The Irish Criminal Bar strike of today, is not the first time the Irish Bar has gone on strike, though it is the first time members of a sector of the Irish Bar have gone on strike countrywide.
There have been at least two previous cases where the Irish Bar has issued edicts prohibiting members from appearing before certain members of the judiciary whose conduct has been deemed improper. In 1790, the court of the Lord Chancellor, Lord Clonmel, was boycotted for a day after he used rough language to Counsellor Hacket. According to Jonah Barrington:
“The judges sat, but no counsel appearance, no cause was appeared… and their Lordships had the Court to themselves. There was no alternative, and next day Lord Clonmel published a very ample apology by advertisement, in the newspapers, and, with excellent address, made it appear as if written on the evening of the offence, and therefore voluntary.”
An account of a more recent Bar Council resolution directing barristers not to appear before a particular judge, involving the Eastern Circuit, may be found in the Leinster Leader of 19 April 1947:
“NO BARRISTERS APPEAR
NAAS INCIDENT RECALLED
No barristers appeared at Trim Circuit Court on Monday before Judge Fawsitt.
When a case was called, Capt. P Cowan, solicitor, said that the Bar Council had declined to accept a brief before his Lordship and in those circumstances, he was applying for an adjournment.
Mr. Sean O’hUadhaigh said he was in the same position.
All cases listed for hearing at the Meath Criminal Session in Trim before Judge Fawsitt, were adjourned on application.
Notices to jurors were cancelled.
The matter was a result of a resolution passed by the Bar Council arising out of an incident at Naas Circuit Court in March.
At that Court Judge Fawsitt affirmed, on appeal, the decision of the Kildare Circuit Court, in the case in which Private Wm McGrath (22), Married Quarters, Curragh Camp, had been sentenced to six weeks’ imprisonment with hard labour, and fined £10 for dangerous driving on October 6 arising out of a collision with a hackney car, as a result of which James McNamara, the driver, Tarbert, Co Kerry, lost his right arm.
After the Judge had given his decision, Mr. Thomas A Doyle, B.L., said he had not got an opportunity to address him on behalf of McGrath; he would like the Judge’s indulgence to bring several matters before his notice, which would perhaps affect his decision.
Judge Fawsitt – I have given my final decision. If I had had the other defendant before me, Lieut. Dagg, who was in charge of the military lorry, I would have increased the penalties in his case. I have rarely listened to more dangerous driving.
Mr. Doyle – I intend to press the case.
Judge – I told you sit down.
Mr. Doyle – I will not sit down.
Judge – Will the Sergeant come forward?
Mr. Doyle – I wish to point out to you sir –
Judge – Remove Mr. Doyle, Sergeant.
As the Sergeant came forward and put his hand on Mr. Doyle’s arm, Mr. Doyle turned to the Judge and declared: I protest in the strongest possible manner. You are not behaving in a manner befitting the bench.”
Judge – You have made your protest.
Mr. Doyle – I have not finished my protest.
Mr. Doyle then left the Court accompanied by the Sergeant.
It is understood that the matter was discussed by the Council of the Bar of Ireland, and a resolution was passed to the effect that no member shall appear in Judge Fawsitt’s Court unless and until he apologises to Mr. T.A. Doyle in open Court.
Judge Fawsitt’s Circuit embraces Louth, Meath, Wexford and Wicklow.”
The terms of the resolution passed by the Bar Council on March 31, 1947, were as follows:
“That, having considered the circumstances of the case, and even assuming that the circumstances were as stated by Judge Fawsitt, the Council is of opinion:
- That Judge Fawsitt was not entitled to order the removal from Court of Mr. T.A. Doyle BL, and that the arrest and removal of Mr. T.A. Doyle constituted a serious infringement of the rights of Counsel.
- That in view of the Judge’s refusal to apologise for his action, members of the Bar should not practice in his Court until such time as an adequate apology to Mr. Doyle in open Court is forthcoming.”
The matter was happily resolved the following month. According to the Drogheda Argus and Leinster Journal of 26 April 1947:
“With handsomely generous apologies on both sides, the regrettable misunderstanding between Judge Fawsitt and Mr. T.A. Doyle, Barrister-at-Law, ended happily at Trim Court on Monday, when Judge Fawsitt apologized to Mr. Doyle, saying that:
‘The regret and sorrow which I have expressed are due in the circumstances which I now understand existed that day. At the time you addressed me and insisted on being heard, I had not adverted to the real grounds of your application, namely, that I had refused to hear you as Counsel in the criminal appeal that morning. That was the ground on which you asked me to hear you in the forenoon.
You state that I refused to allow you to speak in the morning on the criminal appeal, and that at the close of the evidence of the appellant you again asked me and that I waved you aside. I have no recollection of doing either. In the circumstances I must accept your statement as being accurate. On the assumption that I did refuse to hear you in the morning, I must admit that I made a mistake,
It is the traditional right of a barrister briefed in a case to be allowed to address the court. If you had done in the morning what you did in the afternoon – persist in your application to be heard – you would in that case have been heard. If you had persisted, I would have a recollection of it. I assume you did not, but I accept your statement that you asked me and I refused. I regret the initial mistake. It seems to me, having regard to the ground of your application in the afternoon, but for the initial mistake what happened could not have occurred.’”
According to Judge Fawsitt, the request which he made to Mr. Doyle to sit down was proper but would never have been made had he (the Judge) not being guilty of the initial mistake. The order which he made to have Mr. Doyle removed from the Court in the afternoon, though a necessary and correct order at the time and in the circumstances then present, was vitiated by his mistake earlier. ‘Accordingly, I express my regret and sorrow that I ordered you to leave the Court,’ said the Judge. ‘I have already admitted that the fault was mine in the morning. That was the one ground on which I have expressed my regret. I am glad to see you back.’
Mr. Doyle, replying, said that he would like to refer to the happy relations which had previously existed between Judge Fawsitt as the presiding Judge, on the one hand, and himself as a member of the Bar. He was very glad to think that these happy relations would continue for a long time.
Peace having broken out, the happy relations between Mr. Doyle and the judge did indeed continue until the latter’s retirement in 1954. Judge Fawsitt (not to be confused with his son, also a judge) died in 1957. His obituary in the New Ross Standard of 6 May 1967, states, regarding his later years:
“Shortly after his retirement, as his wife was dead, he left his home at Galloping Green, Foxrock, and resided in a suite of rooms at the Royal Marine Hotel, Dun Laoghaire, where he did a lot of reading and writing. Interspersed in such quiet occupations were interesting journeys. He did a round-Ireland trip with members of the Irish Railway Records Society in a train drawn by a steam locomotive, at a time when steam power had become but a memory, which the Society helped to revive. He visited famous parts of Europe, and in 1960 did a tour around the world.”
A nationalist, republican, journalist, and civil servant as well as a judge, and last, but not least, a Corkman, Judge Fawsitt’s personal papers have recently been donated to the archives of his native county.
As for T.A. Doyle BL, he went on to become T.A. Doyle SC, appearing as a silk in many important cases of the 1960s and 70s. In his spare time, he was an opera buff – a photograph of him at the Dublin Grand Opera Society of Spring 1957 may be viewed here.
You can support the Irish Criminal Bar in its efforts to secure fee reform by signing this open letter.