Minister’s refusal to place former High Court Judge on the criminal defence list was breach of constitutional rights

The High Court has held that Mr Barry White, a retired High Court judge, can return to practice as a barrister acting as an advocate in the Circuit Court – thereby breaching the tradition that retired barristers-turned-judges who return to practice as barrister-advocates, do not appear before a court of equal or lower jurisdiction than that in which they used formerly to sit as a judge.

In a letter to the Department of Justice and Equality in October 2015, Mr White indicated that, should he return to practice as a barrister engaged in advocacy, he would not:

(a) Refer to his prior judicial status in any practice related context;

(b) Appear in any case which he has heard as a judge or was connected with as a judge;

(c) Appear in any case where one of his decisions as a judge is substantively in issue;

(d) Provide advice about the interpretation of any of his previous judicial decisions that is intended to elaborate or… clarify such a decision;

(e) Use in practice any confidential information obtained by him while a judge.


The principal decision regarding this tradition was that of Chief Justice Kennedy in O’Connor IR 623, concerning an application by a judge who wanted to return to practice as a solicitor. In this case it was posited that there was a common ‘understanding’ that upon such an individual being appointed a judge, the practice of law by that individual would be abandoned forever.

In O’Connor, it was stated that there was ‘good and powerful reason in support of such a rule’, including the suggestion that the judge-turned-barrister would ‘still be regarded as laying down the law with judicial authority’, and ‘would tend to overbear inferior Courts’.

Justice Barrett set out several points to note about O’Connor, including that the decision was not a judgment of the Supreme Court, that it was not supported by ‘any modern precedent’, and was largely speculative reasoning ungrounded in case law. Furthermore, Kennedy’s judgement was a form of ‘decision of first impression’, i.e. one that set out the facts and then advocated that a particular vision of justice and morality suggested that a certain end was desirable and hence correct.

Justice Barrett therefore indicated his uncertainty that the High Court should be bound by the decision in O’Connor

Justice Barrett then turned to reflect upon an article on the O’Connor decision, recognising that a barrister should enjoy a common law right of audience in all courts; that there was no strict legal impediment in the way of a judge who wished to resume practice at the bar; and furthermore, ‘since the Supreme Court… held that a barrister who becomes a judge reverts to the status of barrister upon his vacation of judicial office… convention apart, a former judge enjoys an unqualified legal right of audience in all courts should he resume his practice at the bar’ (Dr Gerard Hogan, ‘Chief Justice Kennedy and Sir James O’Connor’s Application’ (1988) Irish Jurist 144).

Accepting this view as correct, Justice Barrett stated that while the precedential force of O’Connor was uncertain, there was no need to seek to circumvent or distinguish it: the legal position, even post­ O’Connor, is that there is a conventional understanding.

Moreover, Justice Barrett indicated that the judgement was antiquated and that society is of ‘a less deferential age’, therefore ‘Mr White should expect to be given no quarter by counsel or court upon return to practice’.

Justice Barrett went on to state that in this regard, ‘the notion of any court or judge being overborne by the sight of a former judge acting as an advocate sits entirely askance with… the judicial oath of office… whereby every judge swears duly and faithfully to execute the office of judge “without fear or favour, affection or ill­will towards any” and to “uphold the Constitution and the laws” of our great republic’.

Distinguishing Mr White’s circumstances from those concerning the removal of a disgraced judge as in Curtin v Dáil Éireann 2 IR 556, Justice Barrett held that Mr White ‘consistently discharged the role of judge with honour, and only retired upon reaching mandatory retirement age’.

The Bar Council and the Minister for Justice

On 14th November 2014, Mr White notified the Bar Council that he wished to be placed on the defence counsel list.

Regulation 5(3) of the Criminal Justice (Legal Aid) Regulations 1965, provides: ‘Where… the Council is notified by a counsel of his willingness to act for persons granted certificates for free legal aid… the Council shall notify the Minister of such wish and the Minister shall amend accordingly the list kept by him pursuant to this Regulation by adding thereto…the name of the counsel… ‘

Consistent with these mandatory requirements, the Bar Council notified the Minister of Mr White’s wish in this regard.

However, the Minister failed to amend the defence counsel list consequent upon the notification from the Bar Council, and effectively ‘grafted on’ to the Regulations of 1965 an additional requirement that a barrister be regulated by the Bar Council before s/he may be admitted to the defence counsel list.

Justice Barrett held that by doing so, the Minister acted unreasonably, arbitrarily, contrary to law, in a manner not effective to achieve the purpose or aim of the Act or Regulations, and ultra vires.

Therefore the Bar Council had not erred in law, but the Minister had.

Constitutional Right to Earn a Livelihood

The right to earn a livelihood was recognised in Murtagh Properties Limited v Cleary IR 330 as one of those unspecified or undefined rights arising under Article 40.3 of the Constitution.

Justice Barrett specified that Mr White’s particular specialisation as a practising barrister was in criminal defence advocacy before the Circuit Court and onward appeals, and that as a gentleman in his seventies ‘the notion that he could train himself into a new line of work and raise himself at this time to the standard of expertise necessary to place himself at the forefront of a different line of legal work is a theoretical possibility but a practical nonsense’

Therefore by depriving ‘a man in his seventies of the meaningful possibility of “earning his crust’” …in circumstances where in reality that is the only métier which that man now possesses’, the Minister unlawfully circumscribed Mr White’s constitutional right to earn a livelihood.

To the extent that Mr White established an interference with his constitutional right to earn a livelihood, for the same reasons he established a breach of his related constitutional property rights.


Justice Barrett granted four of the various reliefs sought, including an order of certiorari quashing the decision of the Minister to refuse to include Mr White’s name on the panel of counsel.

As to reliefs for damages, it was held that Mr White had not established that he suffered any loss by virtue of all that occurred, therefore declining damages sought.

Mr White could be placed by the Minister on the criminal defence list and return to his specialised line of practice before the Circuit Court and beyond.

  • by Róise Connolly for Irish Legal News
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