council rule perceived as restraining judges from resuming practice in courts lower than where they had presided.

Mr Justice Barrett found there is no legal requirement for a barrister to be regulated by the Bar Council before they can be included on the panel.

A core issue in the Minister’s appeal centred on construction of Section 5 of the 1965 Criminal Justice (Legal Aid) Regulations providing for the Bar Council to forward names of practising barristers for inclusion on the criminal legal aid panel.

In its judgment, the Court of Appeal said the High Court correctly found the Minister’s refusal to include Mr White’s name on the panel, for the reason the Minister gave, was made outside her powers and he was entitled to have that decision quashed.

The Minister did not purport to exercise a discretion on the facts of this application but rather took the view she did not have before her a valid notification from the Bar Council, the judge said.

It was important to emphasise the lawfulness of the Bar Council’s code of conduct rule had not yet been decided, she stressed.

The potentially relevant issues still to be decided include whether Mr White was or is willing to act for people to whom a legal aid certificate is granted; whether he is now subject to the code of conduct; and the lawfulness of rule 5.21 of the code, the judge added.

Not fully considered

The fact that barristers, including those who are not members of the Law Library, are subject to regulation by the benchers of the Kings Inns had not been fully considered during the case, she also noted.

The Kings Inns rules provide it is the duty of barristers to comply with the Bar Council’s Code of Conduct, she said.

The judge also held the High Court erred in finding that the disputed decision was unreasonable in law and an interference with Mr White’s right to earn a livelihood as protected by Article 40.3 of the Constitution.

Ms Justice Finlay Geoghegan, noting the High Court’s reference to a previous case where a judge had described being a judge as “just a job”, said that was inconsistent with the Constitution and should not stand.

“It is a fundamental misconception to consider being a judge to be ‘just a job’,” she said.

The position of someone who practised as a barrister, was then appointed a judge, and seeks to return to practice after retiring, “remains for consideration”, she said.