The Court of Appeal has reserved judgment on an appeal by the Minister for Justice's against a finding that retired judge Barry White can resume practising as a criminal defence barrister without being subject to Bar Council rules.
Mr White (71), a former High and Central Criminal Court judge, says he has a constitutional right to work and needs to do so out of economic necessity as his €78,000 pension is not enough to meet his family’s needs.
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.
He found there was no legal requirement for a barrister to be regulated by the Bar Council before they can be included on the panel and the Minister’s refusal breached Mr White’s constitutional rights to work and earn a livelihood.
He rejected Mr White’s claim the Bar Council rule was unconstitutional, describing it as a “convention”, not a rule of law.
When the Minister's appeal opened on Tuesday, Court of Appeal president, Mr Justice Sean Ryan, asked the sides to consider whether a particular point identified by the appeal court had implications for this appeal.
Ms Justice Mary Finlay Geoghegan said the legal point arose as a result of the High Court referring to Mr White being subject to judicial oversight and the disciplinary committee of the benchers of the Kings Inns.
Code of conduct
Rule 30 of the Kings Inns provides for a duty of barristers to comply with the Bar Council code of conduct and makes them subject to the jurisdiction of various Bar tribunals, she observed.
Eoghan Fitzsimons SC, for the Minister, said, as far as his side is concerned, the Kings Inns rules imply Mr White is subject to regulation by the Bar Council and meant “the end” of Mr White’s case.
John Rogers SC, for Mr White, disagreed, saying the substance of the appeal seemed to be statutory regulation.
A core issue in the appeal centres 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.
Mr Fitzsimons argued the appeal court was entitled to take judicial notice, when the 1962 law was enacted, practising barristers were all members of the Law Library. The Act and 1965 regulations must be construed to mean barristers must be regulated by the Bar Council because, otherwise, there would effectively be no regulation of barristers seeking to be added to the panel, he said.
That would yield an “absurd” result where even qualified barristers with criminal convictions would be eligible, he said. Mr White is not a “practising barrister” so he cannot go forward for inclusion on the panel, he added.
Mr Rogers said the Minister, by insisting Mr White must be regulated by the Bar Council before he can be added to the panel, was seeking to advance a policy without statutory authority as Section 5 was “unambiguous” in containing no such requirement.
Asked by Mr Justice Ryan whether that meant any qualified barrister, irrespective of any infirmity or depravity of character, must be put on the legal aid panel, Mr Rogers said that was a “floodgates” argument.
If the regulations are weak, it is up to the Minister “to put them right”, he said.
Cian Ferriter SC, also for Mr White, rejected as “far-fetched” arguments by Mr Fitzsimons even a murderer could be put on the legal aid panel if Mr White’s arguments were correct.
The court said it would give judgment as soon as possible.
