Serving the Public / Serving the Machine

                      ''An honest public servant can't become rich ...'' - President Harry Truman, judge.

             Legal quote of the year so far comes from a senior counsel, speaking on condition of anonymity to the Irish Times. He (I can safely assume) said that Judge Mary Irvine's guidelines to slash minor personal injuries awards were ''Treason, as far as I'm concerned. What she has done amounts to treason against the Bar''. Based on my experience, the quote is an accurate representation of the dominant barrister mindset. 

     I like to believe that there are good people in every walk of life and that they will find a way to make a difference. That is why I was very disappointed to hear that the President of the High Court Judge Mary Irvine was being replaced by Judge David Barniville.  Despite his relative youth, Barniville has been prominent among the (commercial law) high rollers of the Bar for a decade or two. He appears to be something of a Golden Boy, fast tracked to his current position despite having served less than five years as a judge. A Judicial Fellow of international legal societies, he is also, along with Prince William, a Bencher of London's Middle Temple. Nobody knows him but he has a finger in every pie (and box of chocolates?) - a kind of Forrest Gump of legal appointments.

        Irvine's leaving simplifies the case for the prosecution. She is an old-fashioned judge with basic values, a servant of Public Law. The guys we've been saddled with in our case are actors, facilitators of a private corporate law. They have to have been consciously acting while they were mid-judge's oath (''without fear or favour''), because they could not allow themselves to mean what they were saying if they were to be open to doing favours later on. An oath is a powerful thing.  

 

       Barniville has delivered 80 judgments. That is in comparison to, say, Irvine's 228, Caroline Costello's 187,  Frank Clarke's 456, George Birmingham's 540 and Richard Humphreys' 584. Incredibly, Barniville was considered the favourite for the job two years ago, with less than 50 judgments to his name. He was even at that time a former head of the Association of Judges of Ireland. 

      The latter organisation was driven into being by Irvine's predecessor Judge Peter Kelly, following government attempts to cut judges' pay. It is a union of individuals who already have the power to put anyone they don't like behind bars, united under a Maltese constitution. Nothing to worry about there then. 

    Barniville hit the ground running, having apprenticed under Paul Gallagher SC - arguably Ireland's most powerful person (and someone who once had his dog driven in a State car from Dublin to meet him at his holiday home in Kerry, before landing E150,801 in severance pay from the same State on returning to the Bar). Even as a mere junior counsel way back in 2002, Barniville was (in common with his fellow juniors at the time, Brian Murray and Maurice Collins) pulling in a six figure sum from the State.

     I don't know how much Barniville made from the Beef and Moriarty tribunals, but it is probably safe to assume that he did alright for himself. And he hardly went hungry while representing the State in the effective nationalisation of AIB (following on from a bank bailout executed, if not designed, by senior counsel) and in European courts, most notably in helping Apple to continue to benefit from the Double Irish tax avoidance scheme. The State was also represented in the latter case by Brian Murray SC (E44,588 earnings), Maurice Collins SC (a more barrister-friendly E671,664) and the aforementioned Gallagher (E612,242).  

   It's fair to assume that Barniville is a smart buck, he scrubs up well and is an efficient administrator. I have no cause to question his honesty in delivering judgments. But his history of having been a beneficiary of the fraudulent tribunals in particular should disqualify him from any position of authority within the State. He would be in no position to call for reform of the outrageous fees and hogging of the best of same by a similar (to the chosen tribunal elite) elite of barristers in the High Court. Nor could he easily argue for a cutting of injuries awards (especially against public hospitals) or a culling of the asylum case racket, or indeed for ending the lucrative practice of case predetermination between 'opposing' legal teams. That said, there is no evidence to suggest that he may want to do any of these things. 

       Barniville joined the Judicial Appointments Advisory Board (which effectively appoints all ordinary judges) in 2014 and made no change to its practice of never interviewing its appointees. 

[The JAAB website is revelatory, as a judge under consideration for appointment to the Supreme Court or Court of Appeal does not have the amount of time he or she spent as a judge noted at all; instead ''Experience in years'' is noted for ''Senior Counsel'', ''Barrister'' and ''Solicitor'' only. This should be kept in mind when we are told about the need for a judiciary independent of other branches of government. What we actually need is a judiciary independent of the Bar.]

       Barniville's modus operandi of filling as many positions of influence as possible is the barrister/judge equivalent of corporate board-hopping. It is how power comes to be seeded in one individual. 

        Most disturbing to me is that he was appointed to the board of the Legal Services Regulatory Authority by the Bar Council while Chairman of same. This amounted to an unwarranted undermining of the independence of the regulatory authority as agreed between our government, the EU, the ECB and the IMF in December 2010. Reaching out to the LSRA is often the only hope offered to a litigant who has been a victim of barrister tricks. 

      High Court President is effectively the most important position in our courts system and, I would argue, the second position of real power in the country (second only to Attorney General, monied interests' first line of defence against representative democracy and, by peculiar and secretive 'mandate', always a senior counsel). The general media coverage of the Presidential change has been typically low-key and reverential, and unquestioning of the process of appointment.

   Why was Irvine appointed in 2020? That the job had to be given sometime to a woman for the sake of appearances was a given. Although it is hard to fault the legal profession for equal opportunities among the sexes, that is something of an illusion. Individual women do well out of their appointments, but they need to know their place when the boys are called in to deal with some unpleasantness.  

    Both of our security for costs Court of Appeal hearings were heard by female judges - one honest, one not. The preliminary appeal itself was totally dominated by two men, Judges Brian Murray and Maurice Collins, who played what looked like a well-rehearsed version of good cop/bad cop. Judge Mary Faherty, it appeared, was only there to make the tea.  

    Murray and Collins were nominated to the Court of Appeal on the same day in 2019, without having had any previous experience as judges.

     Court of Appeal judgments are normally authored by one of the three judges, with the support of the other two noted. Very unusually, Judges Murray and Collins have twice issued conjoined judgments (noting in June 2021 that the far more experienced Judge Caroline Costello ''has read this judgment in draft and agrees'';  in April of this year the agreeable lady was Judge Teresa Pilkington). I assume that this also happened with 'our' judgment, issued after 13 months of deliberation (or negotiation) in December of last year. But it is impossible to know for sure as, unusually (once again) and in common with its beloved 'settlement agreement', none of the three judges agreed to put his or her name to the document. This has happened in only 10 of the Court of Appeal's last 334 judgments. 

       For those whose job it is to arrange these things, Murray and Collins, albeit barely out of senior counsel nappies, were an obvious choice to deliver the Appeal Court majority.                                                                                                               

 

   ''All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous judiciary'' - 

                                                                                                       President Andrew Jackson, lawyer.

     Irvine was picked for the job in 2020 by three people - Judge George Birmingham, Attorney General Seamus Woulfe and consultant Jane Williams - prior to government and presidential rubber-stamping. As no interviews were conducted with the applicants and (unlike me) Williams is probably not a felon with extensive knowledge of the characters of various judges, it is difficult to imagine any circumstances in which the two men did not make the decision.   

       Barniville was picked as Irvine's replacement in a similar manner - by Birmingham, Chief Justice Donal O'Donnell and another lonely civilian (unnamed wherever I look - very lonely indeed).  O'Donnell's brother Turlough succeeded Barniville as Chairman of the Bar Council.            

      

   O'Donnell was directly appointed as a judge of the Supreme Court in 2010 (during Gallagher's first stint as Attorney General), without having had any previous experience as a judge. He was chosen as Chief Justice last year following ''discussions'' between Gallagher, Micheal Martin, Leo Varadkar and Eamonn Ryan. Oh Dear God.                            

 

   [O'Donnell and Barniville had together represented Michael Lowry at the Moriarty Tribunal. Quite how the one tribunal participant who could easily have spoiled the E66 million party ended up with a pair of barristers who would become the top two judges in the country is in retrospect worth some investigation. 

    The tribunal, chaired by Judge Michael Moriarty (Irvine's husband at the time) was primarily a non-criminal examining of the financial affairs of the barrister Charles Haughey. In the Dail, Lowry called the barristers ''untouchables'' and likened State-funded senior counsel to welfare cheats - commonly overcharging by E250 per day and even putting in for days when the tribunal was closed. The taxpayer would end up paying all of Haughey's costs (three senior counsel); and at first one third of Lowry's costs (running into ''several millions'', according to Lowry), then a bare minimum of E377,244 plus more costs following Lowry's successful appeal against some of his liability] 

                                                                                 

   Birmingham had been chosen in 2018 to be President of the Court of Appeal by a committee composed of its then President Sean Ryan, Chief Justice Frank Clarke (Birmingham's one time Fine Gael election agent in Dublin North-Central), Fine Gael activist Wolfe, Williams and Government Secretary General Martin Fraser.      

        And Clarke, who survived a misspent youth writing speeches for the barrister Garret Fitzgerald, had been chosen to be Chief Justice in 2017 by Ryan, Woulfe and Williams. I might as well add that 

Woulfe went straight to the Supreme Court (via a JAAB meeting chaired by Clarke which considered a total of one application for the post - no judges were interested in promotion apparently) without ever having been a judge. And that Brian Murray was picked by the ''government'' to replace Clarke in the Supreme Court earlier this year.  [Compare and contrast this 'process' with the intense public scrutiny to which US Supreme Court judges are subjected, for an equal nine places and less than one third more remuneration]                        

       It's hardly big enough to call it a Golden Circle. Even if all the beneficiaries of the mutual back-scratching (with platinum credit cards drawn on our collective bank account) chanced to fulfil the standard required for public office, why should any of us should assume that to happen?

   ''The passion for office among members of Congress is very great, if not absolutely disreputable ... They create offices by their own votes and then seek to fill them themselves'' -

                                                                                                                   President James Polk, lawyer.

   The Judicial Appointments Bill of Shane Ross would have had a civilian majority in place to decide on who gets anywhere in judge-world. The barrister Michael McDowell SC (incidentally a prominent physical presence at the very start of 'our' choreographed settlement on May 21st 2019, and the only unconnected barrister to ever say ''Good morning'' - or anything - to me) filibustered successfully against it in the Seanad, with the tacit approval of the Labour barrister Ivana Bacik BL, who clearly knows her place.

   ''Some of the biggest men in the United States ... are afraid of something. They know that there is a power somewhere so organised, so subtle, so watchful, so interlocked, so complete, so pervasive that they better not speak above their breath when they speak in condemnation of it'' - 

                                                                                                       President Woodrow Wilson, lawyer.

   Yet another wealthy barrister Diarmuid Rossa Phelan SC was recently granted bail following the killing of Keith Conlon. For anyone who knows the barristers as I do, his being initially denied bail was a sure sign of funny business to come.                                                                                                             The undisputed facts are that Phelan killed Conlon's dog with a shotgun and later delivered a fatal shot to the back of the unarmed Conlon's head with a revolver. If it was Conlon who had shot Phelan, I somehow doubt that the bail proceedings would have revolved around whether or not he was likely to leave the country, more likely whether or not he was a danger to society.                                                       I've noticed that Phelan, who drew a six figure sum from the State as a junior counsel at the Moriarty Tribunal, has since had a change of primary occupation. According to Wikipedia, he is now a ''farmer''.

[The most recent edit of his Wikipedia page added the words ''farmer'' ... ''mixed organic livestock ... and ... The farms also run training programs for veterinary students'' and removed the words ''and in Colorado'' - referring to another 'farm' apparently owned by Phelan. Note the American spelling of 'programs']

   Meanwhile Caitlin Corcoran, a confused and deeply traumatised young woman, has recently had her bail revoked. Corcoran gave birth to a girl in the toilets of a Waterford medical centre and allegedly left the baby to die there. She is currently behind bars, where she is limited to two visits a month. Our pro and anti abortion factions appear to be united in their indifference to her plight. Labour Party leader Bacik, who trades as a women's rights campaigner and is, like Phelan, a Fellow of Trinity College, has been notably silent. The pro choice crowd might have pointed out that it is not very unusual for a foetus to survive an abortion, in which case it is usually left to die. The pro life crowd might have added that nobody ever goes to jail for such actions. But nobody said anything. 

   So why did Judge Irvine resign more than four years before she reached the mandatory retirement age of 70? She didn't say why at first, but in her recent speech she claimed she wanted to spend more time with family. I think there's a Yes Minister quote on powerful people resigning to spend more time with family, but I can't locate it. Needless to say, it is not something that actually happens in the real world. 

    The barristers, however disgruntled, would not dare to approach Irvine directly, asking for her resignation. They don't as a habit do things like that anyway. One of those with nominal authority over Irvine - i.e. President Michael D. Higgins, Minister for Justice Helen McEntee, the Chief Justice (either Frank Clarke or Donal O'Donnell) or the Attorney General Paul Gallagher -  may have asked her to resign, who knows.       

      The most likely explanation is the simplest; that she was only given the job for a two year period only - a holding job through the dog days of the virus like Micheal Martin's. Colleagues say that she made it clear early on that three years was the most she would do. If correct that a time limit was set on her term, that raises a lot of questions. Such as, who or what gave Birmingham, Williams and Woulfe the authority to impose conditions on Irvine? Were there any other conditions she was bound by?  And would any male judge be expected to accept such conditions? 

  It looks a lot like Barniville was handpicked for the job back he was a nipper. Irvine was employed as the stopgap, also as a box ticking exercise. If family precedent is anything to go by (Barniville's grandfather was almost 36 years a Fine Gael Senator when death took him), the new President won't be leaving anytime soon. If doing his full term, that will effectively mean seven male terms following the first female term.

    Forced into retirement on turning 70, Frank Clarke is not putting the feet up on his substantial pension and writing a memoir. He has gone back to peddling his wares as a barrister/mediator. He's taking in 59 grand a year for presiding over the Law Reform Commission. And both he and Irvine's predecessor Peter Kelly have just this week sworn themselves in before Sheikh Mohammed bin Rashid al Maktoum for jobs as judges with the Dubai International Financial Centre Courts, representing a 110 acre free trade zone with zero corporation tax. This is quite a turnaround for judges who once swore oaths to God to uphold the constitution of an independent republic. 

     The DIFC Courts approached Chief Justice O'Donnell looking for candidates and he supplied them with a number of names, including those of Clarke and Kelly. In fairness to the DIFC Courts, they do actually have one female judge - which is one more than Barniville's Commercial Court has. The Chief Justice of the Courts has been criticised in Malaysia for not doing anything about two judges he knew to be corrupt, and for his having a conflict of interest created by links with the Malaysian government. Methinks the new boys should take Judge Zaki under their wing and tell him how such delicate matters are handled in old Eireann.         

    The cynicism of how the taxpayer/citizen is milked came to the fore following the recent case taken by journalists Gemma O'Doherty and John Waters challenging the constitutionality of the government lockdowns. Whatever the merits of their case, they had as much chance of winning as a fish climbing Everest. Waters admitted as much. And he certainly wasn't naive when turning down the court's offer to provide legal representatives pro bono (i.e. chosen and paid for by the State). As he put it, ''It is generally preferable in court proceedings if your lawyers are actually on your side'' [In our case, it would be a miracle - as defendants, unlike O'Doherty and Waters, we have never had a way out]. 

   The latter statement amounts to a pretty big accusation of attempted fraud against our highest court. You'd imagine that the judges would be pretty put out about it or, if guilty, wanting to be seen to be pretty put out about it. But no, not at all. Chief Justice O'Donnell announced that the court would not be ordering costs against the two journalists. In other words, the certainly six figures of costs which the taxpayer/citizen had to pay to lawyers to respond to the journalists' application in three courts will not be pursued, despite 'our' being entirely successful. O'Donnell, the author of the main judgment, is effectively speaking on behalf of the State and retrospectively making himself a party to the 'defence'. The State would have an iron clad case if challenging O'Donnell's generosity in a European court, but it won't.

   What matters, of course, is that the lawyers got their money (from us) and similar cases, being good for business while reinforcing repressive government actions, will not be discouraged. 

   What puzzles me is why the massed ranks of junior counsel, many of whom work within the law and many of whom consequently struggle to make a living, appear to have no problem with a small group of insiders divvying out the spoils to each other. They might have a crumb or two thrown to them if they please the dons, or a big slice of pie if they are particularly useful. But considering the vast sums of money involved it is never a great deal. A gravy train only has a limited number of seats.  

    Where is the barrister Serpico? 

   We should never allow the extraordinary sums of money that Irish citizens have invested in these professionals to go unquestioned. In almost every case involving the barristers and judges named in this post (Bacik, T. O'Donnell and Phelan are the most likely non-qualifiers), we are talking seven figures. One or two might even have hit eight figures (two unmentioned senior counsel passed the E9 million mark at the Moriarty Tribunal alone). If I am correct about Barniville staying the course, that means that considerable power and in the region of E3 million euro of our money will be given to an already wealthy man who wasn't interviewed for the job and offered no manifesto. 

 

  'Trust' is a favourite barrister word. They use it to hide their wealth, to avoid taxation, to (as in our company's case) expropriate property, to consolidate the power of corporations. Clients are expected to stay quiet and trust their barristers, and to trust judges to honour their oaths. In a broader sense, citizens are expected to do the same - which they are happy to do until the day that the imprisoning circus of law comes to their door. 

   It would be nice if we could trust Barniville. Maybe we can, but we shouldn't. Instead we should ask simple questions.  What are the terms of our investment? What will we get in return?  Will our institution be protected against insider manipulation? And if so, how?

   More historically relevant questions centre around what exactly the King's Inns is, whether it is simply the provider of professionally trained advocates or is something else going on. We might ask how three graduates of King's Inns never practiced law but served as Taoisigh for all but two of the years between 1979 and 1997 (interestingly, that two year Taoiseach, Albert Reynolds, formed a transnational business partnership with Patrick Russell, a known serial conman when he went on to graduate from the King's Inns in 2001) - a spell when Ireland was transformed from a closed economy to a wildly open one, a Catholic hegemony to a financial one. Did the three Taoisigh really spend all that time studying law for no reason?

   

    These are important issues. The courts belong to us. They should exist to protect, not target, the innocent among us. We must not allow their incremental subversion. When it gets to the point where poaching is actively encouraged by the gamekeepers, then it will break. They don't know it, but we might be there already.

''We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution'' - 

                                                                                                      President Abraham Lincoln, lawyer.

              PS Five days later and both Clarke and Kelly have resigned from the DIFC Courts. This might be a welcome sign that there exists a legal conscience in Ireland, or that nervousness arises when what is, I hope, a uniquely Irish approach to law is marked for export. 

     But those are not the only possible explanations.  The campaign to have the judges resign was barrister (not media, politician or activist) led and included a none too subtle Twitter reference to a naughty incident involving Kelly. It looks like a 'family' job. 

     What is becoming clear is that our actual government was never consulted about the appointments, only Attorney General Gallagher. This is telling. In judge eyes, elected or not, the AG is the government.  Judges might swear oaths to our constitution, but they're really not that into us. Their first loyalty is to the Bar. 

     Which is where we came in. Let's face it.  Our (civil law) legal system has been re-engineered to extract from Us on the outside and transfer to Them on the inside. Only an elaborate and impressive game of ritual, manners and entitlement protects it from any danger of criminal consequence. This is a game played by old English rules, where it is frowned upon for a gentleman to be expected to answer questions.   

     Where once upon a time, legal office would inspire the holder to raise his or her game, now there are no standards expected in high places. An obsession with money is rapidly becoming a requirement of office, no longer an optional extra. Cruelty is the only thing valued more than the endless lies. They can all do fakery, but it is cruelty that makes kings of insignificant little men. Honour and conscience are being or have been purged, replaced by the political opportunism of serene players with knowing, tight little smiles. 

                            ''I love judges, and I love courts'' - President William Taft,  judge.

        

            ''I'm not a crook. I've earned everything I've got'' -  President Richard Nixon, lawyer.