Ex-judge challenges rule blocking him from working as barrister

Retired Central Criminal Court judge Barry White wants to resume practice as a barrister “due to economic necessity” but is being prevented doing so by an unconstitutional Bar Council rule, it has been claimed at the High Court.

Lawyers for Mr White (71) secured leave from Mr Justice Seamus Noonan to bring a judicial review challenge over the rule, based on an 85-year-old Supreme Court decision in a 1930 case, the O’Connor case. The rule prevents retired judges resuming private practice 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 that his wish to resume practice 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 practice at the criminal Bar.

He had to retire as a judge at age 70 after a judicial career which saw him preside over many high profile criminal trials including of Eamon Lillis, convicted of the manslaughter of his wife Celine Cawley, 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 Bar Council rule so he can resume practice but to no avail, John Rogers SC, with Cian Ferriter SC, for Mr White said.

Mr Rogers argued the rule breaches Mr White’s constiutional rights, including to work and earn a livelihood. Other grounds of challenge included the rule is “law-making” in breach of the Constitution, anti-competitive and disproportionate. The case also raises issues concerning the monopoly position of the Bar Council, Mr Rogers said.

His case was that the Bar Council has no jurisdiction to impose conditions on judges returning to practice and the Minister has no power to enforce such restrictions, counsel argued. Members of the Law Library have combined to make this rule which causes a distortion of competition and is therefore null and void, he argued.

The Minister is proposing codification of the regulation of the legal profession but has not yet done so, counsel added.

A solicitor may resume practice 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 on the grounds advanced. A hearing date will be fixed at a later stage.

The case is against the Bar Council, Minister for Justice and the State.

In Mr White’s case, application of the disputed rule would mean he 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 had a practice 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 noitify 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 what was said by the then Chief Justice in the 1930 O’Connor case, counsel said. That 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, counsel said.

The then Chief Justice adopted a “trenchant” view there was “good and powerful” reason to support a rule against readmission on grounds including it would “shake the authority” of the courts.  That was a view of the then Chief Justice rather than a Supreme Court decision, Mr Rogers argued.

After the Bar Council decided it would not change its position, the Minister decided Mr White was not regulated and refused to admit him to the criminal legal scheme panel, counsel said.